text:
    Porter v. Huff.
    Opinion delivered January 21, 1924.
    Highways — adverse possession. — Where a landowner placed gates across a road running through his land and maintained same for 10 or 11 years with the public’s acquiescence, the public lost any right it previously had in such road.
    Appeal from Fulton Chancery Court; Lyman F. Reeder, Chancellor;
    affirmed.

      E. II. Lamore and II. A. Northcutt, for appellant.
    1. The public has established a right to use the roadway by prescription. 102 Ark. 553. 2. The obstruction of the road worked a peculiar injury to appellant, not common to the general public, and he is entitled to have the same abated as a nuisance. 89 Ark. 177; 77 Ark. 228.

      G. E. Elmore, for appellee.
    1. Appellee had the right to discontinue the permissive travel through his premises at any time. The fact that he kept up his fence and gates since 1912 shows that he never intended to dedicate the road to public use, and that those who passed through his farm did so permissively. To constitute a public road by adverse use, this use must be open, adverse, notorious and continuous for seven years, and with the knowledge of the owner of the land. 47 Ark. 431; 50 Ark. 53. See also 47 Ark. 66; 135 Ark. 496; 59 Ark. 35-42; 83 Ark. 236, 240.
   Humphreys, J.

The question presented by this appeal for determination is whether appellee had the right to obstruct a road running through his land to the Moton school and churchhouse and burying ground, situated on the Ash Plat road. He purchased, the land over which the road ran from appellant in 1911, and moved thereon in the early part of the year 1912. He inclosed same in April, 1912, and, in doing so, built a fence on the division line between appellant and himself, placing a gate at the point where the road crossed the dividing line. Before leaving his land the road passed through his barn lot, where he placed two more gates. These gates remained across the road for ten or eleven years, at which time he built a new fence on his own side and closed up the gate. During the ten or eleven year interval appellant and his family used the road in going to and from the school and church. Other neighbors occasionally used it. The gates were opened and closed by those who made use thereof. The road was never worked by the public. The county court exercised no actual control over it by appointing a road overseer or otherwise. Appellant introduced testimony tending to show that, before the gates were put in, the public had used the road, more or less, for forty or fifty years. Appellee testified that the so-called road was a mere way or trail through his land, which he permitted his neighbors to use as a matter of convenience.

Appellant seeks to reverse the decree of the chancery court upon the ground that the public had either acquired a rig'ht to use the road by prescription, or else by using it openly, continuously, and adversely for more than seven years. It is unnecessary to decide whether the public acquired a right to the use of the road as a public road by prescription or seven years adverse possession, for it lost any right it may have acquired by acquiescing in a permissive use thereof for a period of more than seven years after the road was closed by gates. When appellee inclosed his land and placed gates across the road, it was notice to the public that thereafter they were passing through the land by permission, and not by right. The undisputed evidence shows that these gates were maintained by appellee across the road for ten or eleven years, without objection on the part of the public.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    First National Bank of Hartford v. Lewis.
    Opinion delivered January 14, 1924.
    1. Appeal and error — conflict in instructions — harmless error. —In an action by a bank against the indorsers of a note, while a correct instruction that it was the duty of the bank to use reasonable diligence in filing the mortgage which secured the note, was contradicted by an erroneous one to the effect that it was the bank’s duty to file the mortgage in apt time, no prejudice resulted where the bank delayed for an unreasonable time before filing the mortgage.
    2. Mortgages — name of mortgagor. — Where a mortgagor was the same person in two mortgages of same property under different names by which he was known, both mortgages were valid between the parties thereto, and the question of priority depended upon the date of filing.

      Appeal from Sebastian Circuit Court, Greenwood District; John E. Tatum, Judge;
    affirmed.

      A. M. Dobbs and G. W. Dodd, for appellant.
    Plaintiff’s motion for a directed verdict in its favor should have been sustained:
    1. Before the defendants could recover on their cross^eomplain-t, it was necessary to show that they would have had a valid subsisting lien by virtue of their mortgage, if it had been filed without delay; and, in order to make of the mortgage a valid and subsisting lien, it must have been indorsed as required by C. & M. Digest, § 7384; 130 Ark. 2iS7; 37 Ark. 507; 43 Ark. 144; 52 Ark. 164; 83 Ark. 109; 121 Ark. 346.
    2. When Presson took the cotton, defendants’ mortgage was then on file, and if their mortgagor’s correct name was J. H. Rottenberry, they could have recovered as against Presson, even though Presson’s mortgage was filed prior to their mortgage, and if J. P. Rodenberry was the man’s correct name, they could not have recovered as ag’ainst Presson, if their mortgage had been filed as it is alleged should have been. 156 Ark. 291; 34 So. (Ala.) 392.
    3. The burden was on appellees to show that the mortgage given by their principal to Presson was a valid lien, in order to establish their case for recoupment against the appellant bank; and, in order to do this, it devolved on them to show that the Presson mortgage was supported by a valid subsisting indebtedness. 156 Ark. 142.

      Holland S Holland, for appellees.
    1. Appellant became the agent of appellees for the purpose of filing the mortgage. It was therefore its duty to properly indorse and sign the mortgage in compliance with the statute, C. & M. Digest, § 7384. If it be held that there was no proper indorsement on the mortgage, the fault lies with the appellant. 11 Corpus Juris, 510, § 186. See 121 Ark. 349; 40 Ark. 431; 601 Ark. 112. Substantial compliance with the statute is all that is required. 130 Ark. 287, and cases cited. Appellant should not !be permitted to take advantage of its own fault or negligent act, nor to plead the same as a defense. 54 Ark. 273; 20 R. C. L. 22.
    2. If appellant had promptly filed the mortgage, it would have been notice to a searcher of the records, and notice to the subsequent mortgagee, Presson, notwithstanding the slight misprision in the spelling of the names, since it recited such facts and matter as to place a person on inquiry from which the identity of the mortgagor and of the property would have been revealed. 152 N. W. 354; 19 R. C. L. 288; 23 R. C. L. 194; 54 Ark. 273.
   Smith, J.

J. H. Rottenberry borrowed a sum. of money from the Bank of Hartford and executed a note therefor on April 19, 1920, with M. B. Lewis and J. W. Smedley as indorsers. To hold the indorsers or sureties harmless a mortgage was taken on certain live stock and a crop of cotton. This mortgage, which was dated April 19, 1920, was left with the bank to be indorsed and filed with the clerk and recorder, but was not indorsed and filed until May 26, 1920.

On May 5, 1920, the same mortgagor, under the name of J. P. Rodenbery, executed a second mortgage to J. L. Presson, on the same property, and on that date Presson indorsed his mortgage: “This instrument to be filed but not recorded. ' (Signed) J. L. Presson, mortgagee,” and filed it with the clerk and recorder on that date. •

When the mortgage to Smedley and Lewis was filed it contained the following indorsement: “J. H. Rotten-berry, mortgagor, to J. W. Smedley and M. B. Lewis, mortgagees. This instrument to be filed but not recorded. Bank of Hartford, by ....................................................”

The proceeds of the mortgaged property were used in paying the Presson debt.

The Bank of Hartford was succeeded by the First National Bank of Hartford, which bank .sued the signers of the note, upon its maturity and nonpayment, and Smedley and Lewis defended upon the ground that the *bank, through its negligence in failing to file the mortgage to them, had occasioned them a loss in excess of their liability on the note sued oil There was a verdict and judgment for Smedley and Lewis, and the bank has appealed.

The court gave, at the bank’s request, an instruction to the effect that it was the duty of the bank to use reasonable diligence in filing the mortgage; and also gave an instruction, at the defendant’s request, to the effect that it was the bank’s duty to file the mortgage in apt time. It is pointed out that these instructions are in conflict, and that the one given at the bank’s request correctly declared the law. We think this is true, but, in our opinion, no prejudice resulted from this conflict, because the bank delayed for an unreasonable length of time the filing of this mortgage. As we have said, the mortgage was executed April 19, and was not filed until May 26, and no explanation was offered of this delay for thirty-seven days to do a thing which could have been done in a short time on any day.

It is insisted, for the reversal of the judgment, that there was no damage to Smedley and Lewis, for the reason that the mortgage to them would not have been a lien on the property therein described. Two reasons for this statement are advanced. The first is that the mortgage as filed was not properly indorsed, and could not, therefore, have been a lien on the property mortgaged. Two answers are made to this argument. The first is that the bank, having undertaken to file the mortgage, could and should have made a proper indorsement thereon, and could not free itself of this responsibility by making an indorsement which was insufficient to accomplish the purpose of its agency. The second answer is that the bank so long delayed the filing that a proper indorsement would have been ineffective, as the second mortgage was filed bef ore the Smedley and Lewi^ mortgage was filed. In other words, the lien of the second. mortgage had attached by the prior filing of that mortgage before the bank offered, to file the Smedley and Lewis mortgage, and the prior lien thus acquired would not have been displaced, even though the Smedley and Lewis mortgage had been properly indorsed.

The second insistence is that, when Presson took the cotton, resulting in appellees’ loss, their mortgage was then on file, and, if the mortgagor ’s name was J. H. Bottenberry, they could have recovered as ¡against Presson, even though the Presson mortgage was filed prior to their mortgage; and if J. P. Bodenbery was the mortgagor’s correct name, they could not have recovered as against Presson, if their mortgage had been filed promptly.

