text:
    Taylor v. Dermott Grocery & Commission Company.
    Opinion delivered January 18, 1932.

      Gillison té Gillison, for appellant.

      John Baxter, for appellee.
   McHaney, J.

On November 15, 1930, O. F. Townsend, being indebted to appellee in the sum of $86.29 and being a depositor with a checking account in the Chicot Trust Company, drew his check on the trust company in favor of appellee and delivered same to its agent. On the same date said agent took the check to the trust company, indorsed it, asked for and received a cashier’s check payable to appellee for the same amount. This cashier’s check was never paid because the trust company was never open for business again after November 15, and was placed in appellant’s charge for liquidation on November 24. Appellee presented its claim to the chancery court for allowance as a preferred claim, which the Bank Commissioner disputed, and the matter was presented on an agreed statement of facts as above set out, and, in addition that appellee’s agent was well known to the trust company, and the Townsend check would have been cashed if desired by him, but that he elected to take the cashier’s check instead. Appellee carried no account with the trust company, its office being at Eudora, about sixteen miles from Lake Village, the home of the trust company. The claim was allowed as a preferred one, and the Bank Commissioner has appealed.

It is admitted by appellee that, unless authority for the classification of this claim as preferred is found in act 107, Acts 1927, p. 297, it is a general and not a prior

or preferred claim. Said act provides that “all creditors of a bank of which the Commissioner has taken charge are classifiable either as secured .creditors, prior creditors or general creditors.” The act then proceeds to define each class of creditors and there are seven subdivisions defining “piior creditors.” Appellee relies upon the 6th subdivision as covering its case, which is as follows: “(6) the owner of the proceeds of a collection made by said bank and not remitted by it, or of which its remittance has not been paid, when such collection was made otherwise than by honoring a check or other order upon said bank or by a charge against the account of a depositor of said bank, and the said collection has had a distinctive identity in the hands of said bank, has actually increased its cash assets, and has not resulted in merely shifting its liability upon its books from one of its creditors to another or new creditor.” Appellee’s situation fails to fit this definition in any respect. The bank made no collection for appellee. Its own agent made the collection from Townsend, presented the check to the bank and asked to and did become its creditor by taking a cashier’s check. Compare Taylor v. Corning Bank & Trust Co., 183 Ark. 757, 38 S. W. (2d) 557. Also the bank honored the check of its depositor. No new funds were deposited in the bank, but the bank simply shifted its liability from one creditor, Townsend, to another creditor, appellee. Not being a collection made by the bank, the 6th subdivision of the act has no application. Nor does any other provision of the act defining- prior creditors apply. The act further provides that “all creditors not in this section hereinabove classed as secured or prior creditors of said bank, including the State of Arkansas and any of its subdivisions, shall be general creditors thereof.” Therefore, appellee is a general creditor, and the court erred in holding otherwise.

Eeversed and remanded with directions to allow the claim as a general one.


source: Caselaw Access Project

author: McHaney, J.

license: Public Domain

text:
    Detroit Fidelity & Surety Company v. Priddy.
    Opinion delivered January 18, 1932.

      Horace Chamberlin, for appellant.

      Bohlinger $ Hollow, for appellee.
   McHaney, J.

Petitioner is a foreign corporation, organized under the laws of Michigan, engaged in the casualty, fidelity and corporate surety business, and is so engaged in this State in compliance with its laws, with a general agency in Little Rock. It has in compliance with the law designated the Insurance Commissioner of this State, domiciled in Little Rock, Pulaski County, as its agent for service of process. On June 26, 1931, Fred Burnett, Jr., filed a suit against it in the circuit court of Yell County, Arkansas, Dardanelle District, alleging that prior to October 29, 1930, petitioner became surety for the completion of State Highway Project No. 4137 in Franklin County Arkansas; that subsequent to said date it took over the work of the principal, entered upon said work, became the principal contractor and completed same; that a part of the work to be done was the painting of a line down the middle of the highway constructed; that, after painting the line and in order to deflect traffic from the freshly painted line, it caused to be placed in the highway large rocks and neglected and failed to display warning lights for the safety of the public; that while riding- along- said highway as a guest in an automobile same was wrecked by coming in contact with one of said stones, and that he received painful injuries, for which he prayed damages in the sum of $2,990. Summons was issued on said complaint and service had on the Insurance Commissioner. On these facts petitioner alleges that the respondent as judge of the Yell Circuit Court has no jurisdiction to proceed in the premises for the reason that said court has no jurisdiction of the person of the petitioner and acquired none by service outside of Yell County. It states that it is not doing any business in Yell County, and that, it has no agent therein, and that, unless prohibited by this court, the respondent will proceed, assume jurisdiction of said cause, render judgment against it, and cause it irreparable injury, all in violation of the rights guaranteed to it by § 11 of article 12 of the State Constitution, and by the 14th Amendment to the Constitution of the United States wherein the equal protection of the laws are accorded it.

