author: Mehaeey, J.

text:
    Vanemburg v. Duffey.
    Opinion delivered June 18, 1928.

      Cole & Poindexter, for appellant.

      8. M. Casey, for appellee.
   Mehaeey, J.

This suit was brought by appellant to recover $2,375, being 5 per cent, of the sale price of lands which appellant claims as commissions for making the sale for appellees.

Appellant is a broker, engaged in procuring purchasers and selling real estate in Independence County and surrounding territory, with offices at Batesville, Arkansas, and has been so engaged for a number of years. The appellees were owners of a tract of land in Independence County, known as the Gainor farm, which they desired to sell. Appellant alleges that they -employed him to make a sale of said land, and that he did make the sale to one Ben Desha for the price fixed by appellees. He alleges that he was acting under the orders and at the instance o'f the appellees, and that he sought and found a purchaser, and that appellees knew these facts. He alleges that, by reason of such employment and the result of which was accepted by the appellees, he is entitled to a fair and reasonable brokerage commission, and alleges that the customary commission is 5 per cent, on the sale price.

The appellees filed answer, denying all the material allegations of plaintiff’s complaint, and, the regular judge being disqualified, Hon. T. D. Wynne of Fordyoe was elected special judge to try the case, and, by agreement of parties, a jury was waived and the case was tried by the judge sitting as a jury.

The appellees knew appellant, and knew the business in which he was engaged. According to appellant’s testimony, he had a conversation with one of the appellees, Gainor Duffey, something like a year before the sale of the land. He knew Duffey, and was familiar with the Gainor farm, the tract of land involved, and he testified that this conversation he had with Duffey was in the latter part of 1924 or the first part of 1925. That Duffey asked him if he had any one interested in river bottom farms, and he replied that he did. Duffey told appellant that he had a farm for sale, and fixed the price at $60,000. Appellant testifies that, immediately after that, he commenced talking to Mr. Desha, who was interested in it, and stated that it was worth $40,000. He testifies that he told Duffey this, and Duffey replied that he would not consider $40,000 at all.

Appellant then testifies that, on the 20th day of November, 1925 or 19'26, he thinks it was 1925, he met Duffey on Main Street, in the morning about 9 o’eloek, and told Duffey, if he would get down to brass taoks, he was in touch with a party to sell his farm to. Duffey asked him what he meant by brass tacks, and appellant told him they were going to build a bridge there, and that it would make his farm worth less, and the principal part of this conversation was about the depreciation in the value of the lands because of the building of the bridge. But appellant told him, according to his testimony, that he was in touch with a party that he believed would give $43,000, and Duffey told him he would not take it. Appellant then said he might be able to get $45,000, and Duffey said he did not think he would take $45,000. But he testifies that Duffey said he would take it up with Mrs. Fitzhugh, and that they would take it up with Mrs. Ponder, the sisters of Duffey, who were interested in the land. ■ He also testifies that Duffey said for appellant to try to get in touch with his party and see how high he could pull them up, and he would see him in the morning. The next morning he was standing over there in front of the stairway in front of the building where appellant’s office is, and Duffey came down the street, and asked appellant what he knew. Appellant told him he was pretty sure the parties that he was figuring with would give $45,000, and Duffey said he would not take it. He then told him he believed he could pull them up to $47,500, and Duffey replied that there had been a person figuring with him for twelve months, and that he thought it was the same fellow appellant had in mind, that it was Désha Lester. Appellant told him it was not Desha Lester, and Duffey then said if it was not Lester he would hold the man off from renting the place until 4 o’clock. Appellant then, according to his testimony, went up to the office, and was making preparations to go over to see Mr. Desha. That Mr. Desha soon came in town, and appellant took him up to his office and told him if he wanted to buy the farm now was the time to buy it. That he could sell it to him for $47,500. .That Desha said he did not think he would go over $43,000, that $45,000 was a big price. Appellant told Desha that $47,500 might be a little high, but it joined Desha’s other land, and he did not think he would let $2,500 stand in the way, and then Desha said to tell them he would accept the property. Desha agreed to meet witness and Duffey at one o’clock, and they met at Judge Bone’s law office to have the contract written, and appellant testified that he said: “I have sold Mr. Duffey’s farm to M.r. Desha, and want you to write the contract for us,” and that Desha said he was buying the farm for his nephew, Desha Lester.

The above is the substance of the testimony of appellant, and Ernest Morris, witness for him, corroborated him as to the conversation on the street in front of appellant’s office, and Ben Desha also testified about the conversation that occurred in Judge Bone’s office. The contract was written by Judge Bone, and the place was sold to Desha Lester for $47,500.

Appellees deny that they ever employed appellant to make the sale, and state that they had been negotiating with Desha Lester for more than a year, and that the place was sold to Desha Lester.

We think it would be useless to set out the testimony in detail. There was considerable conflict in the testimony of appellant’s witnesses and the witnesses for appellees, and it was purely a question of fact as to whether there Avas a contract or not.

A contract with a broker to sell real estate is like any other contract. It may be express or implied, and may be either written or oral. But, whatever may be its form, it must appear that there was an offer and an acceptance. There must be an agreement of some kind. It would not be necessary, of course, that they agreed on the amount of the commission, but there must be ah understanding that the appellant would undertake to sell the property for appellees and that appellees accepted the services of the appellant with the understanding that the appellant would he paid for his. services.

Appellant’s first contention is that the contract need not he in writing, and in this contention appellant is correct. The statute of frauds has no application.

It is next stated by appellant that Duffey and Mrs. Fitzhugh knew that appellant was a real éstate broker. The testimony is undisputed as to this proposition. They knew he was engaged in the real estate business as a broker.

It is next contended by appellant that Mrs. Fitz-hugh knew that her brother was dealing with appellant in this matter and relies on the following testimony of Mrs. Fitzhugh to support this contention:

“Q. You knew your brother was negotiating this sale, did you not? A. He came in Friday, and told me Mr. Bee Vanemiburg had stopped him in the street and wanted to know what the lowest price was.”

Certainly the above did not indicate to her that her brother had employed Mr. Vanemburg, or that she was under any obligations to him for selling* the place.

The next question raised by appellant is, Did appellee, Duffey, employ appellant to sell this land? We have already quoted the testimony of the appellant substantially, and there is some conflict in the testimony, although the testimony of the appellant himself on the question of any agreement is very meager, and does not show any agreement to pay for appellant’s services; that neither party sought him, and that he was endeavoring to get the sellers to take less than they offered and endeavoring to g*et the purchaser to pay more than he offered, and that he finally got them together, according to his testimony.

Appellant calls attention to and quotes from a good many authorities on the question of the liability to pay a commission where a broker had been employed to sell property. There is no conflict in the authorities as to the liability for commissions where one has employed a broker to sell property. If one employs a broker to sell property and he sells it, the broker is entitled to his commission. But the question here is whether the broker was employed to sell the property and whether there was ever any implied agreement to pay him a commission. The burden was on appellant to establish by a preponderance of the evidence that he had been employed.

The rule is stated in Mechem on Agency, as follows:

“To entitle the broker to commissions for his «services; he must make it appear that the services were rendered under an employment and retainer by the principal, or that the latter accepted his agency and adopted his acts, under circumstances reasonably indicating that the principal knew the services had been rendered on his account and in reliance upon his obligation to pay for them. If the broker rendered the services as a mere volunteer, without any employment, expressed or implied, he cannot recover commissions, even though he brought the parties together and was the efficient means of procuring the consummation of the bargain.” Mechem on Agency, 2426.

Corpus Juris states the rule as follows:

“To entitle a broker to compensation, he must have been employed to negotiate the transaction in connection Avith which his services were rendered. In the absence of such employment, or, in other words, Avhere the broker acts as a mere volunteer, he is not entitled to compensation, although his services are the efficient cause of bringing the parties together and result in a sale or other contract between them.” 9 C. J. 554.

“As it takes two to make a bargain, a broker is not entitled to be compensated for his services unless they Avere rendered pursuant to the express or implied request of his employer. To warrant a recovery upon his part, he must have 'been actually employed by the person he is seeking to hold liable, for otherwise there would be no legal basis for his claim to compensation, notwithstanding the fact that a purchaser may have been found through information furnished by him. The calling of a broker is not preferred, in the eye of the law, to that of other occupations, and lie is no more entitled to remuneration for -services voluntarily rendered without any employment, express or implied, than any other member of the community. While a contract of employment may be implied from subsequent acts of ratification on the -part of the alleged principal, to warrant the inference of a previous request, the owner must say or, do something tending to prove that he accepted the broker as his agent in the matter — 'something more than merely selling to the party whom the broker, while acting as a volunteer, brought to him. Of course, the fact that a vendor accepts the benefits of a broker’s efforts does not render him liable to the broker for commissions on the theory of ratification, where he did not know that the broker was working in his behalf, but, on the contrary,-the circumstances of the broker’s endeavors indicated that he was working in the interest of the -purchaser. • * * * Furthermore, it is practically universally held that the mere asking and receiving the price -of property does not of itself make the broker the agent of the -owner, entitling him to commissions, although he finds a purchaser, or the owner subsequently disposes of the property to one with whom the broker had negotiated.” 4 B. €. L. 298.

