author: Kirby, J.

text:
    Walker v. Wilmans.
    Opinion delivered February 13, 1928.
    1. Wills — construction op devise. — Under a will devising land to daughters for life, share and share alike, with remainder to grandchildren, and providing for devise of certain interests to the grandchildren for life of the surviving daughter, in case one daughter dies first, the intention of the testatrix was to give ■the surviving grandchildren a remainder in fee on the death of both life tenants, and the estate did not vest in fee so long as either life tenant survived.
    2. Wills — rights op purchaser op remainder interest. — Where a will devised a life estate to two daughters and remainder to grandchildren, no interest vested in the grandchildren until the death of both life tenants, and hence a purchaser of the interest of the grandchildren on the death of one life tenant was not entitled to any interest in a fund from the sale of a part of the lands of the estate.
    Appeal from Jackson Chancery 'Court; A. 8. Irby, Chancellor;
    reversed.

      R. E. Jeffrey, for appellant.

      Ira J. Mack, for appellee.
   Kirby, J.

This appeal involves the construction .of a will which disposes of quite a lot of property, paragraph eleven of which reads as follows :

“I devise and bequeath to my daughters, Lizzie Taggart and Lottie D. Walker, all the lands devised to me by my nephew, James B. Waddill, for and during the term of their natural life, share and share alike, to hold the same unto themselves during the term of their natural life. But if my daughter Lottie D. Walker shall die before my daughter Lizzie Taggart, then I devise and bequeath to my granddaug’hter, Josephine Walker, a fifth interest in said lands for and during the natural life of my daughter Lizzie Taggart, and the remainder of said lands I devise and bequeath to my daughter Lizzie Taggart for and during the term of her natural life. And in case my daughter Lizzie Taggart dies before my daughter Lottie D. Walker, I devise and bequeath to my grandchildren, the children of Lizzie Taggart, a one-half interest in said lands for and during the term of the natural life of my daughter Lottie D. Walker, share and share alike. And I devise the remainder in fee in said lands to my then living grandchildren, the children of the bodies of each of my daughters Lizzie Taggart and Lottie D. Walker begotten, share and share alike.”

Lizzie Taggart died in December, 1910, leaving surviving four children of her body, grandchildren of the testatrix, Laura J. Dills, Malcolm D., Samuel W., James B. and Margaret Taggart, and also Lottie Walker, the other life tenant devisee in the will, and her one child, Josephine Walker, since married, and one of the appellants, Josephine Walker Connell.

J. C. Wilmans, appellee, acquired the interest, vested and contingent, of three of the Taggart heirs, Malcolm D., Samuel W. and James B., and Margaret Taggart conveyed her interest, on the 7th of September, 1921, to Lottie D. Walker.

In May, 1923, the Newport Levee District appropriated some of the lands, and paid into the Jackson Chancery Court for the owners of the fee of the lands $925.25, and appellee hr ought this suit for distribution of said fund on the basis of his claim of a 3/5 interest in fee in the lands and being* entitled to a 3/8' interest in the income thereof. Appellant denied that the appellee was entitled to any interest in fee in the lands before the death of the surviving life tenant, and, from the decree holding otherwise, has appealed.

It was the intention of the testatrix, clearly expressed, to give her grandchildren then living, the children of her daughters, the two life tenants, the remainder, in the lands in fee, share and share alike, upon the death of both life tenants, and such estate did not vest in fee so long as either life tenant survived. Neither could it be sooner determined under the will what inter-. est each grandchild would be entitled to in the remainder in fee which is devised to the then living grandchildren upon the termination of the life estates.

The decree is reversed accordingly, and the cause dismissed.


source: Caselaw Access Project

author: Mehaffy, J. Mehaffy, J.

license: Public Domain

text:
    Desha v. Independence County Bridge District No. 1.
    Opinion delivered February 13, 1928.
    1. Venue — denial of change discretionary when. — Denial of a motion for change of venue in a suit to condemn a bridge site was not an abuse of discretion, though two-thirds of the county were interested.
    2. Venue — discretion of court to grant change of venue. — -The grant or denial of a change of venue, under Crawford & Moses’ Dig., §§ 10339, 10341, rests in the discretion of the trial court.
    3. Eminent domain — fair market value of land. — In determining the value of lands appropriated for public uses, the same considerations are to be regarded as in sales between private persons, the inquiry being in such cases what, from their availability for valuable uses, are they worth in the market?
    4. Evidence — value of land condemned for bridge site. — Where land at or near a ferry site was .being condemned for a bridge site, testimony as to the worth of the land in view of its suitability for a bridge or ferry site, held admissible.

      5. Evidence — opinions of witnesses as to value op land. — An improvement district condemning land near a ferry for bridge purposes may cross-examine the landowner’s witnesses as to the elements considered by them, in forming their opinion as to the value of the land, and all other circumstances that affect their credibility or tend to show their knowledge as to such value.
    6. Eminent domain' — value of land — competency of evidence.— Any testimony tending to show the market value of land sought to be condemned is competent to show its value.
    7. Eminent domain — market value — income from ferry. — Testimony as to the revenue or income from a ferry held incompetent in a suit to condemn land near the ferry site for bridge purposes.
    8. 'Evidence — judicial notice. — It is a matter of common knowledge that the existence of a free bridge near a ferry site will destroy the value of land for the purpose of a ferry site.
    Appeal from Independence 'Circuit Court; S. H. Maim, Special Judge;
    reversed.

      Cole '& Poindexter, Culbert L. Pearce, Charles W. . Mehajfy and John E. Miller, for appellant.

      Ernest Neill and 8. M. Casey, for appellee.
   Mehaffy, J.

The appellee, plaintiff below, brought suit in the Independence Circuit Court, alleging’ that it was an improvement district created by act of the General Assembly for the purpose of constructing and maintaining a bridge across White River, at or near the present location of the ferry owned by the appellant, who was the defendant below. It alleged that it had a right to acquire all necessary land for the purpose of building approaches and embankments, as well as such land as may be necessary to connect the bridge with the public highway. That, in carrying out the purposes of its creation, it was necessary that it acquire title to certain lands belonging’ to the appellant. It then described the land desired, and asked the court to fix the damages that might be sustained by. appellant, and.' to condemn said land.

An order was made by the judge in vacation, ordering appellees to deposit $3,000 with the Union Bank & Trust Company of Batesville, and this sum was deposited.

The appellant filed answer, admitting the creation of the district and admitting that they had been unable to agree upon the amount of damages. He alleged that he was the owner of the land on both sides of the river where appellant proposed to build the bridge; that he and those under whom he held title had owned the land for more than 100 years; that he was the owner of a licensed public ferry known as Ramsey’s Ferry, located within a few feet of the proposed bridge site, which had been so located, owned, used and operated by him and his grantors and their ancestors continuously for more than one hundred years; that they have continuously paid all taxes on said land and license on said ferry as required by law during the entire time of their ownérship. That he owned all the land fronting on the bank of the river in fee simple, at the south landing of said ferry, for more than a mile up and down stream and extending back for more than one mile, and also owned the land fronting on the bank of the river at the north end of said ferry for more than one-fourth mile up and down stream and extending far enough back to embrace about seventy acres. That, in order to obtain- a ferry license, the licensee must be the -owner or lessee of the lands on both banks of the stream. That taking the land as proposed by plaintiff would wholly destroy the approaches to said ferry, render it useless, and thereby destroy the defendant’s franchise to operate the same. That the right and privilege to operate a ferry, and the ability and opportunity to operate the same, are wholly dependent upon ownership and possession of the lands on the banks of the stream where the same is to be operated, and, for this reason, the right to establish, operate and run a ferry is a valuable right belonging and appertaining to the land, and makes the land more valuable. That the ferry right and privilege in controversy in this case is especially and peculiarly valuable by reason of the fact that the ferry is established and located on a State highway between important cities, and enjoys a large tourist patronage from both directions, and the value of defendant’s lands is enhanced and increased by the net income derived from the ferry and by reason of its availability for such rights and uses. That the right and nse comes to the defendant by reason of his ownership of the land, and yields him a net income of $4,500 a year; and, by taking said land of the defendant for use and construction of a free bridge at the approaches of the ferry, the plaiñtiff destroys the ferry and deprives the defendant of a net income of at least $4,500 a year in perpetuity. That the lands proposed to be taken are advantageously located, peculiarly suited and highly valuable as a ferry site. That, on account of the nature and character of the lands, its location and peculiar fitness as a ferry site, and other elements contributing to and making up its true value, if condemned and taken for a free bridge site, as sought by the plaintiff, the defendant will be damaged not less than $60,000. líe asked that he be awarded the sum of $60,000 as damages.

The appellee filed an amendment, asking to condemn an additional two-tenths of an acre, and deposited $40 with the same bank for this additional land.

The defendant filed a motion for a change of venue, alleging that, he could' not obtain a fair and impartial trial in Independence County and Stone County, on account of undue influence of plaintiff and on account of undue prejudice agaist his defense. He set up that the improvement district was composed of all lands south and a portion north of White River, in Independence County, including the city of Batesville; that most of the advocates of a bridge across White River at Batesville are property owners in Independence County, and some in Stone County; that many who favor building the bridge, including the commissioners of the district, are publicly opposing the defendant’s claim for damages because, if he prevails, the cost of the improvement will be increased and borne by the property owners of the district, most of whom are eligible for jury service in Independence County, and some in Stone County; that many of the property owners and newspapers in the district, as well as the county officials, have publicly expressed opposition to the claims and demands of the defendant, all of which tends to defeat a fair and impartial trial of the cause before a jury in Independence or Stone County. He asked that a change of venue be granted, and that the cause be transferred to Jackson County for trial.