The respondent entered his appearance in this court, and agreed that he would take no action in the case pending- in his court until this court passes upon this petition.

Petitioner did not appear in the Yell Circuit Court and object to the jurisdiction of the court, nor did it move to quash the service had upon it for lack of jurisdiction. The respondent, however, appears here and has filed a brief asserting his jurisdiction. The general rule is .that objection to jurisdiction must be raised in the lower court and overruled before the writ of prohibition will issue, but this rule is subject to certain exceptions. It has been held by this court that objection in the inferior court to its exercise of jurisdiction is not a jurisdictional fact upon which the power to issue the writ depends, but is discretionary and is not necessary where it would obviously be futile and would result in unnecessary or hurtful delay. Monette Road Improvement District v. Dudley, 144 Ark. 169, 222 S. W. 59. Also that where the respondent judge appears in response to the petition for prohibition and asserts jurisdiction of his court to proceed, it is unnecessary to await the making of formal objection in the court below. Nissen v. Elliott, 145 Ark. 540, 224 S. W. 958. See also State v. Martineau, 149 Ark. 237, 232 S. W. 609. We therefore follow these decisions and hold that it is unnecessary and would be futile to postpone the case for formal objection in respondent’s court to the jurisdiction, since he now appears and asserts jurisdiction of his court to proceed.

The principal question to be decided is that of the jurisdiction of the Yell Circuit Court over the person of petitioner. The applicable statute is that relating to guaranty and surety companies. Section 6132, Crawford & Moses’ Digest, provides that both domestic and foreign surety companies may transact a surety business in this State on compliance with this statute and not otherwise. Section 6133 provides: “No surety company incorporated under the authority of this State, or of any other State or foreign country shall, directly or indirectly, transact business in this State until it shall have first appointed in writing a duly authorized agent in this State to be the true and lawful agent of such company in and for the State, upon whom all lawful process in any action or proceeding against the company, which said action or proceeding may be instituted in the county in which the plaintiff resides or has its principal office if a corporation, may be served with the same effect as if the company existed in this State. Said appointment of agency shall stipulate and agree on the part of the company that any lawful process against the company which is served on said agent shall he of the same legal force and validity as if served on the company; and that the authority shall continue in force so long as liability remains outstanding against the company in this State. * * * Service upon such agent shall be deemed sufficient service upon the principal.”.

Petitioner complied with the above statute, and has named the Insurance Commissioner as its agent for service, and service was had upon such agent. Was the service good? The plaintiff in the suit below is a resident of Yell County. It will be seen that the above statute makes no discrimination between foreign and domestic surety companies. Both are treated exactly alike. Neither can do any business in this State except upon compliance with said section. It therefore appears to us that this statute does not offend against § 11 of article 12 of our Constitution which provides that foreign corporations may do business in this State under such restrictions as may be provided by law, and, among other things, “as to contracts made or business done in this State, they shall be subject to the same regulations, limitations and liabilities as like corporations of this State.” Nor does it offend against the equal protection clause of the 14th Amendment to the Constitution of the United States. Instead it provides for the equal protection of all surety companies, both domestic and foreign, and this is a proper classification, one within the power of the Legislature to make, as foreign surety companies are placed in the same class with “like corporations of this State.”

The case of Power Manufacturing Company v. Saunders, 274 U. S. 490, 47 S. W. 678, is relied upon by petitioner as supporting its contention. We think the rule announced in that case has no application here, for the reason that no discrimination is made under this statute in favor of domestic corporations. It is true that petitioner is not engaged in business in Yell County, and that the injury for which the suit was brought was received in Franklin County while petitioner was engaged in completing a highway for a person for whom it was surety. This was an incident of its surety company business. It had the authority under its contract to take over the work and complete it. In doing so, if it was guilty of negligence causing injury to another, an action thereon may be said to .grow out of its business as a surety company. The statute provides that lawful process may be had upon it “in any action or proceeding.” We are therefore of the opinion that the action was properly brought in the county of the residence of the plaintiff, and that the service had does not violate any constitutional right of petitioner. Compare Grand Court, etc., v. Carter, 184 Ark. 819, 43 S. W. 531.