In a recent and well considered case it was said:

‘ ‘ The broker, like other agents, derives his authority from the appointment of his principal, and, in order to obtain rights himself, or establish liability to others against his principal, or to incur liability to his principal, the fact of his appointment must be made to appear. * * * The principal cannot be bound by, or be made liable for, services rendered by a broker which are purely voluntary on the pant of the latter, and performed without the express or implied consent of the principal; but, even in such cases, the principal may, by availing himself of the benefits of the services, not only ratify and confirm the acts done, but render himself liable to the broker for their value. * * * To entitle the broker to commission for his services, he must make it appear that the services were rendered under an employment and retainer by the principal, or that the latter accepted his agency and adopted his acts, under circumstance's reasonably indicating that the principal knew that the services had been rendered on his account and in reliance upon his obligation to pay for them.” 49 A. L. R. 919.

In the same case the court also said: “But a contract of employment and an agreement to pay commissions will not be implied from the mere fact that the owner of property consents to the rendition of services by a broker which result in a sale of the property, especially where the owner had no knowledge that the broker was acting as such before the sale was consummated, or where he had previously refused to employ the broker.”

Again, it was said in the same case: “A ratification of his act, where the original employment is wanting, may, in some circumstances, be equivalent to an original retainer, but only where there is a plain intent to ratify. An owner cannot be enticed into a liability for commissions against his will.”

We think that the most that can be said in this case is that the owner of the property consented to the rendition of services, and that the parties really had no knowledge that fhe broker intended to charge them any commission. At least, it was a question of fact for the trial court to determine whether or not there was a contract with the understanding that appellees would pay a commission, or whether the circumstances were such as to justify the conclusion that a contract was in fact made.

The law is so well settled in this State that it is unnecessary to cite authorities or to review the authorities cited by parties at any length. It is the rule in this State that, if one employs a broker to sell real estate and nothing is said about the commission or the amount of it, then the broker, if he makes the sale, is entitled to the customary commissions. But it is also well settled by the decisions of this court that, before he is entitled to commissions for making a sale, there must have been a contract or an agreement, either express or implied, that he was acting for the owner of the land, and expected pay for his services.

The testimony in this case, as we have already .said, is conflicting, the appellees testifying that they never employed the appellant. And the testimony of the defendants contradicts that of the appellant in several particulars.

This court has said: “While the testimony of the plaintiff on this point was contradicted hy that of the defendant, the finding of the circuit court in favor of the plaintiff is conclusive upon us upon appeal.” Courtney v. G. A. Linaker Co., 173 Ark. 777, 293 S. W. 723.

The finding of the trial court sitting as a .jury, on questions of fact, is as conclusive here as the finding of a jury. And the rule is that, if there is any substantial evidence to support the findings of the trial court, its findings will not be disturbed.

In this case there was substantial evidence to support the finding of the trial court, and the judgment is therefore affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Kleiner v. Parker.
    Opinion delivered June 18, 1928.

      W. A. Leach, for appellant.

      John L. Ingram and L. P. Biggs, for appellee.
   Mehaeey, J.

This suit was brought by appellant, on behalf of himself and other taxpayers of Arkansas County, against the county .judge, county clerk, commissioners and contractors, for the purpose of enjoining the defendants from constructing a courthouse in the Northern District of said county, and to enjoin them from proceeding under the orders of the court or the contract, and to prohibit the clerk from issuing warrants, and the plaintiff asked that the contract be declared void.

The levying court appropriated the sum of $50,000 for the purpose of building a courthouse at Stuttgart, in the Northern District of said county, payable in warrants $5,000 a year out of the county revenues until the $50,000 was paid.

The county court appointed the commissioners for the purpose of contracting and supervising the construction of the courthouse. The commissioners reported at the October term of the county court, and. submitted plans and specifications for the building to be erected. The report of the commissioners was approved, and they were ordered to advertise for bids for the construction of said building, at a cost not to exceed $50,000, and to enter into a contract for the erection of said building-according to the plans and specifications, with persons who would agree to do said work at the lowest price, not exceeding the amount appropriated. Commissioners were ordered to take a bond for the performance of the work, as provided by law.

Ogietree & Barrett bid and offered to do said work for $50,000, payable in county warrants, and this bid was the lowest bid made, and was accepted by the board, and a contract entered into. Their .action was reported to the county court, and the court approved the contract and ordered the commissioners to proceed with the work of construction.

The appellant in his complaint alleged that the orders of the levying court and the county court were void, first, because said order was made on the 19th day of February, 1927, which was not a day of the regular term of said court, and no meeting for said day was legally called; second, that the Northern District of Arkansas county had no courthouse, and has never had, and it is alleged that the county court has no authority to 'contract for the erection of a new courthouse by warrants payable in the future; third, it is alleged that the annual income or revenue of the county is insufficient, after meeting the necessary expenditures for the life of the contract, to meet the payment of the warrants as they become due. It is also alleged that the courthouse could be built, according to plans and specifications, for $34,000 or $35,000, instead of $50,000. And the evidence showed that the courthouse, which will, if built according to plans and specifications and paid for in warrants payable over a number of years, cost $50,000, could be built for $34,000 or $35,000 cash.

Appellant’s first contention is that the order of the county court was void because there was no emergency. The statute provides that, in case of an emergency, the county court may call a meeting of the quorum court, and said quorum court shall have authority to act upon any matter designated in the order of the county court calling for such meeting. It is admitted that the quorum court was called under § 1977 of Crawford & Moses’ Digest, and that the right to do so was based on the fact that an emergency existed.

Appellant insists that there is no emergency, because the Northern District of Arkansas 'County had no courthouse, has never had a courthouse, and that it has no authority to -contract for the erection of a new -courthouse by warrants payable in the future.

The order of the -court calling a meeting of the quorum court recites, among other things, that the county’s lease -on the building in Stuttgart which it has been using as a courthouse in the Northern Di-strict, has expired, and that the county is forced to procure other quarters in which to hold court and keep its records in said district. And it further appears that, from year to year, the county is paying for rents on buildings for courthouse purposes large sums of money, which will, if continued, in a few years amount to enough to build a courthouse. The judgment of the county court recites:

“It is the opinion of the court, in view of the fact that the -county is the owner of valuable lots, suitable and well located, that an appropriation should be made and a courthouse be constructed in Stuttgart on said lots -as soon as practicable. And the court, being well advised and the premises being fully seen, hereby finds and declares that an emergency exists, and a meeting of the levying or quorum court is hereby called to -meet at the courthouse in DeWitt, Arkansas, on the 19-th day of February, 1927, at 10 o’clock a. m. on said day, for the purpose of considering and voting an appropriation for the construction of a courthouse in said district,” etc.

Unless the county court can build a courthouse, it would have to make arrangements to rent or lease a building in which to bold court and keep the records, and the finding of the county court is that the county would soon pay enough in the way of rent to build a courthouse. Besides that, the county owns, according to the undisputed proof, valuable lots suitable and well located for a courthouse. It is true that the fact that the county has the lots suitable for a courthouse and needs a courthouse would not justify the calling of the quorum court for the purpose of building a courthouse, unless an emergency existed. And the contention here made is that no emergency existed for calling the quorum court, under § 1977 of Crawford & Moses’ Digest; that, even if the county had authority to build a courthouse and the money with which to build it, provision for building same would have to be made at a regular term of the quorum court, unless an emergency exists, and that no emergency is shown to exist.

Emergency, as used in the statute quoted, simply means a pressing necessity. And' the county court having found that there was an emergency, and no proof being offered tending to disprove or contradict the findings and judgment of the court, a majority of the court is of the opinion that the facts found by the county court constitute an emergency.

While the writer does not believe an emergency existed under the facts in this case, it is the opinion of the court that there does exist a pressing necessity or emergency, and that therefore the county court had a right to call a meeting of the quorum court to act upon the matters designated in its order.

As to what constitutes an emergency, see Colfax County v. Butler County, 83 Neb. 803, 120 N. W. 444; United States v. Sheridan-Kirk Contract Company, 149 Fed. 809; Mallon v. Board of Water Commissioners, 144 Mo. App. 104, 128 S. W. 764.

The appellant says that, while he does not waive the question of the proper meeting place, he believes it was held at the proper place. We think that this is a correct conclusion.

Act 63 of the Acts of the General Assembly of 1913 establishes two judicial districts in Arkansas County, and it provides for the holding of circuit, chancery and probate courts and the court of common pleas in each district. But it does not provide for holding any county court at Stuttgart, in the .Northern District. Therefore the only place where county court can •''be held is at DeWitt, the county seat.

It is next insisted by the appellant that the order of the county court and the contract are void because the courthouse, under the contract awarded, will cost $50,000 in county warrants, payable $5,000 a year, when the evidence shows that the same courthouse could be built for $34,000 or $35,000 in cash. And it is insisted that this is in violation of § 1 of article 16 of the Constitution, which, among other things, prohibits any county from issuing any interest-bearing evidences of indebtedness.