In support of this contention the case of McReynolds v. First National Bank, 156 Ark. 291, is cited. In this case it was held (to quote a syllabus): “Where one full Christian name of the grantor in a deed or mortgage is used, this imparts notice to one examining the title, though there is an error in the middle initial of his name; but where initials only are used, they take the place of the Christian name, and in such case the correct initials are necessary to give notice.”

There would be much force in this argument if the question were whether the mortgagor’s name was Bottenberry or Bodenbery; but the testimony shows that the mortgagor was the same person in both mortgages, and that he was known by both names. This being true, both mortgages were valid as between the parties .thereto, and the question of priority would depend upon the date of filing. This being true, it would be no defense for the bank to show that, when it filed the mortgage from Bottenberry, no other mortgage from Bottenberry had been filed, because the mortgage from Bodenberry had been previously filed, and that was a valid mortgage because the mortgagor was known and could be identified by the name which he there signed. There was no mistake in the initials, such as was present in the McReynolds case, supra, and, unlike the McReynolds case, each mortgage here considered would have constituted a valid lien from the time of its proper filing.

There appears to be no error, and the judgment is affirmed.


author: Humphreys, J. McCulloch, C. J.

text:
    Haley v. Sullivan.
    Opinion delivered January 14, 1924.
    1. Highways — claim for preliminary expenses — -void act.— A claim for preliminary expenses in organizing a road district must be founded on a valid statute.
    2. Highways — encroachment on county court’s jurisdiction.— Special act No. 341 of 1920, creating an improvement district to construct a highway between certain towns, the highway to follow as near as practicable the present traveled road between the towns, but empowering the commissioners to build the road “over and along the most favorable and practicable route,” conferred authority on them to select a route different from that designated by the act, and was invalid, under Const., art. 7, § 28, for encroaching on the jurisdiction of the county court in matters relating to public roads.
    Appeal from Polk Chancery Court; James D. Shaver, Chancellor;
    reversed. '

      Norwood S Alley, for appellant.
    The trial court erred in holding that a contract could only be made with tlie engineer for preliminary surveys and estimates, and that this does not include such work by the engineer as called for cross-sectioning preparatory to applying for Federal aid. The engineer was entitled to recover the proportionate value of the work done to the whole engineering service to be furnished. 115 Ark. 445. While the contract for the entire work was premature, yet it must be considered as evidence in determining the value of the services rendered. 149 Ark. 476; 151 Ark. 47. Federal aid was necessary to the district, and the work done was necessary, and properly classed as preliminary expenses. 119 Ark. 201.

      Lake & Lake, for appellee.
    Act 321 contravenes art. 7, § 28, of the Constitution, and is void. The Legislature exceeded its authority in authorizing the commissioners to deviate materially from the route as laid out if it was found more favorable to adopt such new route. 89 Ark. 513. Since the act is unconstitutional, no liability rests upon the taxpayers to pay for anything that was done thereunder by Haley and the commissioners. 126 Ark. 416; 122 Ark. 491.
   Humphreys, J.

There is a direct and cross-appeal in this case.

The direct appeal presents the question of whether the trial court allowed a sufficient amount to J. F. Haley for his services as engineer in making the preliminary survey of the road to be constructed and in estimating the cost of the improvement.

The cross-appeal presents the question of whether act 341 of the General Assembly, approved February 25, 1920, conflicts with § 28, article 7, of the Constitution of the State, by encroaching on the exclusive original jurisdiction of the county court over all matters relating to public roads in the county.

We proceed to a consideration of the latter question because, in the view of the majority, the act is void, which view automatically eliminates the question presented for consideration on the direct appeal. A claim for preliminary expenses in organizing a road district must be founded on a valid act. A void act will not support such a claim.

Section 3 of the act in question is as follows: “Said district is hereby created and organized for the purpose of building, improving and maintaining a public highway from the town of Wicks, in Polk County, Arkansas, eastward to Baker Springs, in Howard County, Arkansas, and to intersect the public highway in Road Improvement District No. 2 in Howard County, Arkansas, at or near «aid Bakér Springs, and which said road shall follow, as near as practicable, the present traveled road from the said town of Wicks to the termini at or near said Baker Springs, in Howard County, Arkansas. Said commissioners here appointed are empowered, however, to build said road over and along the most favorable and practicable route. Said highway is to be constructed of macadam or such other materials as the commissioners may deem best or suitable, and they are authorized to build such bridges and1 culverts as may be by them deemed necessary and desirable. ' Any bridges of the first class built shall be approved by the county court in the county in which such bridge or bridges may be built.”

The constitutionality of the act might be upheld under the rules of construction invoked in the recent case of Wimberly v. Road Improvement District No. 7, 161 Ark. 79, if it were not for the following clause of § 3 thereof:

“Said commissioners here appointed are empowered, however, to build said road over and along the most favorable and practicable route.”

This clause follows language in the same section similar to language used in § 2 of act 312, passed at the same session of the Legislature, which we construed in the Wimberly case as conferring power upon' the commissioners to make immaterial changes only in the MenaCherry Hill Road. The sentence or clause quoted is much broader than the language which precedes it, and plainly attempts to confer authority on the commissioners to materially deviate from the present traveled road between the towns of Wicks and Baker Springs by clothing them with power to select .a different or new route altogether,, if more favorable and practicable than the route designated in the act. The intent of the Legislature was to authorize the commissioners to make these material changes without the consent of the county court, as indicated by the fact that provision was made in the same section to obtain the approval of the county court in ease bridges of the first class should be necessary in constructing the improvement. It is true it was not necessary to obtain the ¡consent of the county court to construct a bridge which, constituted a part of the improvement, but this provision, deferring to the wishes of the county court, showed that the Legislature had article 7, § 28, in mind when it enacted the law. Certainly the Legislature would not have deferred to the wishes of the county court in express terms on an immaterial matter and have omitted to do so on a material matter. It would be illogical to say that, by silence, the Legislature intended to defer to the wishes of the county court in important particulars, when in the same section it g’avé expression to this intent in unimportant matters. It is obvious that the intent of the Legislature was to confer uncontrolled authority upon the commissioners to make material changes in the route designated in the act. The Legislature was without authority to do this.

The decree is therefore reversed, with directions to restrain the commissioners from levying and collecting a tax upon the property described in the act to defray preliminary expenses in the district.

DISSENTING OPINION.

McCulloch, C. J.

Where the language of a statute is open to two reasonable interpretations, one of which will render it valid and the other invalid, it is the duty of the court to adopt such interpretation as will render the statute valid. This rule of interpretation has been quite frequently announced by this court. Duke v. State, 56 Ark. 485; Leep v. Railway Company, 58 Ark. 407; Dobson v. State, 69 Ark. 376; Waterman v. Hawkins, 75 Ark. 120; Stillwell v. Jackson, 77 Ark. 250; Sallee v. Dalton, 138 Ark. 549; Booe v. Sims, 139 Ark. 595; Dobbs v. Holland, 140 Ark. 398; Commissioners v. Quapaw Club, 145 Ark. 279; Logan v. State, 150 Ark. 486.

The statute under consideration contains no reference to an approval by the'county court of the route selected for the road, but there is no express authority for the commissioners to select a route other than an established public road, regardless of the approval of the county court. This court has frequently decided that the Legislature cannot authorize commissioners of a road improvement district to make material changes in the route of a road without the consent or approval of the county court, and we should indulge the presumption that, in enacting the statute now under consideration, the lawmakers intended to authorize the commissioners to change the route, subject to the approval of the county court, rather than in defiance of the will of the county court, or without obtaining the consent of the court. In other words, we should presume that the Legislature intended to enact a statute which would conform to the constitutional requirements as declared by this court. I think the point is well illustrated in the case of Sallee v. Dalton, supra. In that case we had under consideration a statute which created a road improvement district, and contained a provision to the effect that, if any part of the road to be improved “has not been laid out as a public road, it is hereby made the duty of the county court of Randolph County to lay the same out. ’ ’ It was contended that this compelled the county court to lay out the public road selected by the commissioners of the district, and we declared that the purpose was to leave the county court in possession of its constitutional powers in determining whether or not the road should be laid out, and that it was an encroachment upon the jurisdiction of the county court, and in reaching this conclusion we announced the principle which I have stated in the beginning, and quoted Judge Cooley in support of the rule, as follows:

“The duty of the court to uphold a statute when the conflict between it and the Constitution is not clear, and the implication which must always exist that no violation has been intended by the Legislature, may require it in some cases, where the meaning of the Constitution is not in doubt, to lean in favor of such a construction of the statute as might not, at first view, seem most obvious and natural. For, as. a conflict between the statute and the Constitution is not to be implied, it would seem to follow, where the meaning of the Constitution is clear, that the court, if possible, must give the statute such a construction as will enable it to have effect.” Cooley’s Constitutional Limitations, 7 ed. 236.

The Legislature, in the instance now under consideration, described a public road, as the one to be improved, but added the provision that the commissioners were “empowered, however, to build said road along- and over the most favorable and practicable route.” It is a reasonable presumption that the lawmakers intended, in the event of a necessary change in order to select the most favorable route, that' the judgment of the county court would be invoked in laying- out the new route. This is not a case where the commissioners have attempted to change the route without the consent of the county court. The point was never reached for a change in the route, for the reason that it was determined that it was impracticable to build the road at all, and it became necessary to levy assessments to pay the preliminary expenses which were properly incurred in selecting a route and in determining whether the cost of the improvement would exceed the benefits.