The motion for change of venue was in proper form, and properly verified, and supported by the affidavits of auite a number of witnesses.

The court overruled the motion for change of venue, and the defendant objected and saved his exceptions.

The plaintiff then filed another amendment to its complaint, in which it stated that it did not intend to, and would not, interfere with the operation of the ferry owned by the defendant, but it expressly conceded, granted and reserved to the defendant the right to operate the ferry and the right of ingress and egress on said lands, so far as the same may be necessary for the operation of his ferry, and agreed that the decree and judgment of this court which may hereafter be rendered may contain such reservations and exceptions as will protect the defendant fully in his rights to operate the ferry.

The case was tried, and the court directed the jury to return a verdict in favor of the defendant for $3,040, which was accordingly done. Judgment was entered accordingly, proper objections and exceptions were made, and the defendant filed motion for a new trial, which was overruled on the same day, and the appellant saved his exceptions, and prayed and was granted an appeal to the Supreme Court.

Appellant’s first contention is that the court erred in refusing to grant a change of venue.

Section 10339 of Crawford & Moses ’ Digest provides that any party to a civil action trial by a jury may obtain an order for a change of venue therein by motion, etc.

Mr. Justice Humphreys and the writer believe that the change of venue should have been granted. That, to deny a change of venue where two-thirds of the county are interested as they, are in this case, practically abrogates the statute. A majority of the court, however, is of opinion that, under § 10341 of Crawford & Moses’ Digest, the court had a right to deny the motion to change the venue, and that his refusal to grant said motion was not error. The section reads- as follows:

“Hereafter the venue of civil actions shall not be changed unless the court or judge, to whom the application for change of venue is made, finds that the same is necessary to obtain a fair and impartial trial of the cause.” See also Louisiana & N. W. Ry. Co. v. Smith, 74 Ark. 172, 85 S. W. 242.

The question has been passed on a number of times by this court, and all of the decisions are to the effect that the granting or denying of a motion for change of venue is in the discretion of the trial court.

The next contention of appellant is that the court erred in directing a verdict for $3,040. Appellant concedes that this is the value of the land, considered solely for agricultural purposes. The undisputed proof in this case is that appellant owns the land on both sides of the river where the bridge is to be built.

Appellant offered to prove the fair market value of the land, and offered to prove by a number of witnesses that the value was $50,000, but the witnesses would testify that, in estimating and fixing the damages, they arrive at the amount by fixing* the value of the ferry rights, privileges and franchises attached to the land. The court did not permit appellant to make this proof.

Appellant also offered to prove the income or receipts, or revenue, derived from operating the ferry, and this testimony was also excluded.

This court has -said: “In determining* the value of lands appropriated for public use, the same considerations are to be regarded as in sales of private parties, the inquiry being, in such case,, what, from their availability for valuable uses, are they worth in the market?” Little Rock & Fort Smith Ry. Co. v. McGehee, 41 Ark. 202.

This statement of the inquiry to be made in such eases has been followed and approved by this court in subsequent cases. And the only question here is whether the testimony offered and excluded was competent testimony to prove the fair market value from the availability for valuable uses of this land. In other words, what was the fair market value of this land for any purposes for which it could be used? — for ferry purposes or bridge purposes? — the purpose of the suit being to condemn it and take it for a bridge site. Then, certainly, testimony as to the value of the land for a bridge site would be competent, and the only way in which the market value could be shown.

In the case of St. Louis, I. M. & So. Ry. Co. v. Theo Maxfield Co., 94 Ark. 135, 126 S. W. 83, 26 L. R. A. (N. S.) 1111, the court said:

‘ ‘ The measure of damages which the owner is entitled to recover for property taken for public use or depreciated by such use is the market value of it. This market value is determined, not solely by the uses to which the property has been put or is put at the time of the condemnation proceeding, but by all the purposes to which it is adapted. It may not be used at the time for any purpose that is profitable, but the use to which it may reasonably and. probably be put profitably must necessarily be taken into consideration in determining the market value of the land. ’ ’

How could its use as a bridge site or a ferry site be taken into consideration in determining its value except to prove its value, as the appellant offered to do, by showing its value as a bridge site or a ferry site? In other words, showing its value with the ferry or bridge rights or privileges.

This court said in a much more recent case: ‘ ‘ The measure of the owner’s compensation for the land condemned is the market value thereof at the time of the taking, for all purposes, comprehending its availability for any use to. which it is plainly adapted, as well as the most valuable purpose for which it can be used and will bring most in the market.” Fort Smith & Van Buren Bridge District v. Scott, 103 Ark. 405, 147 S. W. 440.

This is exactly what the appellant offered to prove. The witnesses were probably not experts, and might not pnt it in the exact language of the court, but what they were endeavoring to testify to was the market value of the land for a bridge site or for a ferry site. Appellant had a right to introduce testimony of the value of the land for a bridge site or a ferry site.

Appellees could develop on cross-examination what elements they took into consideration, and. could also develop on cross-examination the knowledge that the witnesses had of its value, and all other circumstances that affected the credibility of the witnesses or tended to show their knowledge of the thing about which they testified. It is¡ said in the Scott case, above referred to:

“Finally, it is insisted by counsel for appellant that there is no testimony tending to support the finding of the circuit court as to the value of the land taken. They contend that the only value of the land, as shown by the testimony of appellees themselves, was its use as a ferry landing, and that this is not an element of value that can be considered by the court in awarding damages in a condemnation suit. It is true that the testimony on the part of appellees tended to show that the land in question was not dedicated to the public, but was reserved in the dedicator on account of its value as a ferry landing. The court, however, is not concerned with the purpose which caused the dedicator to reserve the land. He might reserve it for ferry purposes as well as for any other purpose. The question to be determined by the court in awarding damages in this case was the value of the land taken, and, in determining this value, its availability for any use to which it is plainly adapted can be considered. In view of our decision in the case of Fort Smith & Van Buren Bridge District v. Scott, 103 Ark. 405, 147 S. W. 440, it can not be said that the finding of the court that appellees were damaged in the sum of $2,500 by tbe land taken bas no evidence of a substantial' character to support it.”

Any testimony that will tend to show the market value of the land sought to be taken for any use, or for any purpose for which the land could be used, is competent for the purpose of showing the market value of the land. The market value of the land is the question to be determined.

A tract of land might be very valuable for a bridge purpose and be practically worthless for any other purpose. A tract of land might be very valuable for a railroad right-of-way because of- its being a pass between mountains, and yet be almost worthless for any other purpose. But the question to be determined is the value for any purpose for which the land might be suitable, in this case for a bridge or ferry site, and any testimony that would tend to show its value as a site for a bridge or ferry would be competent. The witnesses therefore should have been permitted to testify what their opinion was as to its market value, basing it on the fact that it was suitable for a bridge site or ferry site, or, as they said, including the ferry rights and privileges, which means the same thing.

It is contended also that the revenue or income from the ferry was competent testimony. This would not be competent testimony for any other purpose except as tending to show the market value of the land.

“When a parcel of land is taken by eminent domain, the measure of compensation to be awarded the owner is the price which would be agreed upon at a voluntary sale between an owner willing to sell and a purchaser willing to buy; in other words, the test is the fair market value of the land. Actual market value at the time of the institution of the condemnation proceedings is usually the inquiry; but, when the defendant has already entered upon the property, and has depreciated its value thereby, the measure of damages is the difference between the fair market value of the whole property at the time of the condemnation and the present market value of the property left with, the structure thereon. The productive value of land, or the value to its owner, is not the measure of compensation and is not material except so far as it throws light upon the market value.” 10 R. C. L. 128.

So, in this case, the productive value or the income to be derived from its use is not the measure of compensation, and is not material except so far as it throws light upon the market value, but, for this purpose, it is competent and material.

In the proceedings to condemn any kind of property having a rental value, the income or rent from the property would be competent evidence to be considered solely for the purpose of determining the market value. There might be two buildings for rent situated in different surroundings, different districts with different environments, and, although the buildings might be the same in every respect so far as the material, structure, building, etc., is concerned, yet, because of different environments, one might rent for two or three times as much as the other. In determining the value of this land, both the buyer and the seller would consider these facts and consider the income derived from each in determining the market value.

The court therefore erred in directing a verdict, but, instead of doing that, should have permitted witnesses to testify as to the value of the land, taking into consideration ’ the uses for which it was suitable, and submitted the question to the jury, under proper instructions. It was also error to permit amendment to the effect that plaintiff did not intend to interfere with the operation of the ferry near said bridge site, etc. Of course, every one knows that a free bridge would destroy the value as a ferry site. The sole question here is the market value of the land taken.

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

Mr. Justice Smith concurred in judgment.

Mr. Justice McHaney dissented.

OPINION ON REHEARING.

Mehaffy, J.

The facts are fully stated in the original opinion, and it is unnecessary to restate them. A majority of the court has reached the conclusion that the petition for rehearing should he overruled, but that the opinion should ihe modified. A majority of the court are of the opinion that the evidence as to the amount of revenue or income from the ferry was not competent testimony. Mr. Justice Humphreys and the writer do not agree in this opinion, but think that the amount of revenue or income is competent for the purpose of showing the market value of the property. But the court now holds that evidence of the amount of tolls or income from the ferry is inadmissible, and that the original opinion should be modified to this extent only.

■ After a very careful reexamination of the entire case, a majority of the Judges have reached the conclusion that the original opinion is correct, except as to the testimony of amount of tolls or revenue from the ferry, and the petition for rehearing is therefore denied.


author: Mehaffy, J.

text:
    Smith v. Luster.
    Opinion delivered February 13, 1928.
    1. Mortgages — protection against laborers’ liens. — A mortgagee of a drilling outfit can protect himself against laborers’ liens, either toy taking possession of the property or toy requiring the mortgagor to give a bond to pay the laborers.
    2. Mortgages — protection against laborers’ liens. — One who takes a mortgage on a drilling outfit is bound to know the kind of use to which it is to toe put and probability of employment of laborers entitled to a lien superior to that of a mortgage, and should therefore take steps to protect himself against liens of laborers.
    Appeal from Union 'Chancery Court, .Second Division; George M. LeCroy, Chancellor;
    reversed.