The undisputed evidence in this case shows that the county advertised for bids according to law and that the contract was let to the lowest bidder, and there is no con: tention in this case and no evidence of any fraud or collusion. This is not a contract to pay interest, but it is a contract to build a courthouse for a specified sum of money, to be paid in annual installments, and this question has been settled by several decisions of this court,' and it is no longer open to question whether a contract of this kind is valid.

In the case of Campbell v High, 176 Ark. 222, 2 S. W. (2d.) 1101, it was contended that the consideration provided for by the contract was fraudulently fixed at an exorbitant amount to include carrying charges or interest, because of the fact that the consideration was to be ■paid in warrants maturing in the future over a number of years, instead of in cash; that said contract calls for the payment of $199,500; that the cost of said courthouse, and jail, if paid for in cash, would not exceed the sum of $150,000. In passing* on that question the court said:

“In Stone v. Mayo, 135 Ark. 130, 204 S. W. 751, it was held that, where a contract to build a county courthouse was let to the lowest bidder, and there was no evidence of fraud or collusion between the contractor and the courthouse commissioners, there was a valid and binding contract between the parties. In discussing the principles of law governing* cases of this kind the court said: ‘That case controls this. Here was a straight contract for the construction of the courthouse for $91,806.90. There was no evidence of any collusion among the bidders to perpetrate a fraud on the court to have the contract let at a higher price because of the depreciated value of the county warrants, nor is there any testimony to warrant the conclusion that the county court entered into collusion with the contractor to give him the contract at an increased price because the value of the county scrip was less than par. The fact that the bidders made inquiry and ascertained that the value of the county warrants was less than par, and made their bid with such knowledge, does not establish that there was collusion between them to stifle the bidding and to defraud the court by securing a contract at a higher price on account of the depreciated value of the county warrants. There is no allegation that the county court, or its commissioner, or the bidder, in securing the contract, were guilty of fraud.” Campbell v. High, 176 Ark. 222, 2 S. W. (2d.) 1101. See also Kirk v. High, 169 Ark. 152, 273 S. W. 389; Ivy v. Edwards, 174 Ark. 1167, 298 S. W. 1006; Lake v. Tatum, 175 Ark. 90, 1 S. W. (2d.) 55; Norman v. Blair, ante p. 649.

We think the cases cited above settle all the questions raised in this case, and a review of the authorities here would serve no useful purpose The evidence shows that the annual income or revenue is sufficient'to meet the payments after paying the necessary expenses of the county. The authorities on all the questions involved in this case may be found reviewed in the cases above cited.

Under the authority of the recent decisions of this court, the decree of the chancellor is affirmed.


author: McHaNey, J.

text:
    Home Fire Insurance Company v. Parker.
    Opinion delivered June 18, 1928.

      Wynne & Miller, for appellant.

      Moore, Walker & Moore, for appellee.
   McHaNey, J.

Appellee held a policy of fire insurance in the Home Fire Insurance Company of New York, written by Hugh Mixon of Marianna, covering certain personal property, in the sum of $1,000. This company directed Mr. Mixon to cancel said policy, and on the 8th day of January, 1927, he canceled the policy, and issued another policy for appellant to appellee, covering the same risk and for the same amount. On said date Mr. Mixon Avrote appellee the following letter:

“January 8, 1927.

“Mr. E. L. Parker,,

“Lexa, Arkansas.

“Dear Mr. Parker: This insurance company in which I have your household goods policy is not ¡being written by us any longer. We are today reneAving your insurance • in another company, and will run one year from date.

“Please return the policy you now have and we will give you credit for return premium and apply it on the new policy.

“If you decide to move to Marianna, the policy will not be affected except in a reduction in rate. I have a house I want you to look at when you arrive here.

“With very best regards,

“Yours very truly,

‘ ‘ Hugh Mixon Agency.

“Manager.”

Appellant’s policy, although issued on that date, was not countersigned and delivered to appellee until after the loss occurred on the 12th day of January, 1927. There is a clause in the policy of the Home Fire Insurance Company of New York, as in all standard fire insurance policies, to the effect that a policy remains in force five days after notice of cancellation is given, and the loss occurred within the five-day period. Appellee made proof of loss, and demanded payment of the full amount of his policy, the total loss being more than $1,800, which appellant refused to pay and this lawsuit followed, resulting in a verdict and judgment against appellant for the full amount sued for, plus 12 per cent, penalty and an attorney’s fee of $150.

It is first insisted that the court committed error in refusing appellant’s request for a peremptory instruction. This contention is based on the ground that the policy of the Home Fire Insurance Company of New York was still in effect on the date of the fire, by reason of the five-day cancellation clause heretofore mentioned,- and that, under the concurrent insurance clause in its policy, same never became effective and binding on it, because of the prior insurance existing in the Home of New York. We do not agree with counsel in this contention, as the letter of Mr. Mixon to appellee shows clearly that he had canceled the policy of the Home of New York, and that he had renewed the risk in appellant company. The five-day clause referred to does not apply to a situation of this kind. It is for the benefit of the policyholder. While the company has the right to cancel it, it cannot do so until the expiration of five days, without the consent of the policyholder, which gives him this time in which to secure additional insurance. Being for the benefit of the policyholder, it is a provision that can he waived by him, and was waived in this case by the acquiescence of appellee in the action of Mr. Mixon, who stated that he had canceled the policy in the Home of New York, and had re-written it in appellant company, to run one year from date, and it makes no difference that the policy was actually countersigned and delivered after the fire, because the appellee rested under the assurance of Mr. Mixon that his risk was covered. Mixon was the general agent for both companies, holding blank policies, with the power to execute and deliver and bind his companies immediately on fire insurance risks. Milwaukee Mechanics’ Ins. Co. v. Fuquay, 120 Ark. 330, 179 S. W. 497.

In the case of Phoenix Insurance Co. v. State, 76 Ark. 1801, 88 S. W. 917, 6 Ann. Cas. 440, this court held that an agent authorized to write policies of insurance may also act as the agent of the property owner, by agreement with the owner to keep his property covered with insurance, and to select the companies in which the policies shall be written. We think we may safely assume, in this case, that the agent of appellant had authority from appellee to keep his property insured. At least the agent assumed such authority by canceling the policy then held by appellee and reissuing it in appellant company. It cannot therefore be said that the action of the agent was without the authority of the assured, nor is there an attempted-cancellation by substitution of the policy of another company. There was an actual cancellation and an. actual issuance of another policy. Therefore the cases cited by appellant have no application to the facts in this case.

Appellant also complains of instruction No. 1 given by the court at appellee’s request, as follows:

“You ‘are instructed that, if you find from the evidence that Hugh Mixon was the agent of the defendant insurance company, and that he informed the plaintiff that he had canceled the policy issued by the Home Fire Insurance Company of New York, and had placed a policy for a like amount in the Home Insurance Company of Pordyce, then you are instructed that the defendant would be bound by such statement, and you should find for the plaintiff.”

It is said that this instruction .is erroneous, because the agent had no such authority, but it will be seen from what we have already .said that he did have this authority. And it is further said that it is in conflict with instruction No. 6, given at appellant’s request. Instruction No. 6 simply was the converse of No. 1. It told the jury that, if they found the policy in the Home Insurance Company of New York had not «been canceled at the time the fire occurred, the judgment should be for the defendant. The instructions are not in conflict, and were correct declarations of law.

We find no error, and the judgment is affirmed.


text:
    Bryan v. Akers.
    Opinion delivered June 18, 1928.

      C. P. Harmuell, for appellant.

      Jay M. Rowland, for appellee.'
   McHaNey, J.

On June 19, 1927, appellant’s Essex automobile was stolen in Little Book and, a few days later, the police department of Little Bock was notified by .appellee, a private detective of Hot Springs, that he had located the car, and wanted to know if there was- a reward offered. He was advised that no reward was offered, and there was no theft insurance on the car. Akers found out that the car belonged to Bryan, and, on June 29, had the car hauled in from some distance out of Hot Springs and put in his hack yard, in the city. On the night of June 29 he called up Bryan, and, according to Akers, told him he had found his car, that it was nine miles out in the country, and that Bryan told him to get the car and bring it in., According to Bryan, he did not ask him to get the car, but that Akers told him he already had the car, and that if he wanted it to come and get it. Bryan went to Hot Springs the next day, paid all telephone calls and the charges made by the Bed Ball Garage for towing the car in, ¡but refused to pay Akers anything for the recovery of the car.' It appears that Akers was a deputy sheriff at the time. Akers refused to surrender the oar until the ‘bill was paid, and appellant instituted replevin in the municipal court, gave bond, and secured an order of délivery. Aliens filed a cross-bond, and retained possession of the car. In the meantime Akers stored the car in the National Park Garage, C. Floyd Huff, Jr., proprietor, where it remained until the order of the circuit court releasing it, November 25,1927. This replevin suit was dismissed by the municipal court on July 16, and an appeal taken to the circuit court, where judgment was rendered against appellant in favor of the National Park Garage and 0. Floyd Huff, Jr., for storage on the car in the sum of $35, and to Akers $24.40 for expenses and services performed in securing the return of said automobile. Possession of the oar was awarded to appellant by the circuit court upon the payment of the above sums. He deposited a cash bond in the sum of $200, and took his appeal to this court.