The writ will be denied.


author: Butler, J.

text:
    555 Incorporated v. Leming.
    Opinion delivered January 18, 1932.

      Joe D. Shepherd and Raymond Jones, for appellant.

      Bullock & Priddy and Hays & Smallwood, for appellee.
   Butler, J.

George Leming was engaged in business in B-ussellville in tbe name of Leming Drug Company and had been handling for a number of years to a greater or less extent Atwater Kent radios both before and after the appellant became the general distributing agent for these radios in the .State of Arkansas. The contract involved in this litigation was entered into between the two on August 1, 1927, to continue to June 1| 1928, under the terms of which Leming agreed, among other things, to sell Atwater Kent radio equipment exclusively and agreed to handle, between the dates mentioned, radio speakers and furniture to the net value of $4,505. Among the provisions of the contract was one by which it was agreed that the contract might be terminated at the option of either party by written notice and when so terminated no claim for damag'es caused by the cancellation should be claimed or allowed by either party.

Pursuant to the contract, Leming purchased radio equipment from the appellant amounting, as he claimed, to about $3,000 up to December 1, 1927 and at that time he had a considerable amount of merchandise on hand unsold. No other radio equipment was purchased by Leming after December 1, and there remained a balance due on equipment already purchased the sum of $158.69. This sum not being paid the appellant brought suit to recover the same and Leming defended on the ground that the appellant had breached its contract by refusing to sell to him after December 1, 1927, and by selling to a local competitor, resulting in damage to him in a sum greatly in excess of the balance due appellant for merchandise purchased, and prayed judgment against the appellant for the amount of damage in excess of the balance due. '-On a trial of the case Leming recovered judgment on his cross-complaint, from which judgment is this appeal.

It is first contended by the appellant that it was entitled to a directed verdict in the amount sued for because, as it claims, the undisputed evidence shows that Leming had breached the contract by handling other radio equipment than Atwater Kent in violation of his contract before it refused to make further sales to him and before it sold Atwater Kent radios to others in Russellville. The evidence on the part of appellant was to the effect that one Johnson, its travelling salesman, visited the store of Leming about December 1, 1927, for the purpose of soliciting an order for radios under the contract and was told by Leming that he would not buy any more and gave as a reason that he (Leming) could not sell them; that at this time Johnson discovered that Leming had in stock nine radios that were not Atwater Kents but which were known as Radiolas. Leming testified that at the time Johnson made the visit he had one Radiola on the floor — not over two — that these had been bought as special orders for customers who wanted electric radios and did not want the Atwater Kent, which at that time was a battery radio; that this happened before the appellant sold its radios to a competitor of Leming and before it refused to make further sales to him. Leming further testified, however, that these were the only Radiolas ever handled by him and that before purchasing these he called the manager of the appellant company telling him of the order and asking if they had any electric radios; that he was informed that the appellant did not handle any such and that they were not worth a damn, and it was then only that he bought the Radiolas; that he did not handle them regularly but purchased these for two customers who would not buy Atwater Kents and who wanted Radiolas; that Johnson was mistaken about seeing nine Radiolas in his stock. It is to be inferred from his testimony that those seen by Johnson were the ones ordered specially and that there was not more than one — perhaps two — -in his store at the time, and that he did not refuse to purchase from Johnson on that occasion, but that Johnson turned and .went out of the store when he saw the Radiolas. There was no written notice given by appellant that it had elected to cancel the contract.

We think the circumstances presented a question of fact for the jury as to whether or not the conduct of Leming- was a breach of his agreement to handle Atwater Kent radio equipment exclusively within the spirit of the contract. The appellant was entitled to have that question submitted to the jury, and this was embodied in instruction No. 7 requested by the appellant and refused by the court. Instruction No. 7 is as follows: ‘ ‘ The jury are instructed that if you find that the contract involved in this case contained a provision that the defendant would not handle any radios other than Atwater Kent and that the defendant, in violation of such provision, handled other radios, he must be chargeable with a breach of the contract in question and cannot recover on his cross-complaint without you find from a preponderance of the testimony that the plaintiff first breached the contract.” It is argued by the appellee that the oral instructions given by the court, to which no exceptions were saved, covered every phase of the case and the one presented by instruction No. 7, swgra. We have carefully examined the instructions given by the court and are unable to agree with the appellee that instruction No. 7 was covered by the instructions given and conclude that the refusal of the court to give instruction No. 7 was prejudicial error on account of which the judgment of the court below must be reversed.