      W. R. McHaney and II. B. Leathers, for appellant.

      R. M. Hutchins, Goodivin $ Goodwin and J. Hugh Wharton, for appellee.
   Mehaffy, J.

The appellants filed suit in the Second Division of the Union Chancery Court, on the 24th of December, 1925, against appellees, Harry Luster, Tom Nash and R. R. Bondurant, in the aggregate sum of $2,286, for labor and work which they had done and performed in the drilling of an oil well, located on the northeast quarter of the southeast quarter of the southwest quarter, section 1, township 16 south, range 16 west, Union County, Arkansas, and asking that a lien be declared upon the drilling rig, machinery and equipment, and the oil and gas produced from said well, to secure payment of said judgment; that the last of said labor was performed within the last ninety days prior to the filing of this suit; and gave the amount of each laborer’s claim.

A decree was rendered by default, and afterwards a motion to set aside was filed and granted, and the chancellor made a finding of facts, finding* the interest of each party, and, it appearing that other parties were necessary parties, the court ordered that they be served, which was done, and held that the plaintiffs were entitled to a lien on the leases, but that they were not entitled to a lien against the drilling* rig and not entitled to a personal judgment against the defendants, Nash, King and Bundurant.

H. R. F. Goode filed an intervention, claiming that he held ia mortgage on the drilling rig, and the court found that said mortgage was prior and paramount to all of the contracts between the parties -to the suit, and granted H. R. F. Goode’s intervention, -holding that plaintiffs had no lien against the drilling* rig.

The only question, in the case is whether the liens for labor are superior and paramount to the lien of the mortgage.

Act number 513 of .the Acts of the General Assembly of 1923 was construed by this court in the ease of Pilcher v. Parker, 173 Ark. 837, 293 S. W. 738. Section one of the act provides:

“Any person or persons working in or about the drilling or operation of any oil or gas well, or any well being drilled for oil or gas, in this State, shall have a lien on the output and production of such oil or gas well for the amount due for such work, and, in addition thereto, his lien shall attach to all machinery, tools, equipment and implements used in such drilling or operation of such oil or gas wells, including all leases to oil or gas rights on the land and upon which such drilling or operations shall be performed. Such lien shall be superior or paramount to any and all other liens or claims of any kind whatsoever, and no contract, sale, transfer or other disposition of said property shall operate to defeat said lien, and said lien shall be enforced in the same manner now provided by law for the enforcement of laborers’ liens. ”

Section two provides.: “This lien shall not be construed to be a lien upon the re'al estate of the employer or lessee, but shall be a lien upon the personal property used and connected with said drilling and operations and the output or production of said oil or gas lease on said land.”

In construing this act, this - court, among other things, said:'

“Our construction of the.act is that it gives a lien to laborers working in or about drilling operations of any oil or gas well on all machinery, tools, equipment, and implements used in such drilling operations, irrespective .of who may own the machinery. The fact that one man’s property may be taken to pay the debt of another does not render the act unconstitutional. In the instant case, according to the undisputed testimony, appellant placed his property in the possession of the lessee, knowing the purpose for which it was to be used by him, and knowing that the statute quoted above gives a lien to laborers for services performed by them in and about the drilling, operations, and he -therefore Voluntarily subjects his property to such liens as are given by the statute. He could have protected himself against the statutory-lien in favor of laborers by requiring hjs lessee to give him a bond to pay the laborers’ claims and to return it to 'him free from such incumbrances. A statute similar to act 513 was upheld as constitutional by the Supreme Court of California in the cases of Church v. Garrison, 75 Cal. 199, 16 P. 885, and Lambert v. Davis, 116 Cal. 292, 48 P. 123. Section 1 of the California statute provides that ‘ every person performing work or labor of any kind in, with, about, or upon any threshing machines, the engine, horse-power, wagons, or appurtenances thereof, while engaged in threshing,’ shall have a lien upon same to the extent of the value of his services.”

This court further quoted from the California court the following: “That the actual ownership of the property was an immaterial circumstance — the obvious theory, and, as we deem it, the correct one, being that the one lawfully holding from the.actual owner the possession and the right to operate the machine is to be deemed, for the purposes of the statute, the owner of the property. ’ ’

In the case decided April 25, 1927, construing this act, it will be observed that we said of the owner: “He could have protected himself against the statutory lien in favor of laborers by requiring his lessee to give bim a bond to pay the laborers’ claims and to return it to him free from such incumbrances.”

Our statute with reference to mortgage of personal property provides: “In the absence of stipulations to the contrary, the mortgagee of personal property shall have the legal title thereto and the right to possession.” Section 7393, Crawford & Moses’ Digest.

He would then, of course, stand in the same attitude as the owner of the property, because he is the legal owner and entitled to the possession of said property, and. as we said in the former case, could protect himself against the statutory lien in favor of laborers either by taking possession of the property, as he had authority to do under the law, or requiring the mortgagor to give him a bond to pay the laborers.

One taking a mortgage on a drilling outfit is bound to know the kind of use to which, such property shall be put, and when he takes his mortgage he knows that laborers will probably be employed, who, under the statute above quoted, will have a lien superior to the lien of his mortgage. He should therefore take such steps as might be necessary to protect himself against liens of laborers.

We have already held the statute valid, and held that the laborer was entitled to his lien even against the owner of the property, and this case is controlled by the ease of Pilcher v. Parker, supra.

The case is therefore reversed, and remanded with directions to enter a decree for a lien against the property in favor of the laborers.


text:
    Federal Land Bank of St. Louis v. Gladish.
    Opinion delivered February 13, 1928.
    1. Courts — estoppel to question jurisdiction. — One cannot come into court asserting a claim, and asking for affirmative relief, and then, when there is adverse judgment, claim that the court had no jurisdiction over his person.
    2. Appearance) — effect of appearance. — Where a defendant voluntarily appears and proceeds without objection to the court’s jurisdiction over his person, the court acquires jurisdiction, whether summons was issued or served or not.
    3. Appearance — pleading to merits. — Where a foreign'corporation, being sued in a State court, filed a counterclaim seeking affirmative relief, it thereby entered its general appearance and waived any defect in the service or failure to obtain the proper service on it.
    4. Attorney and client- — -amount of fee. — In an action by an attorney at law to recover for legal services in foreclosure suits where plaintiff had presented to defendant a hill for $350 for his fee after completion of his legal work, and the evidence tended to show that this amount was a reasonable fee, the judgment of the lower court will be reduced to this amount and judgment entered accordingly.

      Appeal from Mississippi Circuit Court, Osceola District; IF. W. Bandy, Judge;
    modified and affirmed.

      J. R. Crocker, W. II. Bengel and IF. IF. Prewitt, for appellant.

      C. M. Buck, for appellee.
   Mehaffy, J.

The plaintiff, an attorney at law, practicing in the courts of Arkansas, brought suit against the appellant, the Federal Land Bank of St. Louis, alleging that, at the special instance and request of the Federal Land Bank, he rendered legal services by representing the bank in the institution and prosecution of certain foreclosure suits in the chancery court of Osceola District of Mississippi County, Arkansas, naming the suits which he broug’ht and prosecuted, and alleging that large and valuable tracts of real estate were involved, said real estate being'of the market value of $20,000. That he diligently looked after the prosecution of said suits, prepared and filed all papers and legal documents in connection with said suits, and in general looked after and attended to all the matters pertaining to said foreclosures, and that his services were of the value of $1,000‘, and that the bank refused to pay the same.

It was further alleged that Tolbert Poole was indebted to the Federal Land Bank, and had goods, moneys or chattels in his hands belonging to said bank. He asked for judgment against the bank, and that Poole be required to answer, etc.

The complaint was accompanied by an affidavit of appellee, stating that appellant was a foreign corporation; warning order was issued, and an attorney ad litem appointed.

The appellant filed a motion to quash the service and dismiss the suit, appearing solely for that purpose, and, as a reason for said motion, stated that the appellant is a corporation organized and existing .under and by virtue of an act of Congress of the United States, approved July 17, 1916; that its domicile and principal place of business is in the city of St. Louis, Missouri; that it had no place of business in Arkansas, and no agent in said State upon whom' service might he had; that the chief officers resided in St. Louis, Missouri, the domicile of the bank, and that it had been a resident of the city of St. Louis continuously since the commencement of this action, and that service had not.been had upon the chief officers of said corporation or any other officers thereof, or upon any duly authorized agent or employee: •It was further alleged that appellant was not a domestic or foreign corporation, but a local corporation organized and existing under and by virtue of the act of Congress, from which it derives its powers to transact business. It alleged that it was not such a corporation as that service of process could be had by a warning order.

The bank, by agreement, entered its special and limited appearance solely and for the only purpose of hearing on its motion to dismiss the suit.

Thereafter the bank, reasserting that it had never been legally served, and insisting upon its motion to quash service, filed an answer under protest, admitting that appellee represented it as its attorney in certain foreclosure suits, but stated there was an agreement or contract entered into whereby appellee was to represent appellant in certain foreclosure suits in Mississippi County for a fee of $25 in each and every case submitted to him. That, in the two suits mentioned by appellee, it tendered him the sum of $50 as his fee for the services rendered. Denies that it is indebted to him in the sum of $1,000, or in any sum in excess of $50.

It is alleged in the answer that no services of any kind were rendered except as stated in the answer, and that the sum of $50 was to be in full payment of services in these cases.