We think the circuit court erred in so far as it rendered judgment in favor of the National Park Garage or Akers. The National Park Garage is not a party to this action, did not intervene or file any claim asking judgment for storage, and the court therefore had no jurisdiction to render judgment against appellant in favor of a person not claiming it; but, even if it bad filed an intervention, appellant would not have been liable, as appellee bad no right to retain possession of said car, demanding compensation for his services in securing the car. He testified himself that he was a deputy sheriff, a commissioned officer, and he therefore had no authority in law to make a charge for his personal services in securing the car. It is not disputed that appellant paid all charges, including telephone bills, which were rather extravagant, in connection with the ear. He made no contract with appellee, and, under the circumstances, the law implies none. If there is any liability against any one for the storage of the car in the National' Park Garage, it is the liability of appellee, as he gave the cross-bond in retaining possession of the car, and stored it on his own motion in the National Park Garage.

Appellant claimed damages in the sum of $100 for the wrongful detention of his car, but he made no proof of the amount of damages he was entitled to, or, if so, he did not abstract it.

The judgment of the circuit court will therefore be affirmed in so far as it awarded possession of the automobile to appellant, and will be reversed and dismissed in all other particulars. •


author: Hart, C. J.,

text:
    A. J. Chestnut Company v. Hargrave.
    Opinion delivered June 25, 1928.

      Wooldridge & Wooldridge, for appellant.

      John T. Cheairs and Williamson & Williamson, for appellee.
   Hart, C. J.,

(after stating the facts). Counsel for the respective parties recognize the rule laid down in Clark v. Wilson, 171 Ark. 323, 284 S. W. 23, to the effect that one who purchases lumber for a valuable consideration, in good faith, and without knowledge of liens existing- thereon under the statute, is to be protected.

Counsel for appellant seek to reverse the judgment on the ground that there is no testimony in the record from which the circuit court might have found that appellant purchased the staves without any notice of the claims of appellees for liens. On the other hand, counsel for appellees -seek to uphold the judgment on the ground that the evidence was sufficient to constitute notice to appellant. In making this contention, they rely upon the fact that Huggins was the general agent of appellant, or that at least he had apparent authority to act for appellant, and that knowledg*e to him was therefore knowledge to appellant. The rule in this State is that a principal is bound by all that is done by his agent within the apparent scope of his authority, and the authority given to and exercised by Huggins carried Avith it the apparent power to act for appellant in all matters connected with the operation of its lumber yards. In short, the general rule in this State is that the principal is bound by the acts of his agent Avhich are within the real or apparent scope of his authority. Security Life Ins. Co. of America v. Bates, 144 Ark. 345, 222 S. W. 740; Battle v. Draper, 149 Ark. 55, 231 S. W. 869; Bartlett v. Yochum, 155 Ark. 626, 245 S. W. 27; Ozark Mutual Life Association v. Dillard, 169 Ark, 136, 273 S. W. 378; and General Motors Acceptance Corporation v. Salter, 172 Ark. 691, 290 S. W. 584.

Tested by this rule, we think that the circuit court might find that the appellant was not an innocent purchaser of the lumber. It is true that the evidence for appellant tended to shoAV that the authority of Huggins was confined to inspecting lumber and shipping it upon orders given to him from the home office at Memphis. Be that as it may, the facts show that he at least had apparent authority'in the premises. Appellant had three lumber yards in the same territory in the State of Arkansas. One. of .these-was at "Winchester, where the lumber in question ivas received and inspected. Huggins bad charge of all three of these lumber yards. He received and inspected all the lumber brought there. He attended to the shipping of all lumber from all of these yards. It is true that, according to the evidence for.appellant, the lumber was shipped out upon order from the home office at Memphis, but all the shipping- was done by Huggins, and all the lumber was received in each of these yards by him. In fact, he alone had charge of the yards. It is admitted that he had notice of the existence of the liens of appellees, and, under these circumstances, we think the circuit court was justified in finding as a fact that his notice was notice to appellant.

It follows that the judgment will be affirmed


text:
    Nowlin v. Noteware.
    Opinion delivered June 25, 1928.

      T. E. Helm and A. W. Taylor, for appellant.

      F. L. Brown and T. N. Robertson, for appellee.
   Hart, C. J.,

(after stating the facts). Counsel for appellant seek to reverse the decree on the theory that the letters “0, K.’’before the signature of E. C. Nowlin render the contract ambiguous and let in oral proof of the contract between Noteware and Nowlin. In that contention we think counsel are correct.

In Penn Tobacco Company v. Leman, 109 Ga. 428, 34 S. E. 678, the Supreme Court of Georgia held, quoting syllabus : “A petition alleging that the letters ‘O. K.’ written on an order for goods, and followed by the signature of the person writing them, 'constituted a contract on the part of such person to pay for the goods in the event the persons sending the order failed or refused to pay at maturity, set forth a cause of action. These letters being ambiguous, their meaning may be explained by parol evidence. ’ ’ The court said that the letters “ O. K. ” before the signature of the defendant rendered the contract ambiguous, and therefore parol evidence would be heard to explain the patent ambiguity appearing upon the paper. In that case it was alleged that the parties had agreed that payment of the account at maturity would be made by the defendant in case the purchaser failed to pay the same. In other words, it was held that parol evidence was admissible to show what the parties had really agreed to, because all of the contract had not been expressed in writing. The letters “O. K.” rendered the written contract ambiguous and let in parol proof as to what the parties meant 'by inserting these letters before the signature of the defendant.

It is true that the letters “0. K.” have a very definite dictionary meaning, which is “all right; correct;” but the connection in which the letters are used must be taken into consideration. When this is done, we think that the letters “0. K.” before the signature of Nowlin rendered the contract ambiguous, and that the significance of these letters should be interpreted in the light of the facts as they appear in the record, with the sole object in view of ascertaining the intention of the party or parties using them. If Nowlin had intended signing the contract as one of the builders, there would have been no sense in having the letters “0. K.’’.before his signature. His assent ’was simply to the form of the contract, and no further. The contract being ambiguous by the use of the letters, it was competent for the parties by parol proof to show what the real contract between Nowlin and Noteware was. Humphreys v. Sorrens, 33 Wash. 563, 74 Pac. 690.

This brings us to a consideration of the case on its merits. Here we find the testimony of the parties in irreconcilable conflict as to what was the intention of Nowlin in signing the contract with the letters “0. K.” before his signature. On the one hand, Noteware testified that Nowlin signed the contract for the purpose of guaranteeing that Yeazey would execute it. On the other hand, both Nowlin and Yeazey testified that Nowlin was not in any sense bound for the performance of the contract, and only signed it for the purpose of enabling Noteware to finance the building of the houses until they were partly completed and he could secure a loan upon them. The record shows that no loan could be secured until after the roof was on a house. Nowlin was a dealer in lumber and other building material, and, by financing the contract, had an opportunity to sell bis materials. This induced him to sign the contract with the 'letters “O. K.” before his signature, and he was not in any sense bound ¡by any of the terms of the contract of construction between Noteware and Veazey. In this view of the matter, the chancellor erred in dismissing the defendant’s cross-complaint; for the evidence in his behalf shows that he filed a lien for materials furnished within the statutory period and that the materials were actually used in the construction of the houses.

Therefore the decree will be reversed, and the cause will be remanded with directions to the chancery court to enter a decree in favor of Nowlin for the amount of material furnished by him in constructing" the houses, as shown by the record in this case, and for further proceedings in accordance with the principles of equity. It is so ordered.


text:
    Order of Railway Conductors of America v. Bandy.
    Opinion delivered June 25, 1928.

      Block & Kirsch, for appellant.

      Jeff Bratton and Cooley, Adams & Ruhr, for appellee.
   Hart, C. J.,

(after .stating the facts). The office of the writ of prohibition is to restrain an inferior tribunal from proceeding in a matter not within its jurisdiction; but it is never granted unless the inferior tribunal has clearly exceeded its authority and the party applying for it has no other protection against the wrong that shall be done by such usurpation. Russell v. Jacoway, 33 Ark. 191; Monette Road Improvement District v. Dudley, 144 Ark. 169, 222 S. W. 59; and Dist. No. 21 United Mine Workers of America v. Bourland, 169 Ark. 796, 277 S. W. 546. The rule announced in these cases is that the writ of prohibition is an appropriate remedy to restrain the exercise of jurisdiction by an inferior court over a subject-matter when it has none and over parties where it can acquire none.