■Since there must be a new trial of this case, we call attention to the instruction given by the court on the measure of damages which we think is erroneous. At the close of oral instruction No. 2 given by the court, the following language is used: “If you find that the plaintiff breached the contract and the defendant was damaged, the measure of damages, or the items that go to make up the damage, or the things you may consider in arriving at the damages, are the amounts that the defendant expended in building up the trade in advertising, hiring of help and the other things, if any, that has been charged and proved by the testimony, and the reasonable profits that he would have made had the contract continued in by both parties. ’? In testifying regarding his damage, Leming stated that he had been dealing with appellant since 1924, and that Mark West had been handling the radios for him; that West was a good radio man, and that he paid him $125 a month; that after the execution of the contract of August 1, 19'27, he paid $32 for a mailing list and introduced a receipted account of the newspaper for advertising from September 30, 1927, to December 1, following for $99.25, and stated that the majority of this was for advertising Atwater Kent radios that December is the best month for the sale of radios on account of the Christmas trade and that he had estimated his damage at $950 for money expended in advertising and for loss of profits.

We think the language used, “hiring of help, and the other things, if any, that has been charged and proved by the testimony and the reasonable profits that he would have made,” is vague and gave the jury no proper rule but allowed them to indulge in speculation. It is well settled that, before recovery may be had for prospective profits, the evidence should be such as to establish the amount of profits expected with a reasonable degree of certainty and a mere estimate that so much profit would have been made, without facts shown upon which that estimate, is based is not sufficient. S. W. Tel. etc., Co. v. Memphis Tel. Co., 111 Ark. 474; Johnson v. Inman, 134 Ark. 345; Marvel Light, etc., Co. v. Gen. Electric Co., 162 Ark. 467.

Justices Smith, Kirby and MoHan'ey do not agree with the conclusions herein stated, but are of the opinion that the evidence, fairly interpreted, discloses a proved state of case from which it follows as a matter of law that the contract was breached by the appellee in handling one or more Radiolas, and that the judgment should be reversed, and judgment entered here for the balance due on account about which there is no dispute. From the views entertained by the majority, however, it follows that the judgment must be reversed, and the cause remanded for a new trial. It is so ordered.


text:
    Morris v. Lessel.
    Opinion delivered January 25, 1932.

      George E. Morris, for appellant.

      Albert G. Sexton and Claude V. Holloway, for appellee.
   McHaney, J.

Appellants and appellee entered into an oral agreement for the handling of cattle in February, 1930, by which appellants were to furnish money to buy cattle and the pasture land for grazing and fattening the cattle on, and appellee was to buy them, put them on the pasture, butcher and sell them as beef on the local market, all at his own expense, and turn the sale price over to appellants, until they were refunded the money paid out for cattle. Thereafter the sales were to be divided equally, and, on a termination of the agreement, no definite time for which being agreed upon, appellants and appellee were to divide the property on hand equally. Acting under this agreement, appellee purchased with funds supplied by appellants some sixty odd cattle, put them on the pasture, fattened, butchered and sold a sufficient amount by November, 1930, to repay appellants all the funds advanced and a small sum in addition thereto. A disagreement arose between them, because of an order appellants gave their agent not to let appellee butcher any more cattle or to remove same from the pasture without an order from them. Thereupon appellee demanded his half of the remaining cattle, which was refused, and this suit followed. A receiver was appointed to take charge of the property, which was by consent ordered sold, and the proceeds deposited in the registry of the court. On a trial the court found that the contract between them was a partnership contract, and that each was entitled to one-half the proceeds of sales including hides, after appellants had been paid the sum advanced, and that each party was entitled to one-half the proceeds of the sale of the remaining cattle which the receiver was ordered to make, each party to pay one-half the costs in that court. Decree was accordingly entered.