Defendant then filed a cross-complaint or counterclaim, alleging that the services were unsatisfactory, and the decree or record failed to establish the rights of the bank; that said decree was so carelessly, improperly and imperfectly drawn that it was necessary, in order to protect the rights and interests of the complainant in said cause, to engage in further prosecution in said cause to correct the errors, imperfections, etc. That plaintiff’s services were of no value, and appellant had to employ additional counsel. That it was damaged by reason of appellee’s carelessness, and entitled to recover the sumuf $150 as damages.

Defendant filed answer to cross-complaint, and denied the material allegations, and thereafter appellant filed an amendment'to its motions to quash service.

We deem it unnecessary to set out at greater length the pleadings in the case. There was testimony taken on the part of each of the parties tending to show the value of the services performed or what would be a reasonable fee for the services performed, and on this issue the testimony was in conflict.

The appellee testified about the services performed and the value of said services, and introduced a letter written to him by the St. Louis attorney of the bank, in which it was stated that the usual terms in cases of the kind mentioned was $25. The appellee responded to this letter, stating that he would attend to the matter for the fee indicated. There was some correspondence about the other case, and numerous other letters and correspondence introduced by both parties.

The appellant admitted that appellee had performed certain services not included or contemplated in the original contract, and appellee testified that a reasonable fee in the two cases would be from $600 to $650. Correspondence was introduced showing that appellee had presented a bill for the service in the two cases for $350.

The cause was submitted to the court sitting as a jury, and the court, after having* heard the evidence and argument of counsel, found for the appellee in the sum of $600, and judgment was rendered for $600, from which this appeal is prosecuted.

Appellant filed motion for a new trial, alleging nine grounds or reasons for a new trial. We think it unnecessary to set out the motion for new trial at length.

The important question is whether or not the appellant is in court. If the court had no jurisdiction over the person of appellant, this, of course, would end the case, and there would be no reason to discuss or decide the other questions. The appellant contends that it did not, by its motion to quash service and dismiss suit and its answer and counterclaim, submit itself to the jurisdiction of the court, and calls attention to the statement in E. C. L., which holds, in effect, that the prevailing rule that, in a proceeding by which jurisdiction over the person of the defendant is to be obtained, is in no case waived by the appearance of the defendant for the' purpose of calling the attention of the court to such irregularities, nor is the objection waived when, being urged, it is overruled, and the defendant is thereby compelled to answer. It is only when he pleads to the merits in the first instance, without insisting upon the illegality, that the objection is deemed to be waived. 2 R. C. L., p. 339.

Appellant cites several other cases supporting the text, and again quotes from E. O. L. as follows:

“Where a defendant raised jurisdictional objections in the lower court, and takes an appeal for the sole purpose of having the rulings on such objection reviewed in the appellate court, his appearance in the latter court will not be considered as a waiver of such objection.” Citing 4 C. J. 1347, and other authorities.

If the appellant had done no more than is mentioned in the above authorities, we would have a different question, but it is unnecessary to decide whether these acts would amount to a waiver of his objection. ' But it not only filed an answer, it filed a counterclaim or cross-complaint, asking for affirmative relief. In addition to this, it entered into an agreement that, the suit should be tried at Blytheville, Arkansas, before W. W. Bandy, Judge, and fixing the date of the trial.

To be sure, in the last agreement referred to it is still insisted ’that it had not been properly served. But one cannot come into court, assert a claim, ask the court for affirmative relief, and then, when there is an adverse .judgment, claim that the court had no jurisdiction over his person. If this could be done, the appellant would have the opportunity and advantage of prosecuting- its claim and, in ease it recovered judgment, it could collect, and at the same time take no chances of a judgment against itself.

“Broadly stated, any action on the part of the defendant, except to object to the jurisdiction over his person, which recognized the case as in court, will constitute a general appearance.” 4 C. J. 1333.

A court acquires jurisdiction over the person of a plaintiff whenever the plaintiff appears and invokes the power or action of the court in any manner, and when the defendant voluntarily appears in any case and, without objection, proceeds, the court thereby acquires jurisdiction over his person, whether any summons was issued or served or not.

This court has recently said: “While a suit upon the note and upon the contract of sale are entirely separate and distinct causes of action, the effect of defendant’s answering the complaint and defending the action entered its appearance.” Purnell v. Nichol, 173 Ark. 496, 292 S. W. 686.

In the same section in R. C. L. as that quoted and relied on by appellant is the following statement:

“On the other hand, there are numerous oases in which the defendant has been held to waive any question of jurisdiction over his person by taking some step to contest the cause upon the merits after his motion on special appearance has been overruled. One seeking to take advantage of want of jurisdiction in every such case must, according to these decisions, object on that ground alone. He must keep out of court for every other purpose. If he goes in for any purpose incompatible with the supposition that the court has no power or jurisdiction on account of defective service of process upon him, he goes in and submits for all the purposes of personal jurisdiction with respect to himself, and cannot afforwards be heard to make objection.” 2 R. C. L., 340.

In this case the appellant not only pleaded to the merits and participated in the trial, bnt filed a counterclaim and asked for a .judgment against the appellee. Its position now is that it is in court if it wins and not in court if it loses.

“A defendant appearing specially to object to the jurisdiction of the court must, as a general rule, keep out of court for all other purposes. In other words, he must limit his appearance to that particular question or he will be held to have appeared generally and to have waived his objection. If he takes any step consistent with the hypothesis that the court has jurisdiction of the cause and the person; such special appearance is converted into a general one, whether it is limited in its terms to a special purpose or not.” 4 C. J. 1319.

“We are also of the opinion that, when the defendant Maitland made answer setting up various counterclaims, demanding judgment thereon, he thereby voluntarily submitted his person to the jurisdiction of the court for all intents and purposes as fully and completely and with the same force and effect as if the summons had been duly and personally served upon him within this State. * * * We are also of the opinion that the defendant, the Penobscot Mining 'Company, voluntarily submitted to the jurisdiction of the court by similar methods and acts as defendant Maitland, and that the court had jurisdiction over the persons of both appealing defendants for the' purposes of rendering the judgment from which the appeal is taken. ’ ’ Rogers v. Penobscot Mining Co., 28 S. D. 72, 132 N. W. 792, Ann. Cases 1914A, 1184.

In a note to the above case is the following:

“The test as to whether an appearance is special or general is, the court says, the relief asked. It is special if it is made for the sole purpose of objecting to the jurisdiction of the court over the person of the defendant. It is general if the defendant invokes the judgment of the court, in any manner, on any question other .than that of .jurisdiction of the court, or in resistance to the cause of action he is called on by the plaintiff and the rulings of the court involuntarily to defend.”

Appellant recites and relies on the case of Seelbinder v. Witherspoon, 124 Ark. 331, 187 8. W. 325, and quotes extensively from that case. That suit was brought and service had in a county other than the one where the suit was pending, under a statute authorizing service in such cases. That provides simply where a single defendant lives in the county and service is had on him, the summons may be served on other defendants in other counties. But it expressly provides that the plaintiff shall not be entitled to judgment against any of them on service of summons in another county than that in which the action is brought, where no one of the defendants is summoned in that county or resided therein at the commencement of the action, or where, if any of them resided or were summoned in that county, the action is discontinued or dismissed as to them, or judgment therein is rendered in their favor, unless the defendant summoned in another county, having appeared in the action, failed to object before the judgment to its proceeding against him.

The law expressly authorized the defendant served in another county to make his defense, provided he objects to the service and states the reason for it. That was what was done in the Seelbinder v. Witherspoon case. He objected to being put on trial because he was not served in the county. The other defendant, Seelbinder, was personally served with summons, and filed an answer, denying liability. When the case was called for trial in the circuit court, all the parties announced ready for trial, whereupon, before any evidence was offered, appellee asked and obtained permission to take a nonsuit as to Plugo Seelbinder, and the cause was dismissed as to him. The defendant then immediately renewed his objections to the cause proceeding, and it proceeded over his objections. And, before judgment, defendant objected to judgment being entered against him. This is the procedure pointed cut by the statute in cases of that kind, and, no matter what his pleading had been up to that time, as soon as a nonsuit was taken as to the person served in the county, or if a verdict was rendered in favor of the person served in the county, then, in either event, the defendant served without the county would be entitled to a judgment in< his favor.

And the court expressly states in the case relied on: “The authority for this suit against appellant as a resident of Crawford County, where he was served with process, in the courts of Sebastian County, is found in § 6074 of Kirby’s Digest.” That section is now § 1178 of Crawford & Moses’ Digest. The court further said, quoting from a former decision Wernimont v. State, 101 Ark. 219, 142 S. W. 194, 198, Ann. Cas. 1913D, 1156 :

“It is the policy and spirit of our law, enacted into statute by our Legislature, that every defendant shall be sued in the township or county of his residence. To this general principle there are statutory exceptions, chiefly in cases where there, is a joint liability against two or more defendants residing in different counties. In such cases it is provided that suits may be brought in the county of the residence of any of the defendants, and service of summons can then be had upon the other defendants in any county, thereby giving .jurisdiction over their persons to the court wherein the suit is.thus instituted. But, before this jurisdiction can be acquired, by virtue of these statutes, over the person of such defendants, nonresident of the county wherein the suit is instituted, it is éssential that the defendant resident of the county where the suit is brought shall be a bona fide defendant. By our statute it is further provided that, before judgment can be had against such nonresident defendants, a judgment must be obtained against the resident defendant.”

It will therefore be seen that the case of Seelbinder v. Witherspoon has no application.