Where the court has'jurisdiction over the subject-matter, and the question of its jurisdiction of the person turns upon some fact to be determined by the court, its decision that it has .jurisdiction, if wrong, is an error, and prohibition is not the proper remedy. Works on Courts and Jurisdiction, page >634. But that condition is not the status here. The question of jurisdiction in the case at bar does not turn upon the sufficiency or .insufficiency of the service of process, and the fact that the circuit court held it to be sufficient does not avail. A different rule prevails where there is an entire want of service or where, upon the face of the record, it is shown that there was no service and that none could be acquired. In the case at bar the jurisdiction or lack of jurisdiction of the circuit court did not depend upon facts which are not made a matter of record in the proceedings in that court. It appears from the face of the record in the case in the circuit court that it was not authorized to proceed, and it affirmatively appears from the face of the record that no service of process was had upon the defendants and that they did not enter their appearance.

According to the' .allegations of the complaint of the plaintiff in the circuit court, the benefit certificate or policy sued on was issued, delivered and payment was required at’ the home office of the insurance company in the State of Iowa. There is no ¡showing whatever that the insurance company did any business in the State of Arkansas or that it had any property here which could be impounded by the court in an action against it. Service was attempted to be had upon it by service of summons upon the Insurance 'Commissioner, under our statute authorizing such service. It is obvious, however, that such service could hot be had upon nonresidents, whether persons or corporations, who did not do any business in this State. If such were the law, a person could make a contract of insurance with either a person or corporation in any ¡State of the United States and then, by simply removing to this State, could acquire jurisdiction ever such person or corporation, whether it had any property in this State or did any business in this State or not; and this would extend the jurisdiction of our courts beyond the territorial limits of the State, which every one would concede could not be done. In the very nature of the case, courts of the various States can only exercise jurisdiction over persons and property within the territorial limits of the State. Nonresidents can only be sued where they have entered the. State of Arkansas for the purpose of doing business here, or have acquired property in the State which may be impounded in a proper action. No such state of affairs exists in the present case. As we have already seen, the policy was issued, delivered and made payable at the office of the insurer in the State of Iowa, and there is nothing whatever in the record tending to show that it has any property or has attempted to do any business in the State of Arkansas.

If it had proceeded further in the matter, this court, upon appeal, would have quashed the service of summons; but such action on the part of the defendants would have entered their appearance to the action. In an unbroken line of decisions this court has held that a party appealing from an order denying a motion to quash service of summons will be treated as in court, although the service is held invalid. Moreover, the appearance is general, and the defendant, by appealing, becomes a party to the proceeding, and must follow the case to its conclusion or take the consequences. Murphy v. Williams, 1 Ark. 376; Hodges v. Fraser, 31 Ark. 58; Benjamin v. Birmingham, 50 Ark. 433, 8 S. W. 183; Waggoner v. Fogleman, 53 Ark. 181, 13 S. W. 729 ; Southern B. & L. Assn. v. Hallum, 59 Ark. 583, 28 S. W. 420; Ark. Coal, etc. Co. v. Haley, 62 Ark. 144, 34 S. W. 545; Beal-Doyle Dry Goods Co. v. Odd Fellows Building Co., 109 Ark. 77, 158 S. W. 955; and Duncan Lumber Co. v. Blalock, 171 Ark. 397, 284 S. W. 15, and cases cited.

The theory of these cases is that the defendant recognizes the case as being in court, with jurisdiction over the parties, by appealing. The reason underlying the doctrine is that no appeal could be taken by a party unless the court acquired jurisdiction over his person, and he necessarily assumes the attitude that such jurisdiction had been acquired when he appeals, and, having taken that position, he is bound thereby and will not be heard afterwards to say otherwise. And, if the defendants had appealed from the order of the court refusing- to quash the service of summons on them, they would have become parties to the action, and must have followed the suit to the end.

In this view of the matter, it will he readily seen that the defendants had no adequate relief in the circuit court, and the face of the record in the circuit court shows that it was about to exercise judicial power over persons who had never been served with process and over whom no service of process could be had, and who absolutely refused to enter their appearance to the action. A case directly in point is People v. Judge of the Wayne Circuit Court, 26 Mich. 100. In that case there was a motion for prohibition. The record shows that a summons from the Wayne Circuit Court was issued against a nonresident of the State who was not found in the State. In a per curiam, opinion it was said:

“The Wayne Circuit Court acquired no jurisdiction of the case. To give jurisdiction for the purpose of supporting the garnishee proceeding’s, it is necessary that some sort of service as to the principal defendant should be made within the county, either upon the person or upon the property or credits. Merely taking out a summons, which is never served, is not enough. The statute which authorizes the service of notice out of the State, presupposes that some sort of service has been made in the county, giving the court jurisdiction; and the notice is required for the purpose of fairness, and to preclude secret and collusive proceedings.”

We are of the opinion that it appears from the face of the record that the circuit court was about to proceed in a case where it had no jurisdiction over the persons of the defendants, and could acquire none. The writ of prohibition asked for will be granted, and the clerk is directed to issue the writ restraining or prohibiting the circuit court from proceeding further in the case. It is so ordered.


author: Mehafey, J.

text:
    Falls v. Driver.
    Opinion delivered May 14, 1928.

      A. F. Barham, and J. F. Gautney, for appellant.

      J. T. Goston, for appellee.
   Mehafey, J.

Appellants filed in the chancery court of Mississippi County, Arkansas, Osceola District, a complaint seeking to foreclose á mortgage or deed of' trust executed by William Walter Driver on April 12, 1921, to E. F. Falls and others, trustees for J. T. Fargason & Company and other creditors of William Walter Driver, and among other property included -in the mortgage was an undivided one-seventh interest inherited by William Walter Driver from his mother, Mrs. S. L. Driver, in and to lands described in plaintiffs’ complaint. Thereafter Abner Driver, administrator of the S. L. Driver estate, filed an'intervention claiming lands described in plaintiff’s complaint as the one-seventh.interest in the S. L. Driver estate, stating that the total value of the estate would not exceed $126,000, and that W. W. Driver is entitled to an undivided one-seventh interest; that W. W. Driver is indebted to the said S. L. Driver estate in the sum of $42,140.71, which indebtedness was incurred prior to the execution of the trust agreement set out in plaintiff’s complaint, and that the same is now due and unpaid; that the administrator of the S. L. Driver estate never became a party to nor agreed to the trust agreement, but has always refused to agree to said trust agreement and refused to release any lien or claim against Driver that the estate might have on any part or share of said estate belonging to said W. W. Driver; that the indebtedness of W. W. Driver was incurred in the lifetime of Mrs. S. L. Driver, deceased, and is a prior claim upon defendant’s one-seventh interest.

Appellants answered the intervention, and denied all the material allegations thereof, and pleaded the one-year and the two.-year statutes of limitation, and that the claim was barred by laches.

The claim of the estate against W. W. Driver consisted largely of promissory notes, the first one being dated November 1, 1909; one was dated 1910; one 1911, and three in 1912, and of checks given W. W. Driver by S. L. Driver in her lifetime. A list of the debts, together with a list of payments on notes and accounts, were introduced in evidence and the testimony of witnesses then taken, the testimony on the part of the in-terveners tending to show that Driver owed the estate the amount claimed and that the administrator of the estate was present at some of the meetings when the giving of the deed of trust or mortgage sought to be foreclosed was discussed, and it was also shown in evidence that many of the credits claimed were not indorsed on the notes, and that some of the payments were made after the notes were barred by the statute of limitations. It is unnecessary to set out the testimony in detail.

Appellants’ first contention is that the finding of the court as to the amount of the indebtedness is dearly against the weight of the evidence, and in fact without any substantial evidence to support it, and it is claimed that the testimony, instead of showing an indebtedness of $36,788.33, as found by the court, showed a balance due of only $15,894.14.

We think the testimony, if believed, justifies the finding of the chancellor. There was no testimony contradicting the statement of the witnesses, and W. W. Driver testified that he owed the amount claimed, and the auditor’s report also showed the amount claimed, and there was no testimony contradicting this. We therefore conclude that the findings of fact by the chancellor were not against the preponderance of the evidence, and, that being true, the findings of fact by the chancellor will not he disturbed.

It is next contended that the notes are barred by the statutes of limitation of one year and two. years. No other statute of limitation is pleaded. Appellants do, however, plead that the claims are stale and should be disallowed on that account.

. The evidence, without dispute, shows that these claims were made during the lifetime of Mrs. S. L. Driver and prior to the mortgage executed by W. W. Driver, and, under the evidence in this case, the claims were not barred by the statutes of limitation pleaded by the appellants. Driver himself did not plead the statute of limitation, and testified that he owed debts.

It is next contended that the interveners relied on the notes and checks being advancements to W. W. Driver, and appellants contend that, if they were not advancements, then the land descended to Driver free of any claim which the administrator of the estate of S. L. Driver may have had against W. W. Driver, and that the land is subject to the claims of the appellants, and that the sale under execution is good as against the administrator.