For a reversal of the judgment, appellants first insist that the agreement did not constitute a partnership, but only a working agreement or employment of appellee by them, under the decisions of this court in Rector v. Robbins, 74 Ark. 437, 86 S. W. 667, and Kent v. State, 143 Ark. 439, 220 S. W. 814. We think it unnecessary to determine this question, as we are of the opinion that the case was correctly decided by the trial court, whether they were partners or not. All the parties agree that the above-mentioned agreement was entered into, and no time was fixed for the termination thereof. They did operate under it for about ten months during which time appellants were paid back all their investment in money. Thereafter each party had and owned a half interest in the property, and either could terminate the agreement on reasonable notice to the other and divide the remaining property. Whether the -venture turned out to be profitable or otherwise is of no concern to the courts. Nor does it matter who first broke the contract, as either had the right to terminate it at any time.

In this view of the matter, it becomes unnecessary to determine whether the contract was one of partnership or employment, as in either case appellee is entitled to one-half the funds in the registry of the court.

Affirmed, with costs to appellee in this court.


text:
    Huff v. Hot Springs Savings, Trust and Guaranty Company.
    Opinion delivered January 25, 1932.

      G. Floyd Huff, for appellant.

      George P. Whittington, for appellee.
   Butler, J.

This case is presented on the record made in the probate court and in the circuit court' on appeal, from which it appears that the Hot Springs Savings Trust & Guaranty Company was named as executor under the last will and testament of Miss Blanche Bell, who died prior to the 21st day of June, 1926, and that said company qualified and proceeded to act as such executor. At some time after the company began to function as executor, its attorney was informed by C. Floyd Huff, an .attorney of Hot Springs, that he had in his possession some jewelry of the estimated value of $691, as the agent of Margaret Huff, wife of C. Floyd Huff, Jr., which property had been given her by the testatrix in her lifetime; that the inheritance tax on this property would amount to $40, which Huff offered to give to the executor for use in the settlement of the inheritance tax due by the estate. Shortly after this a petition was filed in the probate court by the executor alleging that, after the filing by it of an inventory of the assets of the estate, it learned that C. Floyd Huff had in his possession certain property which was listed in the petition, and alleging that by' the terms of the will all of the jewels belonging to the testatrix were bequeathed to Blanche Bell Washington and Edith Bell Alcorn. The petition further alleged that, from the estimated value of the property, an inheritance tax would be due the State amounting to $40, which sum the said Huff had tendered to the executor for payment to the State, but that he had refused to deliver the property to the executor. The prayer was for a citation upon the said Huff requiring him to submit himself to examination with respect to the possession, ownership and value of the property in question. This petition was filed on the 22d day of June, 1926, and the citation accordingly issued.

No further action was taken or pleading filed until the 25th day of May, 1927, when there was filed in said court the answer of C. Floyd Huff to the petition for citation, in which, among other things, he recited the facts heretofore stated with reference to the possession of the jewelry and alleged that he was in possession of the articles named in the petition which articles had been delivered to him by Margaret Huff in the lifetime of the testatrix, and that the said Margaret Huff was the owner of said jewelry, the circumstances on which her claim of ownership was based being set out in detail in the said answer. It was also alleged that the estate was making no claim to the jewelry, as under the terms of the will all of the jewelry of the executrix was bequeathed to the before-named legatees who were claiming ownership of the same and were the real parties in interest.

Thereafter a petition was filed in the name of the said legatees in which the jewelry was described in detail, and, as in the petition first filed by the executor, that the allegation that the jewelry was in the possession of Margaret Huff who was concealing the same and refusing to deliver it to the executor. There was a prayer for a citation against Margaret Huff requiring her to appear in court and for an order requiring her to deliver the said property to the executor. This citation was duly served on Margaret Huff on the 31st day of May, 1927. It seems that Margaret Huff filed no written response to this petition, but on the 7th day of June, 1927, as shown by the order and judgment of the probate court, she appeared therein in person and by her attorney. The record recites that the executor also appeared by its president and attorney, and “this cause is submitted to the court on the original citation issued herein against the said Margaret Huff, the answer of the said Margaret Huff thereto in which she claims ownership of the personal property involved, oral testimony taken in open court, and the argument of counsel,” etc. The order further recited the description of the jewelry and found “that it was the property of the testatrix prior to her death and is claimed by Margaret Huff as a gift from the deceased during her lifetime, and that there is no evidence submitted to the court to sustain the alleged gift except the testimony of the said Margaret Huff who claims the same, and that the said Margaret Huff is not a competent witness, being prohibited under the Constitution of the State of Arkansas from testifying,' and the alleged gift has not been established by legal evidence.” The court thereupon adjudged “that the claim of the said Margaret Huff to the aforementioned personal property is denied, that said personal property is a part of the assets of the estate of the deceased, and the said Margaret Huff be, and she is hereby, ordered to deliver the said personal property to the executor,” etc. In the same order is a recital that “Margaret Huff filed her motion and affidavit for appeal to the Garland Circuit Court, and the appeal is granted.”