In the other case referred to, Barry v. Armstrong, 161 Ark. 314, 256 S. W. 65, the court simply said:

“It is first contended that the court erred in ref ns ing to quash the service, but we must treat the motion to quash as having’ been waived by reason of the fact that appellants, without preserving their rights in that respect by an express reservation in their subsequent pleading’s, filed an answer as well as a cross-complaint, thus voluntarily submitting* to the jurisdiction of the court. This constituted a waiver, and it is too late now to raise the question of insufficiency of the service, or fraud in procuring the service. ’ ’

The only point decided in the last case quoted from is that, when one files an answer or counterclaim without preserving his objections, he waives the defective service. But the point involved here was not considered in that case at all.

Another case to which attention is called is Spratley v. Louisiana & Arkansas Ry. Co., 77 Ark. 412, 95 S. W. 776. In that case the court said:

“We held that, under the Code of Practice, a plea in abatement that the court has no jurisdiction of defendant’s person for want of proper service is not waived by pleading in bar to the complaint, nor by appealing from an adverse judgment. There is no doubt but that, where a party who has not been served with summons, answers, consents to a continuance, goes to trial, takes an appeal, or does any other substantial act in a cause, such party by such act will be deemed to have entered his appearance.”

It is true that the court said that, where a party objects, this does not apply. Where he preserves his protest he cannot be said to have waived his objection. But certainly he cannot go into court and ask affirmative relief and enter into the stipulations entered into in this case, without entering a general appearance. Greer v. Vaughan, 96 Ark. 524, 132 S. W. 456.

The case of Dunbar v. Bourland, 88 Ark. 153, 114 S. W. 467, has no application.

Appellant also calls attention to the case of Automatic Weighing Co. v. Carter, 95 Ark. 118, 128 S. W. 557. That case does not touch the question involved here.

The appellant in this case, by filing a counterclaim and asking for affirmative relief, asking the court to give it judgment, thereby enters its appearance and waives any defect there might be in the service, or any failure to get proper service, if there was such failure. In other words, the defendant, by filing a counterclaim and asking affirmative relief in the court, thereby subjected itself to the jurisdiction of the court, whether it had been served at all or not.

It is also contended by the appellant that the appellee is not entitled to any recovery above the amount stated in his account or bill presented.

The appellee was employed, first, under contract fixing the compensation for his services, but the evidence shows that he performed some services not included in the original contract, for which, of course, he was entitled to additional compensation. However, after the completion of the work, he presented a bill to appellant for $350! for h'is fee in both cases, and this, we think, fixed the amount of the fee at what he thought it should be.

There is some conflict in the testimony of other witnesses about the value of the services or the amount of a reasonable fee, but we think the testimony conclusively shows that the $350 fee is proper compensation for the services performed by appellee.

Holding as we do that the filing of the counterclaim and action of appellant entered its appearance, it becomes unnecessary to decide the other questions discussed by learned counsel.

The judgment of the circuit court will therefore be modified, and judgment entered here for appellee for $350. It is so ordered.


text:
    Sullivan v. Arkansas Valley Bank.
    Opinion delivered February 13, 1928.
    1. Parties — demurrer for- defect of parties. — A demurrer on the ground of defect of parties does not raise the question that there is a misjoinder of parties.
    2. Corporations — application of doctrine of ultra vires. — The doctrine of ultra, vires, meaning that the acts of a corporation in excess of its powers are void, does not apply to torts committed by a corporation, 'but only to its contracts or contractual relations.
    3. Banks and banking — liability of bank for torts. — Where a bank falsely represented that a mortgage company had securities sufficient to pay its bonds, it is liable, notwithstanding an alleged want of authority of such bank to make such representations.
    4. Equity — effect of want of jurisdiction. — Where a demurrer to the jurisdiction of the chancery court was well taken, the court should not dismiss the complaint, but should transfer the cause to the law'court.
    5. EQUITY' — JURISDICTION TO COMPEL ACCOUNTING. — A complaint against a bank by purchasers of the bonds of a mortgage company to recover fox the bank’s false representations inducing the sale of such bonds, alleging that the mortgage company was bankrupt, and that the bank held a large number of securities in trust for plaintiffs and had been guilty of a breach of trust, held to give chancery jurisdiction to compel an accounting from the bank and for the appointment of a trustee to take charge of the securities held by the bank and to sell them for the bondholders’ benefit.
    6. Equity — suit for accounting — when not premature. — A suit by bondholders against a bank and others for misrepresentations in the sale of a mortgage company’s bonds, and asking that securities held by the bank in trust be sold and that the bondholders recover from the bank and its officers such sum as might be found to represent plaintiff’s losses, held not objectionable as premature, since a personal judgment was sought only as to the excess due after sale of the securities.
    Appeal from Sebastian 'Chancery Court, Fort Smith District; J. V. Boitrlancl, Chancellor;
    reversed.

      Dobbs & Young and John D. Arbuckle, for appellant.

      Dailey & Woods, Hill, Fitshugh <& Briszolara and Warner, Hardin & Warner, for appellee.
   Mehaffy, J.

The appellants brought suit in the Sebastian Chancery Court against the Arkansas Valley Bank, a State banking institution, and individuals, trustees of the John A. Guthrie Mortgage 'Company, bankrupt. Suit was brought for themselves and all other persons similarly situated., After isuit was brought, numerous other bondholders intervened and made themselves parties plaintiff, and adopted the complaint and amended complaints of the original plaintiffs.

Plaintiffs alleged that the defendant, John A. Guthrie, was president, W. H. Johnson vice president, Hugh Branson treasurer, and Oran C. Yoes secretary of the John A. Guthrie Mortgage Company, and were also stockholders and members of the board of directors, and composed the executive committee of the said John A. Guthrie Mortgage Company, and, by the by-laws of the said company, said defendants were required to be actively engaged, and were actively engaged, in the manr agement and financial condition of the John A. Guthrie Mortgage Company; that each land all of them held themselves out to the public as being actively engaged in the management, direction and control of the affairs of the mortgage company; that they caused to be printed advertisements, circulars, letters and other printed matter, and caused the same to be circulated throughout Arkansas, Oklahoma, Kansas, Vermont, and" other states, representing themselves to be in charge of and directing the affairs of said company.

Plaintiffs alleged that the Arkansas Valley Bank was a banking institution under the laws of Arkansas, and doing business at Port Smith, Arkansas, and that Hugh Branson was its president; that all of said defendants daily land continuously held out to the general public, and especially to, these plaintiffs, that the mortgage company was a solvent concern of unquestioned financial soundness, and deserving of public confidence, and further, by word of mouth and by private letters, generally throughout the county, assured the general public* and especially these plaintiffs, that the said mortgage company was wholly solvent and reliable, 'and carried a large surplus, and that investors in its securities and stock could stand no chance to lose their money, and that it had more money than it could loan on farms throughout the States of Arkansas and Oklahoma. That the officers and directors of the executive committee of the mortgage company authorized and caused to be issued bonds of said company, and advertised that said bonds were secured by first mortgages held/by the defendant, Arkansas Valley Bank, as trustee for the purchasers; that the plaintiffs relied upon the said advertisements, and purchased part of the bonds. Many others purchased bonds in a like manner; that the Arkansas Valley Bank, through its president, Hugh Branson, accepted the trust, and that each of said bonds bore on its face a certificate which was set out in said complaint, setting out the securities. and mortgages. That the advertisements, circulars and letters, etc., were false and wholly untrue; that the defendants knew the bonds were not secured by first mortgages, but many of the securities were unsecured promissory notes, and others were notes given where no money had ever been received by the borrower. That the mortgage company was, on July 14, 1926, declared bankrupt; that the Arkansas Valley Bank holds in trust for the plaintiffs a large number of notes, secured and unsecured, but that they are insufficient to liquidate the indebtedness; a large part of them are second and third mortgages. That the Arkansas Valley Bank had been guilty of gross breach of duty as trustee; that the Arkansas Valley Bank knowingly and negligently breached its trust agreement and dissipated or permitted to be dissipated trust property, and that it knowingly and fraudulently made and executed and put forth various false and fraudulent certificates in writing upon various bonds held by the plaintiffs, duly signed by the authorities of said bank officials, which false certificates were executed, made and put forth with the fraudulent intent th'at it would bo relied upon, and it was relied upon, and was known by the officials and directors of the bank to be false, and was done with the intention of deceiving, and did deceive, plaintiffs. Plaintiffs further alleged, that the certificates issued by the bank were false and fraudulent, and known to be so, made with the intention to deceive, and did deceive, the parties.

The complaint is very lengthy, but it is unnecessary to set it out in full here.

Defendants filed a demurrer, because they alleged, first, that the complaint did not state .sufficient facts to. constitute a cause of action 'against the bank; second, because the court has no jurisdiction of the subject-matter; third, because there is a defect of parties.

There were other demurrers filed by other defendants, but they are all in the same language. That is, they demur on the ground that there is a defect of the parties; thlat the court has no jurisdiction, and that the complaint does not state facts sufficient to constitute a cause of action. The court sustained the demurrers on the ground of defect of parties defendant. Then, after plaintiffs had refused to elect or to amend, and having elected to stand upon the amended or supplemental complaint, the court then sustained the demurrer on each ground. Plaintiffs excepted, and have prosecuted an appeal to this court.

Appellant’s'first contention is that the holding of the court that there was a defect of parties and sustaining the demurrer because of defect of parties defendant, is error. We agree with counsel for appellant in this contention. There is no defect of parties defendant.

Defect of parties means too few, and not too many. The parties have discussed misjoinder of parties and misjoinder of causes of action, but have not discussed defect of parties.

“The first example in support- of the demurrer is that there is a defect of parties plaintiff. But that, as a ground of demurrer, means too few and not too many. A demurrer alleging this particular objection can be interposed therefore only in case of a nonjoinder of necessary plaintiffs or defendants, and never in a case of misjoinder.” Tieman v. Sachs, 52 Ore. 560, 98 Pac. 163.