Appellants call attention to and rely on Wheeler & Motter Mercantile Co. v. Knox, 136 Ark. 95, 206 S. W. 46. That case quotes § 2636 of Kirby’s Digest as follows: “When any person shall die, having title to any real estate of inheritance, or personal estate, not disposed of, nor otherwise limited by marriage settlement, and shall be intestate as to such estate, it shall descend and be distributed, in parcenary, to his kindred, male and female, subject to the payment of his debts and the widow’s dower, in the following manner: First. To children, or their descendants, in equal parts. * * Attention was then called to the fact that the case of Kelly’s Heirs v. McGuire, 15 Ark. 555, held that the ef-feet of this section was to vest an absolute estate of inheritance in lands in the person who takes, subject to the indebtedness of the intestate and the rights of dower and homestead, and that this construction has been persistently followed in later cases.

We agree with this contention of the appellants. In the case of Wheeler & Motter Mercantile Co. v. Knox, supra, the court said: ‘ ‘'Sections 2650, 2651 and 2652 of Kirby’s Digest make advancements, as defined in those sections, a charge upon the heir’s interest in the intestate’s real estate. If the Legislature had intended to make an heir’s ordinary debt to his intestate a charge upon the heir’s interest in the real estate, it would have been easy to include such debts in the sections making advancements a charge. By the inclusion of one, the exclusion of the other is logically inferable. It is insisted by appellee that, notwithstanding the repeated declarations of this court that an absolute title to an intestate’s real estate descends to the heir subject to the intestate’s debts, dower, homestead rights and advancements, it descends subject also to the general indebtedness of the heir to the intestate. The case of Wilson v. Slaughter, 53 Ark. 137, 93 S. W. 515, is cited as decisive of their contention. The facts in that case are entirely different from the facts in the instant case. In that case, Edwin Jones mortgaged his lands to secure his brother John’s indebtedness. * * * In the instant case, A. S. Knox was in no sense a mortgagor of his own undivided interest in the real estate. It was not pledged in the lifetime of the intestate to secure A. S. Knox’s indebtedness. No part of the land was appropriated to the payment of A. S. Knox’s debts prior to the procurement of appellant’s judgment. ’ ’

In the instant ease there is no claim of advancement, but it is claimed that the ordinary debts of W. W. Driver to the estate of S. L. Driver was a charge on the real estate. In other words, that he took the real estate after deducting the amount of his indebtedness to the estate. This question is decided directly against appel-lee in the case last mentioned. W. W. Driver conld have mortgaged his interest in his mother’s estate to secure the payment of his debts to the estate, or he conld have conveyed it, but he conld also mortgage it to secure his other debts, and this is what he did. He executed a mortgage on this property in 1921 to trustees for the benefit of his creditors, and in December, 1924, he conveyed his interest in the property to the other heirs. If his conveyance to the heirs had 'been prior to his mortgage, it would have been a valid conveyance, because, as this court has held, the land descended, upon the death of the owner, to the heir, free of any indebtedness from the heir to the owner, as stated in the case above referred to. “In this State it is firmly established that the real estate of the intestate descends directly to the heirs upon the death of the ancestor subject to the statutory exceptions. There is no statute incumbering an heir’s interest in real estate with his indebtedness to his ancestor.” It descended to W. W. Driver free of any charge or lien. He could therefore make any disposition of it that he wished to make.

It would be useless to prolong this- opinion, because we hold that this case is controlled by the case of Wheeler & Motter Mercantile Co. v. Knox, supra.

It follows therefore that the decree on cross-appeal must be affirmed, and that the decree must be reversed on the appeal, and the cause remanded with directions for further proceedings not inconsistent with this opinion.


author: Wood, J.

text:
    Watson v. State.
    Opinion delivered June 25, 1928.

      W. II. Neal, I. 8. Simmons, J. P. Clayton and C. M. Wofford, for appellant.

      II. W. Applegate, Attorney 'General, and Barden Moose, Assistant,- for appellee.
   Wood, J.

C. J. Watson was indicted in the Crawford Circuit Court for the crime of murder in the first degree in the killing of one Jim Jackson. He was also indicted for the crime of murder in the first degree in the killing of one Henry Hamm. There was a change of venue to the Ozark District of Franklin County, where Watson was tried for killing Jim Jackson. He was convicted of murder in the second degree, and sentenced by judgment of the court to imprisonment in the State Penitentiary for a period of twenty-one years, from which judgment is this appeal.

1. On the 26th day of November, 1927, appellant filed his petition for a change of venue, in which he set up, among other things, that the sheriff of Crawford County — who would have to summon the necessary panel of jurors to try appellant — and his deputies were prejudiced against the appellant, and that the minds of the inhabitants of Crawford County were so prejudiced against him that he could not obtain a fair and impartial trial in that county. He therefore prayed “that he be granted a change of venue to some other county of this circuit most convenient to all parties and where defendant can most nearly obtain a fair and impartial trial.” On the day the petition was filed the court granted same, and ordered the cause transferred to the Ozark District of Franklin County, and set the sam<> for trial on December 13, 1927. On the '28th of November, 1927, the appellant moved the court to quash the order granting the change of venue and transferring th<* cause to the Ozark District of Franklin County. He set up in this motion that he did not know, at the time of filing his motion for a change of venue, that there would be a special term of court in the Ozark District of Franklin County on December 13, 1927; that the shooting which resulted in the deaths of Henry Hamm and Jim Jackson and in the wounding of Bird Walker, deputy sheriff of Franklin County, occurred on the line between Crawford and Franklin counties; that the sheriff of Franklin County and Bird Walker, his deputy, were in the posse which captured the appellant, and they at the time shot at and tried to kill the appellant; that the sheriff of Franklin County and his deputy were material witnesses against the appellant; that the deceased parties were reared in Franklin County and had many near relatives and close friends in that county; that the killing had been widely discussed throughout that county, and appellant believed that the minds of the inhabitants of that county were so prejudiced against him that it would he impossible for him to obtain a fair and impartial trial therein. He further set forth that the sheriff of that county and his deputies would have to summon the jurors necessary to try the appellant. Appellant alleged that he believed that the adjourned term of the Ozark District of Franklin County 'Circuit Court had been fixed in order that the appellant might be taken to the Ozark District of Franklin County for trial in case the venue was changed. Appellant therefore prayed the court to quash the order directing the change of venue to the Ozark District of Franklin County and set the cause for hearing in the Crawford Circuit Court.

The court overruled the motion of appellant to be allowed to withdraw his motion for a change of venue, and refused to annul its former order transferring the case to Franklin County. On the 13th day. of December, 1927, the appellant filed his motion to dismiss the cause for want of jurisdiction in the Franklin Circuit Court. He attached to this motion the motion he had filed in the Crawford Circuit Court asking to be permitted to withdraw the motion for a change o'f venue and that the cause be tried in the Crawford Circuit Court. He therefore prayed that the cause be dismissed in the Franklin Circuit Court and transferred back to the Crawford Circuit Court for trial. The court overruled the motion. At that adjourned term of the court there was a mistrial of the cause, and the same was continued and set for trial February 23, 19-28.

On February 23, 1928, the motion to dismiss for want of jurisdiction was renewed. ' In this motion the appellant again set up the former allegations to dismiss for want of jurisdiction, setting up that the order transferring the cause to the -Ozark District of the Franklin Circuit Court was erroneous, and, under the circumstances, did not give that court jurisdiction, and appellant prayed that the cause, for the reasons before stated, be transferred to the Crawford -Circuit Court. The motion to dismiss in the Franklin Circuit Court for alleged want of jurisdiction in that court was signed by appellant’s attorneys. The motion to dismiss the cause in the Ozark District of the Franklin Circuit -Court and to transfer the same to the Crawford Circuit Court was overruled. The appellánt duly objected and excepted to all the above rulings. Such rulings are assigned as error in appellant’s motion for a new trial, and he contends that the judgment should be reversed on account of such rulings.

The petition of appellant for change of venue was made to the court in term time, and the order of the Crawford.Circuit Court granting the prayer of the petition did not became a final order until the adjournment of the court. Wells Fargo & Co. v. Baker, 107 Ark. 415, 155 S. W. 122, and cases there cited; Spivey v. Taylor, 144 Ark. 301, 222 S. W. 57. This, rule applies to orders directing the change of venue as well as to any other order of the court. In 15 R. C. L., 688, it is said:

“All courts -of record have inherent power to vacate or set aside their judgments or orders during the term at which rendered. This is a power of daily exercise by the courts, and its existence, within proper limitation of time and propriety, cannot be questioned; it is based upon the -substantial principles of right and wrong, to be exercised for the prevention of error and injury, and for the furtherance of justice.”

Therefore the circuit court of Crawford County had not lost jurisdiction to entertain the appellant’s motion to withdraw his petition for change of venue and to annul the order directing a transfer of the case to the Franklin -Circuit Court. The petition for chang-e of venue fr-om the Crawford Circuit Court, alleging that the minds of the inhabitants of Crawford County were so prejudiced against the appellant that he could not obtain a fair and impartial trial therein, was duly verified by the appellant himself and was -supported by the affidavit of two persons. The prayer of the petition was that the change be made to some other county of the circuit “most convenient to all parties and where defendant could most nearly obtain a fair and impartial trial.” The petition for change of venue set up that certain articles exceedingly derogatory to the .appellant had been published by the press o!f Van Burén, a newspaper at Mulberry, in Crawford County, in Fort Smith papers, and the Arkansas Gazette, which were calculated to poison the minds of the inhabitants of Crawford County against the appellant. Some of these articles were attached to and made a part of the petition.