The majority lay stress on the express provision in thq statute that bridges of the first class should be approved ¡by the county court, and it is argued that this shows that the framers of the statute did not contemplate the approval of the county court in the selection of the route. It seems to me that the majority have drawn the wrong inference from the provision with respect to bridges. There is no provision of the Constitution requiring the approval by the county court of the construction of the bridge through, the agency of the improvement district (Shibley v. Bridge District, 96 Ark. 410), but the framers of the statute now under consideration deemed it wise to place that matter under the direction of the county court, therefore they put in an express provision to that effect, deeming it, we should assume, unnecessary to place a like provision with respect to the selection of the route, as that was required by the Constitution and needed no legislative direction.

My conclusion is therefore that the statute is not in conflict with the 'Constitution, and should be upheld.


author: McCulloch, C. J.

text:
    St. Louis-San Francisco Railway Company v. Kirkpatrick.
    Opinion delivered January 21, 1924.
    1. Appeal and error — former appeal — law of the case.. — The principles announced in the opinion of the court on a former appeal have become the law of the case.
    2. Trial — instruction—singling out circumstance. — In an action for personal injuries received in a collision with a train, after a general instruction on damages, a direction to the jury to consider infection resulting in blood-poison, if it was found that the same was caused or contributed to by the injury received, was not objectionable as on the weight of evidence, nor as singling out a particular circumstance, but was proper in view of the fact that the jury might not understand that they should consider a resulting injury.
    Appeal from Mississippi Circuit Court, Osceola District; W. W. Bandy, Judge;
    affirmed.

      W. F. Fva-ns and W. J. Orr, for appellant; Glaclish $ Taylor and J. W. Rhodes, Jr., of counsel.
    1. Since ilie complaint was in fact amended by the “substituted complaint” at the second trial, and the evidence is in some respects more favorable to appellant’s contention that plaintiff’s own negligence was the direct and proximate cause of his injuries, we ask the court to consider again the proposition that the plaintiff is barred as a matter of law. As supporting this contention, see 135 Mo. 440; 249 Mo. 523; 70 -S. W. 734; 42 N. E. 579; 43 N. Y. 502. Begardless of plaintiff’s negligence, the evidence as to appellant’s negligence is not sufficient to support the verdict. 105 Ark. 299.
    2. After having instructed the jury on every element of damage which the evidence justified, it was manifest error to direct the jury’s attention specially to consideration of the infection resulting in blood-poison. Consti-" tution, art. 7, § 23; 75.Ark. 86; 105 Ark. 467; 57 Ark. 512; 130 Ark. 371. '

      J. T. (Boston, for appellee.
    1. TTneontradieted evidence in the record shows that plaintiff was not guilty of contributory negligence; but if contributory negligence be conceded, still it was a ques- . tion for the jury to decide after comparing his negligence with that of the defendant. 235 S. W. 410; 155 Ark. 560.
    2. If the blood-poisoning, which arose a ,few hours after the injury, was caused by the injury, it was-a proper element of damages to be considered by the jury, as much so as the original injury. 224 U. S. 582; Mo. Pac. R. R. Co. y. Cathey, 160 Ark. 153. Moreover, paragraph 5 of the instruction on the measure of damages dealt only with the original injury, and it was necessary to add the paragraph pertaining tó blood-poison, in order to let the jury know that that was to be considered in arriving at the amount of damages. 13 Cyc. 234. In any case it was not reversible error to single out that fact appearing in the evidence. 216 S. W. 23; 93 Ark. 41.6.
   McCulloch, C. J.

Appellee instituted this action against appellant to recover damages for personal injuries sustained, also for injuries to' appellee’s team of mules and wagon, which resulted from a collision with one of appellant’s trains backing in the yard at Osceola. Negligence of appellant’s servants wras alleged in failing to keep a lookout and failing to exercise ordinary care to prevent injuring appellee and his property, after discovering the peril of the situation.

There was a former appeal in the case from a judgment in favor of appellee, and the judgment was reversed, and the cause remanded for a new trial. 155 Ark. 632. The issues in the case and the testimony introduced in support of them were set forth in detail in the opinion on the former appeal, and it is unnecessary to restate them, as they are substantially the same as in the first trial. This court, on the former appeal, decided that the evidence was sufficient to sustain the verdict, but reversed the judgment on account of error of the trial court in its charge on the subject of contributory negligence. The principles announced in the opinion havp. of course, become the law of the case.

Liability o£ appellant for damage to appellee’s wagon and team is conceded, but it is contended, as on the former appeal, that the evidence is not sufficient to sustain the verdict on the issue of liability for appellee’s injuries, in that it showed beyond dispute that the negligence of appellee himself was the sole and proximate cause of his injury. .We have carefully examined the evidence, and, in comparison with the statements made in the former opinion, we think that there is no substantial difference, and, as we said in the former opinion, we cannot say on the evidence adduced below that appellee was, as a matter of law, guilty of contributory negligence in returning to the danger zone, caused by the approach of the train, to rescue his team from danger. The evidence created an issue which justified its submission to the jury. Appellee’s leg was injured by coming in contact with some portion of the wagon after it was struck by the train, or, rather, after the box-car against which the wagon was backed was struck. The injury appeared at first to be trivial, and appellee resorted to simple remedies to effect a cure and to alleviate the pain, hut a few, days later blood-poisoning developed, and it became necessary to have the services of a physician, who treated appellee for the malady. According to the evidence adduced, appellee was totally incapacitated from work for about four months, suffered considerable pain during the time, and, at the time of the trial, he still had not fully recovered, and continued to suffer pain from the injury. There is also testimony that appellee’s spine was injured.

After giving a general instruction on the measure of damages, against which no objection is made here, the court gave the following instruction at the request of appellee:

“6. In fixing the amount of damages, if any, on account of the injury to plaintiff, you will take into consideration the infection resulting from blood poison, if you find that the same was caused or contributed to by the injury received by the plaintiff.”

Objection was made to the instruction just quoted, and it is insisted now that tlie court erred in giving this instruction, for the reason that it singled out the question of resulting blood poison after the subject had been fully covered iu another general instruction. It is also contended thát the instruction amounts, to one on the weight of the evidence. We do not think that the instruction is open to the objection that it is on the weight of the evidence. If it be conceded that it should be treated as one singling out the particular subject mentioned, the answer to the argument is that, while it is not good practice to give an instruction singling out a particular circumstance in the evidence, a judgment will not be reversed on account of the giving of such an instruction. It can scarcely be said, however, that this instruction is open to the objection that it unnecessarily singles out the particular subject. It is true that the instruction dealt only with the matter of blood-poisoning as resulting from the original injury, but it was proper to instruct the jury on that subject, for the-reason that this element should not have been considered by the jury as an element of damages unless they found that it was caused or resulted from the original injury. But for this instruction, the jury might not have understood whether or not they should1 take into consideration the blood poisoning, which was not a part of the original injury, even though it resulted from tliat injury. At any rate, we find no reversible -error in the giving of this instruction.

It is contended that the verdict awarding compensation for personal injuries was excessive, but no reasons are pointed out why the evidence is not sufficient to sustain the award; on the contrary, we think that the evidence is sufficient.

Judgment affirmed.


text:
    Butler v. Blackshare.
    Opinion delivered January 21, 1924.
    1. Certiorari — delay in application. — Issuance of a writ of certiorari to review proceedings of a public nature, such as establishment or vacation of a public road, rests in the sound discretion of the court, which should not grant relief where there has been an unaccountable delay in applying for it.
    2. Highways — delay in applying for certiorari. — Where a petition for certiorari to review an order vacating part of a public road and establishing a new road on petition of county road- commissioners acting as such, pursuant to Special Acts 1919, p. 569, was not filed for more than two years, the court did not abuse its discretion in quashing- the writ.
    Appeal from Clay Circuit Court, Eastern District; W. W. Bandy, Judge;
    affirmed.

      L. Hunter and Carl L. Hunter, for appellant.
    The procedure to vacate a public road, or -any part thereof, is clearly set out’in § 5247 of C. & M. Digest. The action of the county court in vacating the road was void. 13 Ark. 356; 15 Ark. 43.

      W. E. Spence, for appellee.
    The county court had jurisdiction. 134 Ark. 121; § 5249, C. & M. Digest.
   McCulloch, C. J.

Appellant filed his petition in the circuit court of Clay County to bring up to that court for review an order of the county court, changing the route of a public road 'by vacating a portion of the old route and laying out a new route. Appellant * alleged in his petition that he owned real estate affected by the order vacating the old route of the road, that the order was made without notice, and that he did not know of the pendency of the proceeding in the county court until after the order was made. The writ was granted by the judge of the court, but, on a hearing, the court sustained a demurrer to the petition and quashed the writ.

It appears from the petition that the order of the county court sought to be reviewed was rendered on August 19, 1919, and that the petition for certiorari was filed in the circuit court on October 17, 1921.

It appears also that the order of the county court was made on the petition signed by the county road commissioners, who were acting as such pursuant to a special -statute then applicable to Clay County. Special Acts 1919, p. 569.