It is doubtful whether misjoinder of parties could be raised on demurrer. Our statute provides:

“The defendant may demur to- the complaint where it appears on its face either, first, that the court has no jurisdiction of the person of the defendant or the subject of the action; second, that the plaintiff has no legal capacity to sue; or, third, that there is another action pending between the ¡same parties for the same cause; fourth, that there is a defect of parties plaintiff or defendant, or that the complaint does not state facts sufficient to constitute a cause of action.”

But whether a demurrer would reach misjoinder of parties or not, that question is not before the court, because the demurrer is on the ground of defect of parties, and not misjoinder.

“It is urged that there is a misjoinder of parties defendant. As this does not come within the terms of defect of parties, it is doubtful whether the question may be raised on demurrer.” United States v. Comet Oil & Gas Co. (C. C.), 187 Fed. 674.

'Counsel in their 'brief and argument do not claim that others should be made parties or that the defendants are too few, and there is no defect of parties, and the demurrer based on this ground should be overruled. The appellants for the bank say in their brief that the court was clearly right in sustaining the demurrer because there was a defect of parties defendant. But they argue that the allegations with reference to the defendant, Johnson, were in no wise-connected with the allegations witln reference to the Arkansas Valley Bank. That mig*ht be true and still the court could not sustain a demurrer for defect of parties, because, if that was true, it would be merely a misjoinder of parties, and that question is not raised by the pleadings.

Attorneys for Johnson and Branson argue defect and misjoinder of parties and causes of action as if those questions were raised by the demurrer, which is based on the ground of defect of parties. The question of misjoinder of parties defendant or misjoinder of canses of action was not raised by the demurrer.

It is earnestly contended by the attorneys for the Arkansas Valley Bank that, even if the allegations of the complaint are true, it does not state a cause of action against the bank. It is argued that for a bank to attempt to do the things which it is alleged the bank did do in this instance is ultra vires, and that, for that reason, the bank is not liable, and learned counsel cite the case of Grow v. Cockrill, 63 Ark. 418, 39 S. W. 60, 36 L. R. A. 89.

The only question decided in that case, as we understand it, was that-a national bank is not authorized to act as a broker in lending money to others, and the court said that the bank had no authority to transact business of that kind, and that the teller was not acting within the scope of his authority and business when he committed the torts complained of, and cites a Pennsylvania case as holding that.

The allegations of the complaint in this case against the bank are that it falsely represented that it had securities on hand sufficient to pay these bonds; that it made and published false statements about the condition of the mortgage company; that it induced these persons to invest their money in worthless bonds when it knew they were worthless, and the suit is based on tort, so far as the bank is concerned, and it has been many times held that the doctrine of ultra vires does not apply to a corporation’s torts, but only to its contracts or eontractural relations. Suits are maintained against corporations every day and recoveries had for negligence, willful wrong, and all kind of torts, and it has never been contended, so far as we know,'that.a corporation was not liable for these things because it was ultra vires.

“Is the doctrine of ultra vires applicable to this case? The doctrine of ultra vires has never been held to apply to la corporation’s torts, but is limited to its eontractural relations. ’ ’ Greeley National Bank v. Wolf, (C. C. A.) 4 Fed. Rep. (2d) series, 67.

The above is. a rather recent case, decided in January, 1925, and it cites a number of■ eases holding that doctrine.

“Corporations are liable for every wrong they commit. And in such cases the doctrine of ultra vires has no application. They are also liable for the acts of their servants while such servants -are engaged in the business of their principal, in the same manner and to the same extent that individuals are liable under like circumstances. # * * Recurring to the case in hand, it is now well settled that, if a bank be accustomed to take such deposits las the one here in question, and this is known and acquiesced in by its directors, and the property deposited is lost by the gross carelessness of the bailee, a liability ensues in like manner as if the deposit had been authorized by the terms of the charter.” National Bank v. Graham, 100 U. S. 699, 25 L. ed. 750.

The above case cites quite a number o<f authorities.

“In Bissell v. Michigan So. & N. I. R. Co., 22 N. Y. 258, a leading- case, the court held that corporations, like natural persons, have the power and capacity to do wrong. That corporations have no right to violate their charters, but they have the capacity to do so, and are to be bound by their acts, 'where a repudiation of such acts would result in manifest wrong to innocent parties; that the plea of ultra vires, according to its just meaning, imports, not that the corporation could not make the unauthorized contract, but, that it ought not to have made it; that such a defense is not to be entertained where its allowance will do great wrong to innocent third parties; that, although corporations cannot rightfully do any act not authorized by their charters, yet such acts, when done, are to be regarded as the corporation’s acts; and if, in the course of their performance, others are injured by the negligence of the officers of the corporation, the corporation is responsible; such liability arising from the duty which every railway company owes to persons within its cars with its consent.”

■Citing a number of authorities, the court, continuing, says: “While they (corporations) have no right to violate their charters, yet they have the capacity to do so, and are bound by their acts where a repudiation of them would result in manifest wrong1 to innocent parties, and especially when the offender alleges his own wrong to avoid a just responsibility.” Burke v. State, 64 Misc. Rep. 558, 119 N. T. Supp. 1089. The court in the above case also said: “It would seem that the action of the

defendant in assuming to carry on the business of dentistry was illegal and ultra vires. But, though it was beyond the corporate powers of the defendant to engage in the business, this does not relieve it from the torts of its servants committed therein.”

The Supreme Court of the United States, in a later decision than the 100 U. S., quoted with approval the case of National Bank v. Graham, and, after quoting from the Graham case, the court said:

“We are of opinion that the execution of the receipt or certificate in question and its transmission by mail direct by the defendant to the plaintiff created the relation of bailor and bailee between her and the defendant, and made it an act of gross negligence for the defendant to deliver or dispose of or appropriate the securities in question on the sole request of Juda, and without her direct authority.”

The court further on said:

“Knowing, from what passed between Mass and Juda, that the bonds were to be used to raise money for the benefit of'Walker Sons & Company, and knowing that such use was an improper disposition of the bonds unless the transaction wais affirmiatively and directly sanctioned by the plaintiff, the defendant became a party to the misappropriation of the bonds. It is immaterial, in this-view, whether or not the defendant received any portion of the money loaned by the Bank of Commerce on the security of the bonds.” Manhattan Bank v. Walker, 130 U. S. 267, 9 S. Ct. 519, 32 L. ed. 959.

The appellee is correct in the statement that a bank organized under the laws of the State of Arkansas has restricted powers, and this is true of any other corporation. But any corporation mjay have the capacity to do many things that it does not have the right to do. As we understand it, the bank would not be liable on any contract where the contract was beyond its power to make, but ultra vires has. reference to .contractual relations and not to tort. But, if the bank and its officers committed thé acts alleged in the complaint, the bank could not defend itself when charged with the wrongful conduct by showing* that it did not have authority to commit the acts.

We think the complaint states a cause of action, and that the demurrer based on the ground that the facts stated did not constitute a cause of action should have been overruled.

The next ground of demurrer is that the court had no jurisdiction of the subject-matter. The court dismissed the cause when, if it appeared to the court that the demurrer as to jurisdiction was well taken, it should not, on that ground, have dismissed the complaint, but should have transferred it to the law court.

The only thing* that appellees say about the ground of demurrer last mentioned is: “That the matters involved as against them were not cognizable in equity, and was purely a common-law action for a tort.”

‘ ‘ The complaint prayed for an accounting against the bank, that a trustee be appointed to take charge of all securities, funds and assets held by the bank, that they be ordered sold for their benefit, and that the plaintiffs have and recover of and from each defendant such a sum as may be found to be their losses sustained by the false representations and deceit of the directors,” etc.

We think the allegations of the complaint'are sufficient to justify the prayer, and that those allegations are sufficient to give the chancery court jurisdiction.

It is also contended by appellees that the suit was prematurely brought. Whether this question could be raised by demurrer in this particular case need not be decided, because the complaint asks that this property first be sold — -this is, the securities; and it could not be premature, certainly, in asking this relief, and if this relief is granted, then’ the other would, of course, not be premature, because they would only recover a judgment against the parties for any excess or any amount for which the defendants were liable in excess of the amount that the securities sold for.

The case will be reversed, and remanded with directions to overrule the demurrers. It is so ordered.


author: McHaney, J.

text:
    Rogers v. Agricola.
    Opinion delivered February 13, 1928.
    1. Wells — construction of codicil. — .A codicil is in le^al effect a republication of the will, and the whole is to be construed together as if executed at the date of the codicil.
    2. Wills — effect of codicil. — A codicil, duly executed, will operate as a republication of an earlier will, although such earlier will was inoperative, or imperfectly executed or attested.
    3. Wills — effect of'codicil. — Where a will was typewritten with but one witness and did not comply with the statute, and subsequently the testator wrote a codicil entirely in his own handwriting, referring to the previous will, the two instruments were to be regarded as one instrument, and the execution was sufficient.
    Appeal from Clark Circuit Court; J. E. McCollum, Judge;
    reversed.

      McMillcm & McMillan, for appellant.

      Joe Eardage and Joseph Callaway, for appellee.
   McHaney, J.