The record shows that the court, after hearing the argument of counsel and being well and sufficiently advised, sustained the motion for change of venue, and transferred the cause to the Ozark District of Franklin County, which was doubtless known by the court to be most convenient to all the parties, as set up in the prayer of the petition. Two days thereafter the appellant and his counsel changed their minds, and, after they discovered that there was an adjourned term of the Ozark District of Franklin Circuit Court to meet on December 13, 1927, they asked to withdraw the petition for change of venue and to have annulled the former order transferring the cause, and that the cause be tried by the Crawford Circuit Court. This written motion, signed by counsel for the appellant and verified by him, was not supported by the affidavit of any one else. Nor were the motions of appellant in the Franklin Circuit Court to dismiss the cause in that court and transfer the same back to the Crawford Circuit Court supported by the affidavit of two credible persons, as the statute in change of venue cases requires.

Now it occurs to us that the court did not err in its rulings. The court, at the instance of the appellant, had granted his solemn petition for change of venue, duly verified by himself and supported by the affidavit of two credible witnesses, as required by statute. Two days thereafter the court was requested by the appellant to annul this solemn judgment and let the cause be tried in the Crawford Circuit, where it originated. The affidavit of die two affiants and the newspaper publications and other circumstances that convinced the court that a fair and impartial trial could not be had in Crawford County were not changed or withdrawn. The court was justified in finding that there were no sufficient grounds stated and proved to justify the court in annulling its former order changing the venue. Changes of venue are exceedingly important orders. Petitions for same should not be presented except in the utmost good faith on the part of the defendant and counsel representing him. The court has the right to assume that the accused and his counsel have made all the necessary investigation of the circumstances as to the terms of court in other counties and as to the prejudice of the minds of the inhabitants in the county where the cause originates and as to all conditions mating a change of venue necessary, before a petition for such change is presented. Defendants can not play fast and loose with the court in the matter of petitioning for change of venue. “Statutes authorizing changes in venue are not intended to give a defendant the right to shift the venue back and forth at will, with incidental delays in trying him. Statutes authorizing change of venue are undoubtedly enacted in order to promote the ends of justice, and, unless abused, are reasonably calculated to secure that aim. A tendency has been displayed, however, to make use of the privilege of change to obstruct and delay the progress of litigation, and consequently the courts have felt impelled to lay down certain rules as to the appropriate time for seeking the removal of a cause.” 27 E. C. L., page 820, §§ 39 and 40.

If the minds of the inhabitants of Crawford County were so prejudiced against the appellant that he could not obtain a fair and impartial trial in that county, as his petition, duly verified by himself and his supporting witnesses, set 'forth, and as the court found to be the fact, there was nothing in the motion of appellant, filed two days after the petition was granted, to show that there had been any change in the condition of the minds of the inhabitants of Crawford County in that respect,.- After the cause was transferred to the Ozark District of Franklin County the appellant did not petition for a change of venue from that county to a county in the district other than Franklin and 'Crawford. Appellant’s motion to dismiss the cause for want of jurisdiction in the Franklin Circuit Court was, in effect, tantamount to another motion for a change of venue from Franklin County, hut the motion did not comply with the statute requiring petitions for change of venue to he supported by the affidavit of two credible persons. Section 3088, C. & M. Digest. It set forth that the persons whom the appellant killed were reared in the Ozark District of Franklin County, and had many relatives there, and also that appellant was indicted for an assault upon Bird Walker, a deputy sheriff of the Ozark District of Franklin County. But none of these were grounds for a change of venue. Nor was it a ground for change of venue that the sheriff of Franklin County and his deputy were prejudiced against the appellant, if that were a fact. For the statute makes ample provision for designating other officers or persons to summon jurors where a reason exists for designating other officers or persons. Section 3147, C. & M. Digest. There was no error in the ruling’s of the trial court in the matter of change of venue.

2. Appellant was on trial for the killing of Jim Jackson and Henry Hamm. Henry Hamm was the city marshal of the town of Mulberry, in Crawford County, and Jackson was assisting him at the time they were killed in attempting to arrest the appellant. Appellant, in company with his wife, had run his truck against a truck of one Jim Wood, on a bridge about a mile west of Mulberry; he had cursed Wood and shot through the front of his car. Wood reported the matter to Bruce Jackson, a deputy sheriff, and he and B,ruce Jackson, without procuring a warrant, went out to arrest the appellant. They met .appellant on his way into Mulberry in his truck.- Appellant was armed. He stopped Wood and Jackson, and cursed Wood. They went away and left him, and appellant went on to town. When appellant drove into Mulberry, be stopped bis truck within a few feet of tbe curb, and Henry Hamm stepped up to tbe car and said something' to bim. Appellant pointed bis pistol at Hamm, and commanded bim to bold up bis bands, and took Hamm’s revolver from bim, and advised bim not to follow bim when be left town going back toward Mulberry' Creek, where appellant was camped. After appellant took Hamm’s pistol, Hamm procured a double-barrel shotgun, and be and Jim Jackson followed appellant out to tbe bridge, where tbe killing occurred. Hamm and Jackson did not procure a warrant for appellant’s arrest. When they overtook tbe appellant be turned and met them. They told bim to give up, but, instead of doing so, be engaged in battle by firing at tbe officers, and they in turn fired at bim, resulting in tbe killing of Hamm and Jackson.

Without setting out in detail tbe testimony, tbe above is 'substantially tbe testimony of witnesses for tbe State to tbe shooting. Tbe appellant testified, in substance, that tbe testimony of tbe witnesses for tbe State was all false, and that be killed Hamm and Jackson in self-defense, after they bad first attacked bim without attempting to arrest bim. Tbe above sufficiently sets forth tbe testimony upon which tbe court instructed tbe jury, at tbe instance of tbe appellant, in instructions numbered A, B and F, and on its own motion F 2, as follows:

“A. You are instructed that it is tbe duty of an officer in making an arrest to inform the person about to be arrested of tbe intention to arrest bim, tbe offense charged against bim for which be is arrested, and, if acting under a warrant of arrest, to give information thereof, and, if required, to show the warrant. No unnecessary force or violence shall be used in making an arrest.

“B. You are instructed that a peace officer can only make an arrest for a misdemeanor without a warrant where tbe offense is committed in bis presence. If tbe offense is not committed in bis presence, it is necessary that a warrant be procured before tbe arrest is legal.

“F. You are instructed that in this case, if you find that the officer, Henry Hamm, assisted by Jim Jackson, went out to Little Mulberry Bridge, near Mulberry, for the purpose of arresting the defendant, C. J. Watson, on an alleged misdemeanor only, and that they attempted to make this arrest without a warrant, and if you find from the evidence that the defendant committed a misdemeanor in the presence of the officer, Henry Hamm, on the streets of Mulberry, then he had the right as an officer to pursue the defendant immediately and arrest him for said misdemeanor, but in doing so he could not shoot him or inflict any great bodily injury upon the defendant, unless it were necessary in his own self-defense.

“F 2. You are instructed that if Jim Jackson and Henry Hamm were not, at the time of the killing, acting in the capacity of officers of the law, with the right so to act, no account should be taken of the fact that they were officers, if you find they were, and that is not a circumstance to be considered by the jury, unless the officers, if they were such, had the right to act in that capacity and were so acting at the time.”

The appellant contends that the court erred in not giving his prayers for instructions numbered C, D, E, G, H, and I on the subject of arrest. We will not unduly extend this opinion by setting’ out these prayers for instructions because, after a careful consideration of same, we are convinced that such of them as were correct declarations of law were fully covered by prayers for instructions asked by the appellant, above set forth, which the court granted, and other instructions on self-defense given on the court’s own motion. The appellant contends that the jury were not told in any of these instructions that the appellant had the right to resist an illegal arrest or that the officers had no right to shoot him or to do any great bodily injury in attempting to arrest him, whether with or without a warrant. But when instruction F 2, given by the court on its own motion, is considered in connection with, the instructions given 'by the court on self-defense, which were correct, it is impossible for any prejudice to have resulted to the appellant in the ruling of the court of which he complains. The instructions given on the subject of arrest correctly declared the law as it has often been announced by this court. Roberson v. State, 53 Ark. 516, 14 S. W. 902; Johnson v. State, 100 Ark. 139, 139 S. W. 1117; see also Adams v. State, 176 Ark. 916, 5 S. W. (2d.) 946. The court ruled correctly in not repeating instructions on the same subject. Griffin v. State, 160 Ark. 166, 254 S. W. 469.

3. In addition to self-defense, the appellant also defended on the ground that, at the time of the killing, he was insane. The testimony adduced by the appellant on this issue was sufficient to warrant the court in submitting the issue to the jury. The appellant requested the court to grant certain prayers for instructions on this issue, which we deem it unnecessary to set forth, because the .court fully and correctly instructed the jury on the issue of insanity, declaring the law on this subject in conformity with the opinion of this court in Bell v. State, 120 Ark. 530, 180 S. W. 186, and as supplemented by the opinion in Hanhins v. State, 133 Ark. 38, 201 S. W. 832, L. R. A. 1918B, 784.