It appears from the original petition of the commissioners that they merely recommended1 the establishment of the new route of the road, but that there was appended to the petition another petition, signed by the appellees, asking that the old route be vacated. The court seems to have treated the two petitions as being a single one, and made the order vacating the old route and establishing the new one. The contention of appellant is that the order is void on its face to the extent that it attempted to vacate the old route without there having previously been filed a petition signed by the property owners and notice given of the presentation of the petition.

It appears from the above recital that appellant’s petition for certiorari was not filed for more than two years after an order was entered vacating the old' route of the road and establishing the new route. Under repeated decisions of this court, the issuance of a writ of certiorari to review proceedings of a public nature, such as the establishment or vacation o,f a public road, rests in the sound discretion of the court, and relief should1 not be granted where there has been an unreasonable delay in applying for the relief. Johnson v. West, 89 Ark. 604; Rust v. Kocourek, 130 Ark. 39; Brinkley Township Road Dist. v. Dixon Township Road Dist., 146 Ark. 167.

There is no reason shown in the present case for the delay of more than two years in applying for relief, therefore we are of the opinion that the court did not abuse its discretion in quashing the writ of certiorari and refusing to review the orders of the county court.

Judgment affirmed.


author: Hart, J.,

text:
    Micklish v. Grand Lodge of the Loyal Star.
    Opinion delivered January 21, 1924.
    1. Injunction' — right to relief. — Where, after the executive board of a fraternal mutual benefit association removed plaintiff from the office of secretary-treasurer and another was appointed in her place, the new appointment was revoked and plaintiff was restored to her office, there was no ground for injunctive relief, as it is only where injury has been inflicted or property right invaded that plaintiff is entitled to such relief.
    2. Action — speculative and abstract questions. — Courts do not determine speculative and abstract questions of law or lay down rules for the conduct of individuals in their business and social relations, but are confined to real controversies where the legal rights of the parties are necessarily involved, and can be conclusively determined.
    3. Injunction — complaint.—Where an injunction is the relief sought, the facts entitling plaintiff to such relief must be set out in the complaint and must be established at the hearing.
    Appeal from Craighead Chancery Court, Western District; Archer Wheatley, Chancellor;
    affirmed.
    STATEMENT OE EACTS.
    Appellant brought this suit in equity against appellees to enjoin them from in any way interfering or attempting to interfere with her in the rights of her office as secretary-treasurer of the Grand Lodge of the Loyal Star.
    According to the allegations of the complaint, the Grand Lodge of the Loyal Star is a fraternal mutual benefit association, with its principal office in the city of Horton, Kansas. Mrs. Harriette B. Hyland' is its president, and resides in said city. Mrs. Margaret Lushbaugh, Mrs. Anna Wilson, Mrs. Mary Adams, Mrs. Emma Longeway and Mrs. Alta Stevens compose the grand executive board. Mrs. Margaret Lushbaughis chairman and Mrs. Anna Wilson is secretary of the board. The office of the secretary-treasurer of the grand lodge is at Jonesboro, Ark., and, at the time of the transactions herein complained of, Mrs. Florence E. Micklish, as such secretary-treasurer, had on deposit in the First National Bank, in the city of Jonesboro, funds of the grand lodge to the amount of $20,000 or $25,000. She is officially responsible for said funds, and has given a $20,000 bond for the faithful performance of her duties. On November 13, 1922, the executive board of the grand lodge con1 vened in the city of Jonesboro and made an examination of her books and accounts as such secretary-treasurer, and found them to be correct. Said executive board, without cause, undertook and attempted to remove appellant from' her office as secretary-treasurer of the Grand Lodge of the Loyal Star. The attempted removal was without authority, and appellant was not given an opportunity to be present or heard at the trial.
    Mrs. Harriette B. Hyland, as president, then attempted to appoint the defendant, Mrs. Estella Slatton, as secretary-treasurer of the grand lodge. Written notice that appellant had been removed from office for the misappropriation of the funds of the grand lodge, by issuing two checks for $75 each and one for $50, was given her by the executive board. The date of the removal was stated as November 21, 1922. Appellant took an appeal from the action of the grand executive board, in the manner and form prescribed by the bylaws of the grand lodge. On the following day Mrs. Harriette B. Hyland revoked the appointment of Mrs. Estella Slatton as secretary-treasurer of the grand lodge, and Mrs. Slatton acknowledged the receipt of the revoking order, and the appellant was directed to continue in said office. The appeal taken from the order of the executive board, dismissing appellant, cannot be heard until the next meeting of the grand lodge, which will -be about August, 1925.
    Article 4, § 1, of the constitution of the order prescribes the-duties of the president. Among the duties given her is the power to convene the executive board and to fill vacancies in the offices of the grand lodge, subject to the approval of the grand executive board.
    Section 3 of the same article prescribes' the duties , of the grand secretary-treasurer.

      Section 4 of the same article prescribes the duties and authority of the grand executive board. It provides that the members of the said board- shall examine all accounts and books of grand lodge officers at .the end of each fiscal year. Said board shall promptly investigate all charges against grand lodge officers, and-shall have the power to examine witnesses, and, upon proper and sufficient evidence, to remove said officers.
    The constitution also provides the manner in which charges shall be preferred against an officer of the grand lodge, -and also the manner in which the trial shall be conducted.
    Appellant was first granted a temporary injunction against appellees by the circuit judge. . Estella Slatton was expressly enjoined from discharging the duties of grand secretary-treasurer of the Grand Lodge of the Loyal Star, and Mrs. Harriette B. Hyland and other officers of the executive board of the grand lodge were enjoined from interfering with appellant in the lawful exercise of her duties as grand secretary-treasurer of the Grand Lodge of the Loyal Star until further orders of the chancery court.
    In January,. 1923, appellees filed a motion in the-chancery court to dismiss the complaint of .the appellant for want of equity, and also filed a demurrer to the complaint. The court sustained the demurrer of appellees, and dismissed the complaint of appellant for want of equity.
    The ease is here on appeal.

      II. W. Applegate, for appellant.
    The court erred in sustaining the demurrer and in dismissing the complaint. All parties materially interested in the subject-matter of the litigation should be made parties to the suit. 37 Ark. 511; §§ 1096, 1097, 1098, C. & M. Digest. Where any person or party is wrongfully joined as defendant, -such person or party should be dismissed if the court finds they should not have been made a party defendant, and the action should proceed against all other defendants. 101 Ark. 179. Under the doctrine of virtual representation, it is -within the power of a court of equity to name as defendants in certain classes of cases a few individuals who are, in fact, the representatives of a latge class having' a common interest. 150 Ark. 398; 20 R. C. L. 672; 5 C. J. 1371; Pomeroy’s Code Remedies (4 ed.) §§ 285-291; 28 Ann. Cas. 1913-C. Before an officer can be removed from office for specified cause, there must be notice and hearing given to him. 84 Ark. 540; 141 Ark. 206. Courts of equity will exercise jurisdiction and use their power to protect the incumbent of an office against any illegal or unjust interference therewith. 69 Ark. 606; 84 Ark. 540; 141 Ark. 206; 5 Corpus Juris, p. 1348, § 50 ; 59 N. J. L. 142; 77 Misc. N. Y. S. 1043. Where a member has been elected to office by the association for a definite term, he can be removed only for adequate, cause and after an investigation of the charges against him, of which he has been given proper, notice and has had an opportunity to reply and defend. 4 N. Y. S. 534; 5 Corpus Juris 1348, § 50; 1 A. L. R. 423; Ann. Cas. 1918-E.

      Humphrey & Boxley and E. L. Westbrooke, for appellees.
    There was no error in sustaining the demurrer and dismissing the complaint. In the absence of a statute authorizing it, an unincorporated association cannot be sued in its society or company name. 150 Ark. 401; 3 Ann. Cas. 699; 140 Ark. 124. The courts will not interfere with the internal affairs of -an unincorporated association, so long as the government of the society is fairly and honestly administered in conformity with its laws and the law of the land. 5 C. J. 1364, art. 9, § 101; 7 C. J. 1123, § .84; 100 Atl. 731; 194 S. W. 1179; 241 S. W. 524; Ann. Cas. 1918-E 1178; 25 R. C. L., § 15.
   Hart, J.,

(after stating the facts). The decision of the chancery court was correct. Appellant was the plaintiff in the chancery court. According to the allegation of her complaint, the grand executive board had the power to remove her from the office of grand secretary-treasurer for cause, and the president of the -order had the authority to appoint some one in her place. " The grand executive board first removed her from the office of grand secretary-treasurer, and Mrs. Estella Slatton was appointed in her place. On the very next day the appointment of Mrs. Estella Slatton was revoked, and she never attempted to exercise the duties of grand secretary-treasurer. Appellant was notified of this fact, and was directed to continue in the discharge of the duties of her office. Since that time she has continued in the discharge of her duties, without any interference whatever on the part of appellees. It was not necessary for her, under the circumstances, to have instituted this action to protect her rights.

In Bonham v. Brotherhood of Railroad Trainmen, 146 Ark. 117, it was held that no action to recover damages for the wrongful expulsion of a member from a fraternal benefit society maj^ be maintained until the member first exhausts his remedy by appeal to the highest appellate tribunal of the society, as provided by its by-laws.