On June 28, following, C. Floyd Huff and Margaret Huff filed their motion in the court to set aside its findings and order of June 7, 1927, directing that respondents then deliver possession of the jewelry to the executor, and as ground for the motion alleged “that this court was without jurisdiction to try the issue raised by the pleadings in this case as to the ownership of the articles in dispute, and that this court was without jurisdiction to make any order or render any judgment finding the ownership of the articles involved in this controversy.” No further action was taken by the court or any of the parties to the proceeding until the 12th day of July, 1927, when the exceptions of the legatees were filed to the final account of the executor, in which they excepted to the approval of the account and the closing of the estate, assigning as a reason that the executor had not collected all of the estate left by the deceased, and that “there is now a claim of one Margaret Huff against the estate which has not been finally disposed of,” etc.

The record discloses no further action ¡by the court or parties to the proceeding until August 6, 1929, when the legatees filed a petition reciting the order of the court of June 7, 1927, and alleging that no appeal was taken from said order within the time prescribed by law, and that Margaret Huff had failed and refused to deliver the personal property to the executor, and that the petitioners (legatees) under the terms .of the will were entitled to receive the property in her possession, and they prayed for an order citing Margaret Huff and C. Floyd Huff, Sr., to appear in court and show'cause why they should not deliver the personal property to the executor or be adjudged in contempt for failure to' do so. Following this petition appears the indorsement • of the judge of the court directing Margaret Huff to comply with the order of the court of June 7, 1927, and to deliver the personal property mentioned in said order to the executor, and upon this order a writ was issued under the hand and seal of the clerk of the court addressed to C. Floyd Huff, Sr., reciting the order made as of the 13th day of August, 1929, and directing him to deliver to the executor the jewelry in controversy. On this order was indorsed service made on the person named on August 13, 1929.

No action of the court appears to have been taken on the motion to set aside the judgment of June 7, 1927, filed June 22, 1927, until August 6, 1929, when a memorandum was entered on the docket of the judge of the probate court in which said motion was denied, but this order seems never to have been entered at length on the record of the probate court. On August 6, 1929, Margaret Huff and C. Floyd Huff filed “motion, prayer and affidavit for appeal” in which they prayed an appeal from the order of the court overruling their motion to set aside the order and judgment of June 7, 1927, and also from an order of the court of August 6, 1929, directing the respondent, Margaret Huff, to deliver to the executor the jewelry in controversy. The affidavit was made by C. Floyd Huff, and the appeal was lodged, in the circuit court on September 21, 1929. Some other orders appear to have been made in the probate court which are not mentioned in the above recital, as they seem to be duplication of orders already made.

On June 20, 1931, the matter being reached on the call of the docket in the circuit court, a motion was filed to dismiss the appeal, and at the hearing the court found in substance the facts as above recited and dismissed the appeal as prayed “for the reason that the appeal from the original order and judgment of the probate court was not lodged and perfected in the time provided by law, and that said appeal be, and the same is hereby, dismissed, and that the said Margaret Huff and the said C. Floyd Huff be, aud they are hereby, ordered and directed to carry out the judgment of the probate court and deliver to the Hot Springs Savings Trust & Guaranty Company, executor of the estate of Blanche Bell, deceased, the subject-matter of this suit, etc.,” from ■which order the Huffs have appealed to this court.