In his lifetime, and on the 6th day of June, 1924, Carl Bogers executed the following typewritten instrument as and for his last will and testament:

“Missouri Pacific Bailroad Company.
“I, Carl Bogers, of the city of Arkadelphia, county of Clark, State of Arkansas, being of .sound mind, memory, and understanding, do make and declare the following as my last will and testament, that is to say:
“(1) I hereby revoke, lall wills, codicils, or testamentary instruments by me at any time heretofore made. (2) I direct that my funeral expenses and just debts be paid as soon after my death as may be practicable. (3) I give and bequeath to my brother, Tracy Rogers, all my earthly possessions at my death, he being made administrator. (4) My last will is there be no division or deviation from this testament.
“In witness whereof I have hereunto set my hand and seal at the Merchants’ & Planters’ Bank of Arkadelphia, Arkansas, this sixth day of June, in the year one thousand nine hundred and twenty-four.
(Signed) “Carl Rogers.
“Witness R. J. Dougun. ”
Thereafter, on September 15, 1926, he executed the following instrument as a supplement or codicil to the foregoing typewritten will, same being entirely in his own handwriting:
“Arkadelphia, .Ark., 9-15-26.
“This document will serve as a supplement to my last will and testament.
“It is my will that Sam Rogers (brother) shall occupy building on Seventh Street, which he now occupies, as long as he lives, with the following provisions, if Tracy Rogers (brother), the lawful owner of the building, continues to make his home with Sam Rogers. (2) If any difference arises between my brothers above mentioned, said Sam Rogers shall pay Tracy Rogers $15 per month rent, after Tracy Rogers has removed from the home of Sam Rogers.
“It is further willed that Sam Rogers have my shotgun, and my sister, Mrs. Agricola, my diamond pin.
“I herewith will one dollar ($1) to each of my brothers, namely, W. Y. Rogers, S. B. Rogers, J. D. Rogers, Ben Rogers, also one dollar ($1) to each of my sisters, Mrs. L. E. Agricola and Mrs. Ruth Yarbrough.
“All my debts and funeral expenses shall be paid before any final settlement made with benefactor.
■ (Signed) “Carl Rogers.”
“9-15-26.”

Carl Rogers, on the 27th day of November, 1926, died, and thereafter, on the 10th day of December, 1926, said two instruments above copied were filed in the probate court of Clark County for probate, land on the 19th of January, 1927, the probate court made an order admitting them to probate and declaring them to constitute the last will and testament of the said Carl Rogers. An appeal was prayed and prosecuted by the appellees, as contestants, to the circuit court, where the case was submitted to the court on the following agreed statement of facts:

“The two instruments filed for probate and the statement of facts below and in the four following sheets constituted the agreed statement of facts, on which the cause is submitted. Carl Rogers (deceased) was born and reared and lived all of his life at Arkadelphia, and died on the 27th day of November, 1926, at the age of thirty-eight years. 'Seven brothers and sisters and one niece (daughter of brother) survived him. They are W. Y. Rogers, 54 years old; Sam B. Rogers, 47 years old; Mrs. Ruth Yarborough, 30 years old, and Tracy Rogers, his beneficiary, 35 years old; and the contestants, Mrs. Elmer Agricola, 42 years old; Jess Rogers, 45 years old; Ben Rogers, 33 years old, and Mrs. Jodie Cobb, '26 years old. All of these brothers and sisters are able-bodied, capable men land women, and all are in reasonably prosperous circumstances, except Tracy Rogers, the beneficiary. Tracy Rogers, at the age o.f three years, by accident, broke one of his legs; infection set up, and it became necessary to and it was amputated by physicians. Due to the injury and amputation of the one, the other leg became paralyzed, and from that time to the present he has been unable to walk. For a long number of years, after his affliction, he could only get about by crawling on his hands, and using the lower part of his body. After he reached the lage of about fifteen years he was able to get about some by the use of crutches, and his condition in that respect has remained and is now the same. He owned no property, had no income, and has no employment.
“Carl Rogers (deceased) was from infancy strong, able-bodied and energetic. Until about a year before his death he was an unusually strong, healthy, robust man, over six feet in height, and of good personal appearance. He was three years older than his beneficiary, Tracy Rogers, and in the infancy of both he began caring for, helping, guarding and protecting his crippled brother, Tracy, and this care for Tracy continued until Carl died.
“His father died when Carl was about 17 years of age, and left his mother and Tracy and two younger children than he was. The other children, older, had married. Carl continued to live with his mother, and, at the age of seventeen, began and became the principal means of support for the mother and younger children. This continued until his mother died. On her deathbed she asked and Carl promised that he would always take Care of and protect Tracy. The other children married and found homes elsewhere, and Carl continued unmarried in the care, support and protection of Tracy.
“For some time before his death Carl owned the brick building which Sam B. Rogers, his brother, occupies and in which he runs a barber shop. The agreed amount for rent on this shop between Carl and Sam was $15 per month, and in lieu of Sam’s paying the rent to Carl, there was an agreement between Carl and Sam that Sam Rogers would furnish board land room to Tracy Rogers and would accept as pay therefor the $15 rental for the barber shop. This arrangement had been in force and had been followed for some time before Carl’s death. This was the only business building that Carl owned.
“Carl Rogers was a good business man, a good trader, and saved money. For some years before his death he had been in the employ of the Missouri Pacific Railroad Company in various capacities, as clerk, assistant station agent, and, at the time of his death and for some three or four years prior thereto, he was cashier for the Missouri Pacific Railroad Company at its Arkadelphia .station, and had an office in the freight depot, and, in writing* letters and statements, used a typewriter. He had continued all along through the years to support and care for and look after the welfare of his brother Tracy, and, for some time prior to the 6th day of June, 1924, repeatedly stated to Tracy and to his brothers, W. Y. Rogers and S'am B. Rogers, and to close friends and others, that he intended to continue to take care of Tracy and that he intended to make a will so that, in the event of his death, Tracy would have his. property.
“On the 6th day of June, 1924, Carl Rogers had in his possession the typewritten instrument which is in evidence here and offered for probate. Just after the typewritten instrument had been written he. stated to friends and co-employees in the office with him, that he had made his will, and was giving all his property to his brother Tracy. He then went with the instrument to the office of his brother, W. Y. Rogers, in Arkadelphia, showed it to him, and told this brother that he was going to execute it and place it in a safety box at the Merchants’ & Planters’ Bank, so that, in the event of his death, the - will would be there, and Tracy would be taken care of.
“He went to the Merchants’ & Planters’ Bank with the instrument, and there signed his name to it, with a pen, and the then cashier of the Merchants’ & Planters’ Bank & Trust Company, R. J. -Dougan, signed it with, a pen as a witness. The signature to this typewritten instrument is in the handwriting of Carl Rogers (deceased), and the name R. J. Dougan is signed in the handwriting of R. J. Dougan.
“At that time and since that time, up to and after the time of his death, Carl Rogers and his brother Sam B. Rogers, together, used one of the safety lock-boxes in the vault of the Merchants’ & Planters’ Bank & Trust Company. Both kept their'valuable papers in that box. Sam B. Rogers kept and carried the key to the box. Carl, after he had signed the instrument, and -the witness Dougan had signed it, showed it to Sam B. Rogers, and stated to him that he wanted to put it in the lock-box there and to keep it there. This instrument was then placed in that lock-box at the Merchants’ & Planters’ Bank & Trust Company, continued to remain there until a day or two after Carl’s death, when .Sam B. Rogers opened the box, and handed the instrument to the beneficiary, Tracy Rogers.
“In the spring of 1926 Carl Rogers became afflicted with some internal stomach or bowel trouble, and, while he. continued at his work mo.st of the time, it gave him a great deal of trouble and caused him a great deal of worry. This trouble continued until the latter part of the summer of 1926, when it became necessary for him to go to a hospital and have an operation. During this time he often expressed to his brothers and friends doubt as to his being able to overcome the affliction, and repeatedly, at such times, would add that he had made a will so that his brother Tracy would get his property.
“For some months prior to his death he had a room in the house of his sister, Mrs. Elmer Agricola, one of the contestants, and after his death the instrument which is in evidence here, and which has been probated in the Clark Probate Court, and which is entirely in the handwriting of Carl Rogers (that is, the entire body and all of the instrument, as well as the signature and the dates, are in his handwriting and the fact that it is entirely in the handwriting of 'Carl Rogers [deceased] has been established 'by the unimpeachable evidence of more than three disinterested witnesses), and which is dated ‘9-15-26,’ was there in his room, and within a few days after his death was delivered by Mrs. Elmer Agricola to Sam B. Rogers.
“About the date of this instrument — that is, September 15, 1926, land just after, and repeatedly thereafter at various times, Carl told Tracy Rogers and Ms other brothers that he had written and signed this codicil, or supplement, to his will, which was in the lock-box at the bank, and this instrument.was in Ms room.
“Just a short while before his death he realized that he wlas not going to recover, and again told his brothers, Sam B. and W. V. Rogers, and his beneficiary, Tracy Rogers, of Ms having written and signed this supplement to his will and where it would be found.
“Ben W. Rogers, one of the contestants, is also a cripple, having had one of his hands cut off. ’ ’

On a hearing the circuit court decided that these two instruments were not executed las required by law, so as to constitute a will, and should not ‘ have been admitted to probate as such by the probate court of Clark County, and entered a judgment rejecting them, and reversing the order of the probate court. From this judgmeiit Tracy Rogers has appealed to this court.

It is ladmitted by appellant that the typewritten instrument purporting to be the last will and testament of Carl Rogers was ineffectual as a will, for the reason. that it was not attested by two witnesses, and did not therefore meet the requirements of the statute. It is furthermore agreed that the second of the above instruments is wholly in the handwriting of the testator. If the first instrument, the typewritten will, had been properly attested, there could be no question about the second instrument, wholly in the handwriting of the testator, being a good holographic codicil to the will. See § 10494, C. & M. Digest, 5th subdivision.

The testator called the instrument in his handwriting a supplement to his will. “This document will, serve as a supplement to my last will and testament. ’ ’ This instrument therefore can be nothing more thlan a codicil to his former will, and, while the former instrument, strictly speaking, cannot be called a will, lacking the necessary witnesses, yet it is an instrument testamentary in form, and if the codicil dated September 15, 1926, sufficiently identifies it by reference thereto, we must treat it as incorporated therein and republished las of the date of the codicil.