It is true that the Loyal Star is a fraternal and mutual benefit order, but, under the'facts alleged, it is not necessary to decide whether appellant might maintain an action in the courts, without first exhausting her remedy by appeal to the highest tribunal of the society, as provided by its constitution and by-laws, or whether the decision of that tribunal would be conclusive of her rights.

It is only when some injury has been inflicted on the person, or some right of property has been invaded by the action of such society, that a member is entitled to maintain a suit in the courts for redress or protection. The courts do not sit for the purpose of determining-speculative and abstract questions of law, or laying down rules for the future conduct of individuals in their business and social relations, but are confined in their judicial action to real controversies, where the legal rights of parties are necessarily involved and can he conclusively determined. Thomas v. Musical Mutual Protective Union, 121 N. Y. 45, and Bigelow v. Hartford Bridge Company, 14 Conn. 565.

It is well settled that, where an injunction is the final relief sought, the facts which would entitle the plaintiff to relief must be set out in the complaint and must be established on the hearing.

In the case at bar there is no invasion of the appellant’s rights. The order removing her from office was immediately 1 rescinded, and she was never interfered' With in any manner in the actual discharge of the duties of her office. Therefore there was no ground' for equitable injunction, and the chancery court properly refused to continue the injunction in force, upon the final hearing of the case. According* to the allegations of her own complaint, the remedy by injunction would not lie in appellant’s favor, as no violation of her property rights has happened or may ever happen, and no injury thereto is threatened in such a sense as justified a preventive remedy.

It follows that the decree must be affirmed.


text:
    Bethel v. State.
    Opinion delivered January 28, 1924.
    1. Criminal law — instruction—harmless error. — Where defendant did not claim that he had married prosecutrix or offered to marry her, giving an instruction in the words of Crawford & Moses’ Dig., § 2415, providing that marriage suspends a prosecution for seduction, held not prejudicial error.
    2. Criminal law — offer of court to suspend sentence. — A statement by the court to the jury, in a prosecution for seduction, that if they convicted defendant, and defendant would at any time marry prosecuting witness, the court would suspend the sentence, held prejudicial error; not being cured by Gen. Acts 1923, p. 40, authorizing trial courts to suspend sentence.
    3. Indictment and information — lawful assembly of grand jury. —Where, on the reassembling of the grand jury at a special term, it was discovered that an indictment against defendant had been lost without having been recorded, and the court referred the matter to the grand jury for a new indictment, when four of the grand jurors failed to report, whereupon the court completed the panel by ordering the sheriff to summon bystanders, and the grand jury so formed returned a new indictment. Held that a motion to quash the indictment on the ground that the grand jury was not legally formed or assembled was without merit.
    4. Indictment and information — finding new indictment.— Where the grand jury, without attempting ,to restore a lost indictment, returned a new indictment under Crawford & Moses’ Dig., § 3037, the new indictment operated as a suspension of the old indictment.
    5. Grand jury — no review of charge to. — There can be no review of alleged errors of the court in its charge to the grand jury, preceding the finding of an indictment.
    6. Jury — examination of jurors as to ku klux klan. — Where an offer was made to prove that, on the night of defendant’s arrest, men disguised as members of the Ku Klux Klan ■ endeavored to interview defendant, it was error to refuse to permit examination of the trial jurors on their voir dire concerning membership in the Ku Klux Klan.
    7. Jury — discretion of court as to examination of jurors. — In passing on the question of good faith of attorneys in examining jurors on their voir dire, the court is vested with a large amount of discretion, and may interrogate them as to their motive.
    8. Witnesses — cross-examination.—On the issue of credibility, it was error to refuse to permit cross-examination of a material witness as to whether he went in disguise to defendant’s home on the night he was arrested and tried to interview defendant.
    9. Seduction — proof of promise of marriagf — evidence.—A promise of marriage in a seduction case cannot be proved by a declaration of the female.
    10. Seduction — as between infants. — Seduction is complete as between infants above the age of puberty when the act of sexual intercourse is induced and consummated by reason of a false promise of marriage.
    11. Seduction — sufficiency of evidence. — Evidence held sufficient to warrant a conviction for seduction.
    12. Seduction- — -defense.—Where, subsequent to an express promise of marriage and while its influence still continued, prosecutrix yielded -to sexual intercourse for the purpose of obtaining the consent of defendant’s mother to the marriage, held that it cannot be said, as a matter of lav/, that the act wa-s not obtained by virtue of a promise of marriage.

      13. Seduction — instruction.—A requested instruction that, if prosecutrix yielded to .sexual intercourse in order to become pregnant and thus pbtain the consent of defendant’s mother to the marriage, there would be no unlawful seduction, held properly refused.
    Appeal from Scott Circuit Court; John E. Tatum, Judge;
    reversed.

      B.ates & Duncan and Evans é Evans, for appellant.

      J. 8. Utley, Attorney General, John L. Garter, Wm. T. Hammock and Darden Moose, Assistants, for appellee.
   McCulloch, C. J.

The defendant, Justin Bethel, was tried below on an indictment charging him with the crime of seduction, alleged to have been committed by having carnal knowledge of Edna Sliger, an unmarried female, by virtue of a false and feigned express promise of marriage.

It appears from the testimony adduced at the trial that defendant and Edna Sliger, the girl alleged to have been seduced, were each about seventeen years of age- — ■ slightly under that age — at the time the alleged promise of marriage and act of sexual intercourse occurred, and that the girl was a few months older than the defendant. It is conceded that 'the two were “keeping company” with each other for a period of several months, covering the time during which the offense was committed; but defendant, in his testimony, denied that he had engaged himself to marry the girl, or that he ever had sexual intercourse with her. On the other hand, the girl testified that defendant proposed to marry her, that she accepted the proposal, and that the first and numerous succeeding acts of intercourse occurred during the pendency of their agreement to marry. In describing the place, time and circumstances of the act of sexual intercourse, the girl said: “He told me we would never get to marry in any other way unless we did, and let him get me pregnant; he said his mother would not agree to it without we were in that trouble. Q. Would you have surrendered your virtue to him under any other circumstances? A. No sir.” It appears from the testimony that at that time defendant’s father was dead, and he was living with his mother. He was a schoolboy, and he and the girl attended the same school; her mother was dead at that time, and she lived with her father.

The State introduced the father of the girl, and other witnesses, to show the ostensible relations between the defendant and the girl, in order to corroborate-her statement as to the promise of marriage and acts of sexual intercourse. The girl testified that she became pregnant as a result of her sexual intercourse with defendant, and that she gave birth to a child prior to the trial of this case. She testified that she and defendant became engaged to be married on July 31, 1922; that the first act of sexual intercourse occurred on August 26, 1922, and vras frequently repeated from then up to some day during the mouth of November; that defendant continued to visit her until January, 1923, when he broke his promise of marriage, offered her money to leave the country, and refrained from associating with her any more.

Defendant denied, as before stated, that he promised to marry the girl, or had sexual intercourse with her. He admitted, however, that he visited her frequently during the summer and autumn of 1922, but that he ceased his visits and association with her on Thanksgiving day of that year, on account of her conduct on that day.

The court, in its charge to the jury, gave the following instruction, over defendant’s objection:

‘ 3. The court further instructs the jury, if any man against whom a prosecution has begun, either before a justice of the peace or by an indictment by a grand jury, for the crime of seduction, shall marry the female alleged to have been seduced, such prosecution shall not then be terminated, but shall be suspended; provided that if, at any time thereafter, the accused shall wilfully, and without such cause as now constitutes a legal cause for divorce, desert and abandon such female, then at such time said prosecution shall be continued and proceed as though no marriage had taken place between such female and the accused.”

The bill of exceptions recites that, “after the instructions of the court and the arguments of counsel, and just immediately before the court instructed the jury as to the form of their verdict, the court stated to the jury that, in view of the arguments of counsel, he deemed it proper to state to the jury that, in the event the jury should convict the defendant, if the defendant would, at any time, marry the prosecuting witness, he would suspend the sentence.”

There was an exception saved to the giving of each of these instructions, and the rulings of the court are assigned as error.

There are numerous other assignments of error to be considered, but, in view of the fact that the Attorney General concedes that a reversal must follow on -account of the court’s last statement to the jury, unless the act of the General Assembly of 1923 (General Acts 1923, p. 40), authorizing trial courts to suspend criminal sentences, cures the error in these instructions, we deem it proper to consider this assignment first, before disposing of the others.

It is unnecessary to discuss the force and 'effect or validity of the recent statute just referred to, for we are of the opinion that it has no bearing upon the question whether or not the court erred in charging- the jury upon the effect of the statute suspending prosecutions in seduction cases, or in telling the jury, just before the final submission of the cause, that the court would suspend judgment, .under the recent statute, if the jury convicted the defendant and he afterwards married the girl. The court set forth the statute (Crawford- & Moses’ Digest, § 2415) in the instruction quoted above, but it had no application in the trial of the present case, for the reason that there was no contention from any quarter that the defendant had married the girl or offered to marry her, and the solo effect of the statute was to suspend tlie prosecution, not to authorize the suspension of sentence. Wo do not think, however, that there was any prejudice in giving instruction No. 3, for it is undisputed that the defendant had not married the girl or offered to marry her. The error in the court’s final charge to the jury, however, arose from the fact that it constituted an inducement to the jury to find the defendant guilty by expressing a promise on the part of the court that, if there was a verdict of guilty returned and the defendant married the girl, he would suspend sentence. The court had Ho right to hold out such a promise to the jury. We have no means of knowing what effect it had upon the jury, but it was calculated to lesson, in tlie eyes of the jury, the ultimate effect of. a ' verdict of guilty, and might have been part, of the inducing cause to bring about the verdict. Bishop v. State, 73 Ark. 568; Pittman v. State, 84 Ark. 292; Bird v. State, 154 Ark. 297. Our conclusion therefore is that the final charge of the court to the jury was erroneous and prejudicial, and that it calls for a reversal of the judgment.