It will be seen from: the dates of the various pleading's and orders hereinbefore recited that the cause was prosecuted with but little diligence by either party in the probate court, but, for some reason unknown to us, was suffered to drag along for more than two years. It is clear, however, that from the time of the response of C. Floyd Huff to the citation first issued there was a controversy as to the ownership of the jewelry, and there seems never to have been any real reason for his being cited to show what property was in his possession as he had already disclosed that fact, of which the executor was well aware at the time.of the filing of the original petition. So, from the first there was but a controversy between C. Floyd Huff and Margaret Huff on the one hand and the executor and legatees on the other as to who was the owner of the jewels which Margaret Huff alleged were her property by reason of a gift to her made by the testatrix in her lifetime. The probate court, therefore, had no jurisdiction of the subject-matter or to hear and determine this controversy, and its order made on June 7, 1927, was coram non judiee and void, as were also all the orders made subsequent thereto in furtherance of, and based upon, the order first made.

The case of Moss v. Sandefur, 15 Ark. 381, began in. the probate court by the filing by the executor of a petition alleging that Moss had in his possession and had concealed money belonging to the estate of his decedent and prayed for a discovery by Moss of the property in his possession. Moss answered admitting that he had in his possession a certain sum of money for safekeeping- which he then held for the use of any one to whom it might belong, but denied that it belonged to, oi' was owned by, the decedent at the time of his death. On the hearing the probate court found that the money belonged to the estate of the decedent and adjudged that the executor recover from Moss the said sum. In that case the court found that by the statutes and Constitution then in force probate courts were clothed with authority to compel the attendance of persons charged with concealing or embezzling any effects of the estate of a deceased person and to force them to make discovery on oath, and to order their delivery to the executor or administrator entitled to receive the same. The court held that these provisions were salutary, but could not be extended so as to turn “into probate courts from their accustomed channels a great stream of litigation touching’ contested rights to personal chattel's, which these courts from their Constitution are so little calculated to sustain.” In summing up the facts in the case, the court said: “In the case before us, the discovery that was required shows the money in question to be in such an equivocal attitude as to be reasonably a subject of litigation between the executor or administrator or distributees of James Moss, deceased, predicated upon the ownership of the slave, who deposited it, for safekeeping, in the hands of the respondent, and the executor of Dunn, who claims that it had been derived from his testator in his lifetime, or had been abstracted from his estate since his .death, in some manner that did not divest his right to it. The case then, shown by the discovery, was not of either class to which the authority of the probate court to make, the order of delivery, extended.”

The case of Fancher v. Kenner, 110 Ark. 117, 161 S. W. 166, was a case in which the executor alleged the possession of another of money and personal property belonging to the estate of the testator which was concealed’ and withheld from the petitioner and with the prayer that discovery be made of the property belonging to the estate and that it be required to be delivered to the executor. The person in possession of the property claimed that the same had been given to him by his mother, the executor’s testatrix, and on a trial in the probate court the court found under the facts that the property belonged" to the estate. There was an appeal to the circuit court where without objection the cause was submitted to a jury, and the verdict was in favor of the person in possession as to all the articles claimed except one, and as to that the verdict was in favor of the executor. The court rendered judgment responsive to the verdict and assessed each litigant with one-half the costs. On appeal this court said: £ £ This court, in passing upon the provisions of the Revised Statutes, in Moss v. Sandefur, 15 Ark. 381, said that, their purpose was £not to invest the probate court with jurisdiction of contested rights, and matters of litigation, as to the’title to property, between the executor or administrator and others.’ The sections of the Revised Statutes construed by the court in Moss v. Sandefur, supra, were enacted under the Constitution of 1836, giving to the probate court such jurisdiction in matters relative to the estates of deceased persons as might be prescribed by law. Constitution of 1836, art. 6, § 10. At the time when above case was decided the Legislature had not conferred upon probate courts jurisdiction to hear contests as to the title of property between executors and administrators and others claiming' title to property as against the estate of deceased persons. They had no such jurisdiction then, nor do they have it under the present Constitution. Constitution of Arkansas, art. 7, § 34; Kirby’s Digest, § 1340. The court, under the statute, had jurisdiction only to compel the appellee to disclose what personal property he had in his possession belonging to the estate of Margaret Kenner, and to cause him to deliver the same to the executor.”

In that case, however, the court found that the procedure in the probate court and in the circuit court on appeal was acquiesced in, which resulted in the incurring of costs incident to the trial of the rights of the property which might have been prevented by timely objection to the procedure, and the judgment of the lower court adjudging the controverted rights and one-half the costs to each of the litigants was not disturbed, on the theory that the same had been caused unnecessarily by the party complaining and had been acquiesced in.