The instructions on the issue of insanity followed closely the law applicable to such issue as declared by this court in Bell v. State, supra. It could serve no useful purpose to reiterate the law announced in that case and in Hankins v. State, supra. The appellant objected generally to the instruction given by the court, and specifically to that part of the instruction relating to emotional and moral insanity. The appellant contends that there was no definition of emotional or moral insanity. But on examination of the instruction we find that the court in the instruction told the jury that “the fact that one’s reason is temporarily dethroned by ang-er, jealousy or any other passion, or the fact that he has become suddenly depraved to such an extent that his conscience ceases to control or influence his actions, is not a defense to criminal charge. In other words, what is commonly known as emotional or moral insanity is not a defense under the law of this State for one charged with crime.” The instruction on the proposition of emotional and moral insanity thus conformed to the law as declared 'by the court in Bell v. State, supra, and was a sufficiently explicit definition of emotional and moral insanity.

There are no reversible errors in the rulings of the trial court. The judgment therefore must he affirmed.


text:
    Dunaway v. Ragsdale.
    Opinion delivered June 25, 1928.

      Gustave Jones and J. H. Wharton, for appellant.

      Pickens '& Ridley, for appellee.
   Wood, J.

This is an action by J. Gr. Ragsdale, administrator of the estate of Roy B. Johnson, against W. N. Dunaway and the New York Life Insurance Company.

The plaintiff set up, in substance, that Roy B. Johnson died in Jackson County on April 19, 1927 ;,that the plaintiff was duly appointed administrator of his estate; that Johnson, at the time of his death, had a life insurance policy in the New York Life Insurance Company, made payable to Johnson’s estate, in the sum of $2,000; that, under the terms 'of the policy, if death resulted from natural causes the company was to pay the estate of Johnson the sum of $2,000, and, in case of accidental death, the sum of $4,000; that Johnson’s death was by drowning; that, before his death, Johnson had assigned the policy to the defendant, Dunaway, as collateral security for a debt which Johnson owed Dunaway, the amount of such debt, as plaintiff was informed, being approximately $300; that, without any authority so to do, Dunaway received and the insurance company paid the sum of $2,000 on the policy. The plaintiff prayed that the insurance company be required to file a true copy of the policy and that Dunaway be required to file and prove the amount of the indebtedness of Johnson to him, and that the plaintiff have judgment against the insurance company in the sum of $4,000 and judgment against Dunaway in the sum of $2,000, less the amount of indebtedness due from Johnson to Dunaway, and judgment for penalty and attorney’s fee as allowed by law.

Dunaway moved to dismiss on account of misjoinder of cause of action, whereupon the plaintiff dismissed the action as to the New York Life Insurance Company. Dunaway then answered, and denied that the policy had been assigned to him as collateral security, but alleged that the policy was assigned to him absolutely; that the assured, Johnson, agreed with the defendant that, in the event of the death of Johnson, all of the proceeds of the policy should be paid to Dunaway, because Johnson, at the time the policy was issued, was largely indebted to the defendant.

The cause, by agreement, was submitted to the court sitting as a jury. The plaintiff proved by the defendant that the latter collected the proceeds of the policy in the sum of $1,930. Plaintiff himself testified that, after the death of Johnson, he was appointed administrator of his estate, and had a conversation with the defendant concerning the indebtedness of Johnson to him, in which conversation the defendant stated that he did not know exactly the amount of the indebtedness, but thought that same was between two and three hundred dollars. He stated to the plaintiff that, when he ascertained the amount and collected the insurance, he would pay the difference. Witness called on him two or three times for the amount, but he refused to pay. The reason witness did not take steps to prevent Dunaway from collecting the amount of the policy was because Dunaway promised, when he collected the amount of the policy, to pay witness the difference between the amount of the policy and the indebtedness of Johnson to Dunaway.

Plaintiff, over the objection of the defendant, was permitted to introduce a letter received by the plaintiff from the insurance company, in which it was stated that the administrator of the insured did not have any claim on the policy, as it was made to Mrs. Johnson as beneficiary, and later assigned to the defendant, Dunaway, and that settlement had been made on the policy to the defendant, Dunaway. Also, over the objection of the defendant, the witness was allowed to testify that the deceased, Johnson, told witness that he (Johnson) had borrowed some money from the defendant, Dunaway, to pay the expenses of a trip to Massachusetts, and that he had put up the policy with Dunaway for that money; that he gave Dunaway an assignment of the policy as collateral security. No one was present when Johnson made the statement to the witness in regard to the assignment of the policy. The defendant duly excepted to the ruling- of the court in admitting this testimony.

Alvis Jackson, a witness for the plaintiff, testified that he was the agent of the New York Life Insurance Company, and, as such, wrote the policy on the life of Eoy Buck Johnson. Witness did not have a copy of the policy. Witness had a conversation with the defendant, Dunaway, relative to the assignment of the policy. Witness asked Dunaway about the payment of the premium. That was before Mrs. Johnson, the beneficiary in the policy, died. Dunaway stated there would be plent}7 of money left to pay the premium on the policy after he (Dunaway) got his money. He stated that he had an assignment of the policy for the money that Johnson owed him, and, over the objection of the appellant, the witness stated that Johnson, prior to his death, had told witness the same thing. The witness stated that Johnson had told him that he had made an assignment of the policy to Dunaway for money to go East.

Dunaway testified, in his own behalf, that Johnson and his wife wanted to go hack to Massachusetts, and needed some money. Witness had advanced Johnson money to keep his insurance in force, and, when Johnson went back East, he said that he would assign the policies to witness, as witness had done more for him than any of his kinfolks; that, if anything happened to him, the proceeds of the.policies were to go to witness. Witness kept the policies in force. When Johnson returned from the East, he could not pay the premiums, and stated that he would just let the insurance go' unless witness would keep it up, and told witness if he would keep the premiums paid, witness could have it all. Witness had a complete assignment of the policy on Johnson’s ’life and of the policy on the life of his wife. Johnson owed witness advances on the insurance policy in the sum of $172.50 and a furnishing account in the sum of $637.64. Johnson paid witness something like $600 and he owed witness over $1,200. Witness had a conversation with Eagsdale, after Johnson’s death, and did not remember that he had told Ragsdale that the policy was put up as collateral and that witness would pay him the balance after the indebtedness of Johnson to witness was paid out of it. Witness told Ragsdale that he had an assignment of the policy. He did not think that the question ever came up as to whether it was collateral or not.

The court found that there was a balance due the plaintiff, Ragsdale, as administrator of the estate of Johnson, from the defendant Dunaway, in the sum of $1,087.51, and rendered a judgment in favor of plaintiff in that sum, from which judgment is this appeal.

The appellant, in his answer, alleged that the policy “was assigned absolutely” to appellant. So there was no issue as to the fact of the assignment of the policy to the appellant. The only issue was whether the policy was assigned to the appellant absolutely or merely as collateral security for the indebtedness of Roy B. Johnson to the appellant. The appellant contends that the court erred in allowing appellee to prove by oral testimony that the policy was assigned to appellant as collateral security. But appellee alleged and proved that the policy was in the hands of the insurance company, and that it had been assigned to the appellant. Appel-lee alleged that he did not have copy of the policy, and asked that copy of the policy be exhibited so that it might (be used in evidence. The testimony shows that appellee could not obtain the policy or a copy thereof, but that the appellant could. This is shown by the letter of the insurance company to appellee. Under these circumstances the court did not err in allowing appellee to prove by oral testimony that the policy was assigned to appellant as collateral security.

Appellant contends that the court erred in allowing appellee to prove that Johnson told appellee that he, Johnson, assigned the policy to appellant for money “to go back to Massachusetts on.” The above testimony was not competent. Const. Sched. § 2. See also Lincoln Life Ins. Co. v. Smith, 134 Ark. 245, 203 S. W. 698; Strickland v. Strickland, 103 Ark. 183, 146 S. W. 501; Jefferson v. Souter, 150 Ark. 55, 233 S. W. 804; Parker v. Twist, 150 Ark. 448, 234 S. W. 624. But, since this was a trial before the court, we must assume that the court considered only the competent and relevant evidence. Such is the presumption. Johnson v. Spangler, 176 Ark. 328, 2 S. W. (2d.) 1089, and cases there cited. The appellant did not ask the court to state in writing the conclusions. of fact and law separately. Appellant did not ask the court to make any special findings or conclusions of fact, nor to state any conclusions of law. C. & M. Dig., § 1309. Therefore appellant is not in an attitude to insist here that the trial court’s conclusions of fact and law are erroneous, since there is competent and relevant testimony in the record to justify the findings of the court. The court announced in ruling upon appellant’s objection to incompetent testimony that “the court will only consider such testimony as is competent.” We must presume, as before stated, that the court did that. The record presents, no error. . Let the judgment be affirmed.