Questions embraced in other assignments of. error, which may arise again, will now be discussed and disposed of for the guidance of the court in the next trial.

The record shows that the indictment against the defendant for this offense was returned by the grand jury at the regular August term, 1922, and that there was an adjournment of the court over to September 19, 1922, on which date this cause was set down for trial. The grand jury had not been discharged, but it had adjourned over to that date, or, rather, subject to the call of the court, and the grand jury was ordered to report to the court on that date. It was discovered on' Ilia! date that the indictment had been lost without having been recorded, and the court, at the request of the prosecuting attorney, referred the matter to the grand jury for a new indictment. Four of the grand jurors failed to report, and the court completed the panel by having the sheriff summon bystanders. There was a reference to the grand jury, and a new indictment returned. Defendant waived arraignment, and pleaded not guilty, and the trial was proceeded with, resulting, as before stated, in .a verdict of guilty being rendered. Without attempting to restore the lost indictment, the grand jury could return another indictment, which, under the statute (Crawford & Moses’ Digest, § 3037), operated as a suspension of the old indictment. There was a motion to quash the indictment on the ground that the grand jury was not legally formed or assembled at the time the indictment was returned, but this is fully answered by the foregoing recitals as to what was done. Another ground for quashing the indictment was that the court failed to fully charge the grand jury in resubmitting the matter to the jury, and failed to gjive correct" instructions. There can be no review of alleged errors of the court in its charge to a grand jury preceding the finding of an indictment. The indictment is only an accusation, and if it be returned by a legally constituted grand jury, for obvious reasons there can be no review of errors of the court in its charge. We are therefore of the opinion that there is no merit in these assignments of error.

In the examination of trial jurors on their voir dire, counsel for defendant proposed to inquire of each juror whether or not he was a member of the organization known as the Ku Klux Klan, but, objection being made by the prosecuting attorney, the court refused to permit the question to be asked. Counsel then proposed to ask each juror, as he was presented for examination, the same question, but the court refused to permit it to be n done. The following colloquy took place between defendant’s counsel and the court: “Mr. Evans: I propose • to ask each and very one of the jurors the question, and the purpose of the question is to determine, to enable us to determine, what peremptory challenges we will make in this case. It is not cause for challenge itself to be a member of the Klan, but we desire to ask the question for the purpose of enabling us to determine, with that information, whether or not we will exercise peremptory challenges, and we are entitled to that information in order to determine whether we will challenge a juror or not. I will state this to the court, that it will be proved in this case that on the night, I am informed and believed, that the defendant was arrested in the justice of the peace’s court, certain persons came to the defendant’s mother’s house, where he was, disguised as members of the Ku Klux Klan, and wanted to interview him with reference to this matter, and in that way it brings that question into issue here; and as a matter of precaution, and acting in the utmost good faith, we insist that we are entitled to have that information from each of the jurors called for the purpose stated.” The Court: “It is the court’s view that a man belonging to the-Kir Klux Klan would be no more subject to be challenged than if he bélonged to the Masons, the Odd Fellows, or a member of any other -order, or a member of Baptist Church, or Methodist or Presbyterian Church; such membership does not disqualify a man as a juror, and the court holds that in this case it is improper and irrelevant to ask the jurors whether or not they are members of the Ku Klux Klan, and the court will not allow counsel to ask that question. ’ ’

Exceptions were duly saved to this ruling of the court. Counsel for defendant then asked permission to propound the further inquiry to the jurors whether or not they were members of any organization “which is bound, either directly or indirectly, to prosecute or punish any person for alleged crimes against women.” The court permitted this question to be asked.

During the progress of the trial defendant offered to prove that, on the night after he was arrested, a small group of masked men went to the home of defendant’s mother, where he resided, and wanted to call him out, but that defendant’s mother declined to permit him to go out to see the men. Defendant’s mother said that she saw one man in the group, and that he was dressed in a brown coat, or raincoat, and had a black mask over Ms face. Defendant attempted to impeach one of the State’s witnesses by asking Mm whether or not he was a member of the Ku Klux Klan and was the leader of the group of men who went, masked, to the home of defendant the night he was arrested, and called him out. The court refused to admit this testimony, and also excluded testimony offered by defendant to show that Edna Sliger had endeavored to get several persons to secure the interest and intervention of the Ku Klux Klan, and that her father, W. IT. Sliger, proposed to one of the witnesses that they get the Ku Klux Klan at Bates, where all the parties lived, to “handle the case,” and that Sliger had said that he would get the Klan at ITeavener, Oklahoma, to handle the case, as the Klan at Bates did not “have the guts to do it.” Sliger himself denied, on the witness stand, that he had made this statement, and the court refused to permit the introduction of testimony of othfer witnesses to prove that lie made the statement accredited to Mm by the witness. .

In the case of Clark v. State, 154 Ark. 592, we decided that “mere membership in committees, or in societies, or other organizations for the suppression of crime, or the achievement of any other particular purpose, does not operate as a disqualification of a juror, unless it is shown that the particular individual has actual bias, or is directly connected with'the matter under investigation in a way from which bias or prejudice will be implied,” but that an accused has the right, for the purpose of determining the extent to which he will avail himself ,of the statutory peremptory challenges; to inquire as to the membership of the proposed jurors in an organization “where it is shown that there are reasons why membership in an organization might influence the parties to the litigation in the exercise of peremptory challenges,” and that “the court ought to permit the inquiry to bo made, if it appears to be made in good faith.”

In the more recent case of Snyder v. State, 160 Ark. 93, we recognized the same rule, but 'held that where nothing more was shown than that the trial judge, the prosecuting attorney, the sheriff, deputy sheriff and employed counsel were members of the Ku Klux Klan, an organization of which the accused could not he a member, because of the fact that she was a woman, is not sufficient reason for being permitted to interrogate jurors concerning their membership in said organization. iWe did not decide in either of those cases that it was necessary for the accused or his attorney to prove the grounds for interrogating the witnesses, but that, on the contrary, if the questions were asked in g’ood faith, and were not merely capricious or impertinent, the court should permit the inquiry to be made, in order for the accused to intelligently and satisfactorily exercise his right of peremptory challenge. In the Clark case, supra, we said:

“If tliere were merely involved an inquiry by the • ■accused as to membership in a particular organization, this alone would not shoiv that the inquiry was material. or that prejudice resulted, but, in the present case, appellant’s counsel informed the court of the fact that there were certain possible antagonisms between the membership of the organization to which appellant belonged and the one to which the proposed jurors belonged, and he was entitled to ascertain the fact whether or not the jurors were members of the other organization, so that he could determine in what instances he would exercise his rights of peremptory challenge.”

In the Snyder case we said that, in order to be entitled to ask such a question, “it should be made to appear that the organization to which the officers and jurors belong, or that the members thereof, were antagonistic to an accused or some organization to which he belongs,” but that does not mean that the accused or his attorney must make actual proof before he can be permitted to ask the question. It is, in other words, a question of good faith, and the court necessarily must exercise a large amount, of discretion in passing on this question. If the. court doubts the good faith or accuracy of the information of the accused or his counsel in propounding the questions to jurors, the court may inquire further into his motives by interrogating the attorney on the subject, but it is not essential that, as grounds for making the inquiry as to membership of jurors in organizations, proof be first adduced establishing the connection between the proposed juror and the organization, or to introduce proof that there is actual antagonism between the defendant and the organization inquired ' about. The same question may arise in the lower court in a different form or aspect, and it is unnecessary to determine now whether or not the court would have abused its discretion in holding that the inquiry was not made in good’ faith, for the court did not pass on that question, but held that'the inquiry was not permissible at all. It is true that the court permitted the counsel to ask jurors about membership in any organization for the purpose of punishing crime against women, but this did not reach to the point that defendant sought to bring out from the jurors, that they were members of a particular organization, the Ku Klux Klan, which, counsel informed the court, was talcing an interest in this particular prosecution. The inquiry which the court permitted the counsel to make did not in anywise accomplish the same purpose sought in asking about the membership in the particular organization named.

The court erred in refusing to permit the defendant to interrogate witness Raymond Cook, on cross-examination, as to whether or not he was one of the three or four men who. went in disguise to defendant’s home on the night that he was arrested and tried to take him out and have a talk with him; the court refused to permit the inquiry to be made. Counsel for defendant stated to the court, at the time, that this testimony was sought to be drawn out on' cross-examination to show the bias of the witness, but the court refused to permit the testimony to go in. We think this testimony was admissible, and that the court erred in its ruling excluding it. Cook was a material witness, for he testified to circumstances which tended to corroborate Edna Sliger as to her relations with the defendant. .This was the only means of corroborating the witness, and when the State availed itself of the opportunity of proving these relations by witness Cook, it was important to the defendant to discredit him by showing that he was taking an active interest in the prosecution, even to the extent of going to the home of defendant, disguised, with other men, for the purpose of calling him out and talking with him. The ultimate purpose of the disguised men in going there, if indeed they did go there, as declared by the witness, is not shown, but, if it occurred, it was an unusual incident, and constituted unjustified conduct on the part of the men, and if the -witness, Cook, joined in such an enterprise, the defendant was entitled to have the jury consider it in testing his credibility as a witness.