As stated by this court in Gibbons v. Ward, 115 Ark. 184, 171 S. W. 90: “A codicil is in legal effect a republication of the will, and the whole is to be construed together as if executed at the date of the codicil. ’ ’

And in 40 Cyc. 1215, it is said:

“As a general'rule, revival or -republication brings the will down to the date of the repnbliciation, and makes it speak as of that time.”

And on page 1216 of Cyc., with reference to invalid wills, it is isaid:

“By the weight of authority a codicil duly executed will operate as a republication of an earlier will, although the latter is inoperative or imperfectly executed or attested.”

That is exactly the situation here. The original will being invalid on account of being imperfectly attested, but the codicil being a good holographic instrument, executed in accordance with the statute relating to holographic wills, operates as a republication of the original will, although imperfectly executed, and the two are to be regarded as being one instrument, speaking from the date of the codicil. This was the question before the Supreme Court of Missouri in Harvey v. Choteau, 14 Mo. 587, 55 Am. Dec. 120, where there was an invalid will for the reason that it did not comply with the requirements of the statute, and a codicil executed later that did meet the requirements thereof. The court said :

“Will the proof of this codicil establish the will? Can an unattested will be set up and republished by a codicil not physically annexed' to the will, but which is attested by a sufficient number of witnesses required by law to prove a will1? These are questions of weighty import, and have demanded our patient consideration.”

'The court, after citing* eminent authority in support thereof, including Judge Story and Chancellor Kent, said:

“Here, .then, is a very respectable authority, that ‘reference’ is sufficient. I confess I see no good reason why it should not be. In cases like the present, the question of identity may sometimes arise: Is this the will referred to ? But this can always be settled -by the facts in proof.
“I am therefore free to declare that I can see no legitimate reason why a properly attested codicil may not draw down to it a previously made, though unattested, will, to which the codicil refers, upon its face, though not annexed by wafers or any other mode physically.”

The holding in O’Leary v. Lane, 149 Ark. 393, 232 S. W. 432, was to the effect that deeds referred to in the will were not sufficiently identified by .the will itself to effect a conveyance of the real estate described in the deeds. This was all the court decided in that case. The language in the will, which referred to certain deeds purporting to convey certain property to his heirs, was, “which property I give and bequeath to each of said heirs as conveyed in said deeds.” The court then said:

“This language refers to deeds in the testator's safety deposit box in the Farmers’ & Merchants’ Bank of Des Arc, Arkansas, at the time the will was executed, and, if the instrument referred to is sufficiently identified, the language quoted was sufficient to effect a conveyance of the real estate.” ■

The court then goes on to hold that the deeds were not sufficiently identified by the will. The court further said in .this case that “there could be no objection, however, in devises of real estate, if the language of the will itself is sufficient to effect a conveyance of the lands, to refer to an extraneous instrument for the description merely, if the will sufficiently designates the extraneous instrument so as to certainly identify it.”

In the codicil of the will now under consideration the testator refers to his former will, and sufficiently identifies the real estate as the building on Seventh Street, which Sam Rogers then occupied, and of which .Triacy Rogers was the then owner. It is not stated in the agreed statement of facts that he owned any other real estate, and' the reference to the real estate in the valid codicil is sufficiently definite to determine its location. The former will, which was not properly attested, is sufficiently referred to as to identify it as a part of his whole will. It is not shown that he made any other will at any time, and it is not questioned that he signed this former document, believing it to be his will. The whole thought of 'Carl Bogers seemed to be to take care of his totally helpless, crippled brother.

We are of the opinion therefore that the two instruments constituted the will of Carl Bogers, and that the circuit court erred in setting aside' the judgment of the probate court admitting same to probate. The judgment is therefore reversed, land remanded with directions to enter a judgment sustaining the probate of said will. It is so ordered.


author: Hart, C. J.

text:
    Bernstein v. Reid.
    Opinion delivered February 20, 1928.
    Carriers — loss op shipment — limitation, —Where a bill of lading for an interstate shipment of cotton authorized by U. S. Comp. St., § 8604a, was issued on July 15, 1919, and the cotton was delivered to the consignee in Louisiana on July 23, 1919, a suit for one bale lost in transit 'brought on November 29, 1921, was bárred, since it was not brought within two years and a day as required by the bill of lading.
    Appeal from Columbia Circuit Court; L. S. Britt, Judge;
    reversed.

      Henry Stevens, for appellant.

      Wade Kitchens, for appellee.
   Hart, C. J.

Appellant prosecutes this appeal to reverse a judgment against it in favor of appellee for $296.40, the value of a bale of cotton alleged to have been 'lost in transit in an interstate shipment of cotton.

This was an action by a shipper of cotton under a transportation contract for la .shipment of 92 bales of cotton from Magnolia, Arkansas, to New Orleans, Louisiana. Appellee had 92 bales of cotton stored in the warehouse of the Columbia Compress Company in Magnolia, Arkansas, and gave directions for his cotton to be shipped to New Orleans, Louisiana. The compress company loaded the cotton into a car of the railroad company on one of its tracks near the warehouse. The car containing the cotton was sealed by the railroad company, and it signed the bill of lading presented to it by the compress company. The bill of lading was dated July 15, 1919, and contained a condition on the back of it which reads as follows:

“Except where the loss, damage, or injury complained of is due to delay or damage while being loaded, ■or damaged in transit by carelessness or negligence, as conditions precedent to recovery, claims must be made in writing to the originating or delivering carrier within six months after delivery of the property (or, in case of export traffic, within nine months after delivery at port of export), or, in case of failure to make delivery, then within six months (or nine months, in ease of export traffic), after a reasonable time for delivery has elapsed; and suits for loss, damage or delay shall be instituted only within two years and one day after delivery of the property, or, in ease of failure to make delivery, then within two years and one day after a reasonable time for delivery has elapsed.”

The cotton was consigned to H. R. Gould Company, New Orleans, Louisiana, and was delivered to that company on the 23d day of July, 1919. The seals .had not been broken on the ear when the cotton was delivered to consignee, but, when the cotton was unloaded from the car, it was ascertained that there were only 91 bales in it. Notice that one bale was missing was given to the railroad company, but it refused to make piayment for the cotton. Hence this lawsuit.

One of the defenses to the suit is that it was not brought within the time provided by the act of Congress regulating interstate shipments. The act of Congress in question provides for bills of lading to be issued by the carrier receiving the property for transportation from one State to another, and contains a proviso which reads as follows:

“Provided, further, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he had under the existing law; provided, further, that it shall be unlawful for any such common carrier to provide by.rule, contract, regulation, or .otherwise, a shorter period for giving notice of claims than ninety days and for the filing of claims for a shorter period than four months, and for the institution of suits than two years; provided, however, that if the loss, damage, or injury complained of was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness .or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery. (24 Stat. 386; 34 Stat. 595; 38 Stat. 1196; 39 Stat. 411). ’ ’ See United States Compiled Statutes, Annotated, vol. 8, § 8604a, p. 9291.

The proviso also copied in the bill of lading was made pursuant to this act. The bill of lading for the cotton was issued by the railroad company on July 15, 1919, iat Magnolia, Arkansas, and the cotton was delivered to consignee at New Orleans, Louisiana, on July 23,1919. The present suit was not instituted until November 29, 1921.

In A. J. Phillips Co. v. Grand Trunk Western Ry Co., 236 U. S. 666, 35 S. Ct. 444, 5 L. ed. 774, the fact was that all claims for the recovery of damages for overcharges were not brought within, the time prescribed by the act of Congress. It was contended, however, that the case was to be governed by the Michigan rule, which did not permit a defendant to take advantage of the statute of limitations by a general demurrer to the declaration. The Supreme Court of the United States denied the contention, however, and in discussing the question said:

“But that rule does not apply to a cause of action arising under a statute which indicates its purpose to prevent suits on delayed claims, by the provision that all complaints for damages should be filed within two years, and not after. Under such a statute the lapse of time not only bars the remedy but destroys the liability (Finn v. United States, 123 U. S. 227, 232, 8 S. Ct. 82, 31 L. ed. 128), whether complaint is filed with the Commission or suit is brought in a court of competent jurisdiction. This will more distinctly appear by considering the requirements of uniformity, which, in this as in so many instances, must be borne in mind in construing the commerce act.”

To the same effect see Missouri, Kansas & Texas Ry. Co. v. Harriman, 227 U. S. 657, 33 S. Ct. 397, 57 L. ed. 690. This declaration of the law regulating interstate shipments, by the Supreme Court of the United .States, is of controlling force, because it is the tribunal of ultimate authority for the settlement of the question.

This court, however, has announced the same rule in the case of Farr v. St. Louis Southwestern Ry. Co., 154 Ark. 585, 243 S. W. 800. The .second syllabus contains the gist of the holding of the court on the question, and reads as follows:

“In an action by a shipper against a connecting carrier for damages from delay and neglect as to a shipment which the shipper received from the initial carrier, a bill of lading providing that, ‘ except where the-loss, damage or injury complained of is due to -delay or damage while being loaded or unloaded, or damaged in transit by carelessness, or negligence, as condition precedent to recovery, claims must be made in writing to the originating -or delivering carrier within six months after reasonable time for delivery h'as elapsed, and suit for loss, damage or delay shall be instituted within two years and a day after a reasonable time for delivery has elapsed, held that suit must be brought within two years and a day, as the exception relates only to the written notice of the claim.”

It follows that the judgment of the circuit court must be reversed; and, inasmuch as the undisputed evidence shows- that the right of action was barred because not brought within two years, the cause of action will be dismissed here. It is so ordered.