W. H. Sliger, the father of Edna, was introduced as a witness for the purpose of corroborating her testimony as to the promise of marriage. He did not testify to any act or declaration of defendant which tended to show a promise of marriage or sexual intercourse, except the intimate relations between the boy and the girl, covering a period of two or three months, almost to the exclusion of other visitors, and the witness was permitted to testify, over objection of defendant, that his daughter told him some time in November, 1922, that she and defendant were engaged to be married. Counsel for defendant specifically objected to the testimony, on the ground that it was hearsay, but the court held that statements of parties to a marriage contract might be proved as an exception to the general rule against hearsay testimony or self-serving declarations. In this ruling the court was clearly in error, for a promise of marriage cannot be proved by the declaration of the injured party. The ruling is in direct conflict with the decision of this court in Carrens v. State, 77 Ark. 10, and Woodard v. State, 143 Ark. 404. In the Carrens case we held that the injured female could not .be corroborated merely by her own letters to the accused, and iu the Woodard case, supra, we held that neither acts nor declarations of the injured female, in, the absence of the defendant, were competent testimony for the purpose of corroborating her as to the promise of marriage.

It is next contended that, as the proof in the case showed that defendant was under seventeen years of age, and legally incapable of entering into the marriage relation without the consent of his parents, the defendant would not be guilty of having sexual intercourse with the girl under a false promise of marriage, unless she urns ignorant of the fact that he. was under age. The defendant asked instructions to that effect, which the ■court refused to give, and, on the contrary, told the jury that the fact that the defendant was under age would be no' defense to the charge. In the case of Polk v. State, 40 Ark. 482, this court decided that the fact that the person accused of seduction was below the age at which he could marry, without the consent of his parents or guardian, ■ did not constitute a defense to the charge. The court said: “The offense consists in having illicit connection with an unmarried female, who yields to the solicitations of her seducer under the inducement of a promise of marriage. And it may be committed by an infant upon an infant, provided they have reached the age of puberty.” The court did not, in that ease, mention any exception to the rule as to knowledge or information .on the part of the girl that the accused was under age at the time of the commission of the act. On the contrary, the rule was laid down unqualifiedly that the offense is ■ complete as between infants above the age of puberty, where the act of sexual intercourse is induced and consummated by reason of a false promise of marriage.

Finally, it is insisted that the verdict is contrary to the uncontradicted evidence, in that it is shown by" the testimony of the girl herself that the sexual intercourse was not induced by an unconditional promise of marriage. Counsel insist that, when the girl testified that the sole reason why she yielded her virtue to the defendant was his statement that it was necessary for him to have intercourse with her and that she become pregnant as a result, so that his mother would agree for them to marry, this showed that there was no inducement by an unqualified promise of marriage. We cannot agree with counsel in this. The girl testified that there was an express promise of marriage, on a certain day prior to the first act. of sexual intercourse, and that the relations established by the agreement to marry extended beyond the first act of sexual intercourse and the frequent acts of intercourse which occurred thereafter. The fact that she finally yielded to the embraces of the defendant solely upon his assurance that it was necessary that she should become pregnant in order to secure the consent of his mother to the marriage did not lessen the unconditional quality of the marriage agreement to which she had testified. It is true that the jury might have found that there was no promise of marriage, or that, if there was a promise of marriage, it was made conditional upon the consent of defendant’s mother, and that the sexual intercourse was induced merely as a means of obtaining the consent of defendant’s mother. But it cannot be said, as a matter of law, that because, subsequent to the express promise of marriage, and while its influence still continued, the girl yielded to the embraces of her lover for the purpose of obtaining the consent of his mother, the act of intercourse was not obtained by virtue of the promise of marriage. The two things are not at all inconsistent, for the girl, may have yielded her virtue because of the promise of marriage and also in order to create conditions which would permit the consummation of the marriage. The case does not therefore fall within ' the rule announced by this court in decisions cited by counsel to the effect that, when sexual intercourse is obtained by virtue of a conditional promise of marriage if pregnancy resulted, it did not come within the statute. Taylor v. State, 113 Ark. 520; Davie v. Padgett, 117 Ark. 544; Oaks v. State, 135 Ark. 221; Woodard v. State, 140 Ark. 258. The instructions asked by the defendant, which would have told the jury that, if the girl yielded in order to become pregnant and thus obtain the consent of defendant’s mother to the marriage, it would not constitute unlawful seduction, were erroneous, and were properly refused.

There was, we think, sufficient evidence 'to warrant the submission of the case to the jury, both as to unconditional promise of marriage and .the acts of sexual intercourse which were induced by such promise. The girl testified positively as to those facts, and she was corroborated by proof as to the relations which apparently existed between the parties, as observed by the girl’s father and other witnesses, and also there was some corroboration in the statement of defendant to another girl, as testified to by her, after the birth of the child. All of the circumstances made a case for the jury, we think, and the court was correct in refusing to take it away from the jury on a peremptory instruction.

For the errors hereinbefore indicated, however, the judgment is reversed, and the cause remanded for a new trial.


text:
    Coleman v. McKee.
    Opinion delivered January 28, 1924.
    Licenses — authority op dealer to sell stock op common-law trust. —Under Crawford & Moses’ Dig., § 750 et seq. and Acts 1923, p. 694, requiring licenses for the sale of stock of an “investment company” by a “dealer,” the Bank Commissioner improperly refused a dealer’s license to sell stock in a common-law trust, under the ground that the laws of the State did not authorize such an association.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    reversed.

      Horace Chamberlin, for appellant.
    The instrument under consideration here created a trust, and its existence as a legal entity is not prohibited by the laws of the State. Appellant’s application for a dealer’s license was made in conformity with, the statute, C. & M. Digest, §§ 750-771. Section 751, Id., specifically recognizes the existence of a trust, and names the person acting therefor as an investment company, if he shall himself, or through others, desire to sell, in this State, stocks issued by him. Appellee and his successor in office should be required to hear appellant upon the merits of his application.

      Gordon é Combs, for appellee.
    A company operating under a declaration of trust has no legal existence in this State, is not a legal entity, and cannot issue anything of value. 113 Pac. 447; 19 Id. 268; Ann. Cas. 1.912-B, 1344; 99 Pac. 109; 181 N. W. 102, 12 A. L. R. 1060; 20 R. C. L. 882; Id. 912; 1 Purdy’s Beach on Corporations, 162; 3 Id. 1.397; 20 R. C. L. 1061; 10 Wall. 566, 19 L. ed. 1029; 20 R. C. L. 808; 203 Mass. 311; 133 A. S. R. 296; 60 N. H. 294; 49 Am. Rep. 313.
   McCulloch, C. J.

Appellant filed his application with the Bank Commissioner of this State on September 29, 1922, for the issuance to him of a dealer’s license to sell shares of stock in an association of trustees doing business at Wichita Phils, Texas, under the name of Wichita Royalty Company. Appellant set forth in his application the trust agreement or declaration under which the association known as the Wichita Royalty Company was operating, and also stated that he was the owner of fifty thousand shares of the stock of said association, of the par value of one dollar per share, and desired to sell the same, and asked for a license from the Bank Commissioner to permit him to sell stock in this State.

A copy of the trust agreement, exhibited with appellant’s application to the Bank Commissioner, and with the complaint in this action, shows that the agreement was a common-law trust, whereby the trustees undertook to operate the business specified in the agreement and pay dividends out of earned profits in proportion to the shares of stock issued to purchasers, and that the holders of stock should not incur any liability for the indebtedness of the association. The Bank Commissioner refused to issue a license to appellant, on the ground that “the laws of the State of Arkansas do not authorize the legal existence of an association under a common-law. agreement or declaration of trust, and for this reason the application is hereby denied without consideration pf the merits of the securities sought to be -sold, ” whereupon appellant instituted this action in the chancery court, as provided by the statute. Crawford & Moses’ Digest, § 769.

The statute known as the “Blue-sky Law,” under which this application to the Bank Commissioner was made, defines the term “investment company” and the term “dealer,” and requires a license for the sale of stocks falling within that definition, and also provides a method of the issuance of license by.the Bank Commissioner. Crawford & Moses’ Digest, § 750 et seq., and Acts of 1923, p. 694. . The powers and duties under this statute were transferred from the Bank Commissioner to the Railroad Commission. The section of the statute defining‘“investment companies” reads as follows:

“Section 751. Every person, corporation, copartnership, company, or association (except those exempt under the provisions of this act), organized, or which shall hereafter be organized, in this State, whether incorporated or unincorporated, which shall either himself, themselves dr itself, or by or through others, sell or negotiate for the sale of any contract, stock, bonds or other securities issued by him, them, or it, within the State of Arkansas, shall be known, for the purposes of this act, as a domestic investment company. Every such person, corporation, copartnership or association a resident of or organized in any other State, Territory or Government, shall be.known, for the purposes'of this act, as a foreign investment company. Crawford & Moses ’ Digest.

The section defining “dealer” is as follows:

“Section 758. Any person, firm, copartnership, corporation or association, whether domestic or foreign, not the issuer, who shall, in this State, sell or offer for sale any of the stocks, bonds or other securities issued by any foreign or domestic investment company, except the securities specifically exempted in this act, or who shall, by advertisement or otherwise, profess or engage in the business of selling or offering for sale such securities, shall be deemed to be a ‘dealer’ in such securities within the meaning of this act, and no dealer within the meaning of this act shall sell or offer for sale any such securities, or profess the business of selling or offering for sale such securities, unless and until he shall have filed a list of the same in the office of the Bank Commissioner, as in this act, provided. The term ‘dealer’ shall not include an owner, nor issuer, of such securities^ so owned by him, -when such sale is not made in the course of continued and successive transactions- of a similar nature, nor one who, in a trust capacity created by law, lawfully sells any securities embraced within such trust.” Id.

The reason stated by the Bank Commissioner in refusing to grant a license to appellant is in direct conflict with the decision of this court in the recent case of Betts v. Hackathorn, 159 Ark. 621. We held that the trustees under a common-law trust -may do business in this State under general statutes other than those regulating limited partnerships and corporations. Appellant’s application was, however, presented to the Bank Commissioner and denied before our decision on this subject.

The section of the statute defining “investment companies” seems to embrace individuals and ordinary copartnerships as well as corporations and limited partnerships, but we need not undertake to decide now the extent of this statutory definition, for the reason that the securities sought to be sold by appellant in his application to the Bank Oommmissioner fell within our decision in the case cited above.

We are of the opinion that the chancery court erred in refusing* to grant relief against the wrongful refusal of the Commissioner to issue the license. This decision, however, does not reach to the question of the merits of the case in determining the value and bona fides of the securities offered by appellant, which can be inquired into by the Railroad Commission on renewal of the application.

The decree of the court is therefore reversed, and the cause remanded with directions to enter a decree in favor of appellant, declaring* his right to receive license upon proving to the Railroad Commission the value and bona fides of his securities, in accordance with the statute. It is so ordered.


author: Humphreys, J.

text:
    Williams v. Jones.
    Opinion delivered January 28, 1924.
    1. Mortgages — foreclosure sale — validity.—On a motion to set aside a mortgage foreclosure sale for one-fifth less than it was reasonably valued at, held that the sale did not amount to a fraud upon the mortgagor’s rights.
    2. Mortgages — immediate confirmation harmless when— The fact that a mortgage sale was immediately reported to, and confirmed by, the court did not injure the appellants where the court heard their motion to set aside the confirmation and sale as if there had been no confirmation.
    • Appeal from Lawrence Chancery Court, Eastern District; Lyman F. Reeder, Chancellor;
    affirmed.

      Schoonover & Jackson and Block & Kirsch, for appellant.
    We think there was an abuse of discretion in refusing to set aside the confirmation of the sale to Jones. While-the inadequacy of the consideration, standing* alone, might not have been sufficient to justify the‘court in .setting-aside the sale after he had once confirmed it, yet the other circumstances attending* the sale cast upon it that -suspicion which ought to have moved the court to set it aside on appellant’s application. 131 Ark. 397; 117 TI. S. 180.

      W. P. Smith, for appellee.
    The record shows that the chancellor was justified in his decision by the evidence. We submit the case upon the authorities cited by the appellant.
   Humphreys, J.

This is an appeal from an order refusing to set aside a confirmation of a sale of certain land which was sold on the 19th day of September, 1922, to Charles Jones, at public sale under a mortgage foreclosure, wherein Fairbelle Byrkett was petitioner and Williams et al. were respondents. The lands in question were sold on May 31, 1921, in the same foreclosure proceeding at which sale Charles Jones purchased them. Later, however, this sale was set aside at the instance of F. E. Williams on the ground of inadequacy of price, and no appeal was taken by Jones from said order. After the sale was set aside Judge W. A. Cunningham loaned F. E. Williams enough money to pay the indebtedness due Fairbelle Byrkett, and, as security, took an assignment of the judgment and decree. Upon failure of F. E. Williams to pay Judge Cunningham the amount advanced, the land was again advertised and sold by the commissioner. At the sale D. O. Williams, brother of F. E. Williams, made the highest bid, same being $1,350, subject to a prior lien or mortgage thereon in favor of Clay Sloan for about $2,600. D. O. Williams was given thirty minutes by the commissioner to make a good and sufficient note to cover his bid. The testimony is conflicting as to whether he returned within the time allowed him. At any rate, during his absence the commissioner again offered the lands at public sale to the highest bidder. Charles Jones was the highest bidder, and became the purchaser for $1,025. He bid against D. O. Williams at the sale made earlier in the afternoon, offering $1,325 therefor. The second sale was immediately reported to the court and confirmed, after which a deed for the lands was executed by the commissioner and delivered to Jones. On October 26 thereafter D. O. Williams and F. E. Williams filed a written motion to set aside the sale and confirmation thereof, upon the ground that the action of the commissioner in making- the second sale amounted to a fraud upon their rights. A response was filed to the motion by appellee, and the issue joined was submitted to the court upon testimony introduced by , the respective parties, which resulted in a denial of the motion.

The witnesses introduced agreed that the commissioner gave D. O. Williams thirty minutes after the first sale to make a note and bond for the amount of his bid, with good and sufficient sureties thereon, and that he and his brother, F. E. Williams, returned in company with W. R. Lane, vice-president of the Planters’ National Bank, after the lands had been sold the second time. D. O. Williams and F. E. Williams testified that Mr. Lane came down with them to take care of the note, and did not sign it because Judge Cunningham told him it was too late, as the land had been sold again five minutes before their arrival. Judge Cunningham testified that W. R. Lane spoke to him about the matter, and that he told him the facts about the sale of the property, whereupon Lane remarked that he would have nothing to do with it.

D. O. and F. E. Williams testified, in substance, that they returned within thirty minutes after the sale, with the note unsigned, but that they had made arrangements with Mrs. Fairbelle Mitchell (formerfy Byrkett) to sign the note that evening, but found the property had been sold; that they obtained the signature of Mrs. Mitchell and her husband to the note the next day, but did not present it to the commissioner because he had again sold the proper^; that he and his brother signed the note the afternoon the sale was made. D. O. Williams testified that he purchased the land for himself, but his brother contradicted this statement, saying that he had bought it for him. W. A. Cunningham and Charles Jones testified, in substance, that D. O. and F. E. Williams did not return until about three o’clock; that the first sale occurred about 1:30 or 2 o’clock p. m.; that the 'Commissioner waited until five minutes before 3 o’clock, at which time W. A. Cunningham requested him to sell the property again, so that the sale would be between the hours for judicial sales of land; that Jones bid the property in at the second sale for $1,025, which was reported to and confirmed by the court at once; that D. O. Williams did not return within the time required and cover his bid with a note properly secured, and did not offer such a note to the commissioner at all.

The note executed by the commissioner and signed by D. O. and F. E. Williams and the Mitchells was introduced in evidence. The solvency of the Mitchells was not shown, but the solvency of Lane was admitted.

The testimony showed that the property was worth about $5,000, and that Clay Sloan had a prior lien or mortgage thereon for about $2,500.

At the first sale in May, 1921, Charles Jones bid $2,000 for the property, subject to the first mortgage, which amounted at that time to about $2,000. Sloan, after that time, paid some taxes on the land, which increased his lien, including' interest, to about $2,500, in September, 1922. Between the sales in May, 1921, and September, 1922, a barn, worth about $500, situated on the place, had been burned.

After a careful reading of the testimony we are unable to say the chancellor abused his discretion in refusing to set the sale aside. The first sale had been set aside in order to give F. E. Williams an opportunity, to redeem the land. We think F. E. Williams was the real purchaser at the second sale. He went to the sale for the purpose of buying in the land. He should have been prepared to make a good note for the purchase money. He was not, but was given thirty minutes in which to do so after the sale. The chancellor found that he did not return with a good and sufficient note within the time accorded him. We think the finding of the chancellor in this respect is supported by the weight of the evidence. It is admitted that the note was not signed by any one on that day except the Williams brothers. It was not signed until the next day by the Mitchells. It is not shown that the Mitchells were solvent. Lane never signed the note. It is a disputed question as to whether he intended to do so. He was not placed upon the witness stand by appellants. Cunningham testified that he did nothing’ to keep him from signing the note; that he simply stated the facts to him, after which he remarked that he did not intend to sign the note. The fact that the sale was immediately reported to and confirmed by the court in no way injured appellants, as the court heard their motion to set aside the confirmation and sale just as if there had been no confirmation of the sale. The inadequacy of the price bid is not gross. According to the testimony the property was not worth over $5,000, and, including the prior lien, it sold for nearly $4,000. It cannot be said that it sold for a price so inadequate as to shock one’s conscience or to amount to a fraud. The Williams were not diligent, and we cannot say the circumstances surrounding the sale, taken in connection with the price for which the property sold, amounted to a fraud upon their rights.

No error appearing, the judgment is affirmed.