If we give full effect to the conclusions last reached in Fancher v. Fenner, supra, it would have no application in the instant case, for the reason that at no time did the appellants acquiesce in or recognize the jurisdiction of the probate court, as appears from the motion filed in June, 1927, to vacate the order of the court on the allegation made that it had no jurisdiction to hear the controversy or to make the order directing the delivery of the jewelry to the executor.

In Lewis v. Rutherford, 71 Ark. 218, 72 S. W. 373, we held that probate courts have only such special and limited jurisdiction as is conferred upon them by the Constitution and statutes, and can only exercise the powers expressly granted and such as are necessarily incident thereto. The Constitution of 1874 did not enlarge the jurisdiction of probate courts, and, since these are courts of limited and special jurisdiction, the jurisdiction would not be extended beyond the constitutional limits. Hart v. Wimberly, 173 Ark. 1083, 296 S. W. 39. Indeed, it is the general rule that probate courts have no jurisdiction as to any subject except that expressly or by necessary implication given by the Constitution and statutes.

“‘But extensive and important as this jurisdiction (that of probate courts) is. it is very different from that of courts of really general law and enuity jurisdiction, which it is said is ‘undefined, general, like space, ending nowhere, and embracing all that is.’ It is limited in its general scope, as to subject-matter, to the undisputed property of decedents and of wards, and, as to persons, to those interested in such property as equitably or legally entitled to some distributive share therein, or in the residue, and to creditors who voluntarily, upon general notice and without special citation, present their claims. All controversies between executors, administrators or guardians, or those interested in the particular estate, and other persons not interested in it, must be settled in another forum.” Section 23, p. 20, Gary’s Probate Law (3d ed.).

“Prom all the cases it would seem: that the rule as to jurisdiction of subject-matter is substantially as stated in Massachusetts by Chief Justice Parsons nearly a century ago: ‘When the question before a judge of probate is only as to the manner of exercising his jurisdiction on a subject of which some court of prebate has jurisdiction, then, if he mistakes, the means of correcting such mistake is by appeal. But when the question is whether the court of probate has jurisdiction of the subject or not, he must decide it, but at his own peril. H he errs by assuming a jurisdiction which does not belong to the probate court, his acts are void’.” Section 34, p. 28, Gary’s Probate Law. Mobley v. Andrews, 55 Ark. 222, 17 S. W. 805; Stewart v. Lohr, 1 Wash. 341, 25 Pac. 457; In re Woolford, 10 Kan. App. 283, 62 Pac. 731; Bolander’s Estate, 38 Ore. 490, 63 Pac. 689; Falke v. Terry, 32 Col. 85, 75 Pac. 425; Works on Courts and Their Jurisdiction, p. 440.

In the recent case of Moss v. Moose, 184 Ark. 798, 44 S. W. (2d) 825, the principles announced were recognized and reaffirmed.

It is the contention of the appellant that the time for taking the appeal ran from the order of August 6, 1929, whereas it is the contention of the appellee, and was upheld by the circuit court, that the time for taking the appeal was limited to six months after June 7, 1927. The argument of appellant is that the order of June 7, 1927, did not become final until its motion to vacate the same for want of jurisdiction had been acted upon, and, as this was not done until August 6, they had six months from that date in which to perfect the appeal. We think that the ruling of the circuit court on this question was correct, but, as we have seen, the judgment of the probate court being void, the circuit court on appeal erred in directing the appellant to carry out the judgment of the probate court and to deliver to the executor the subject-matter of the suit, but should have treated the proceedings as an application in the nature of certiorari and have quashed the void order. For this'error the judgment must be reversed, but, since a remand for further proceedings would serve no useful purpose, the order of the probate court being- one the appellants are not bound to obey, we feel justified in treating- the appeal as if it had been a petition for certiorari, as it brought up for the inspection of the circuit court the entire record, from which want of jurisdiction clearly appeared and which would entitle the appellants to an order quashing the judgment of the probate court. We have held that where a writ of certiorari is improperly brought but within the time in which an appeal would be allowed, the petition would be treated as .an appeal on the principle that the law regards substance rather than form, and also because certiorari will lie to quash a void judgment, even though the judgment might have been vacated and set aside on appeal. Browning v. Waldrip, 169 Ark. 261, 273 S. W. 1032; Williamson v. Mitchell Auto Co., 181 Ark. 693, 27 S. W. (2d) 96.

The judgment of the trial court is therefore reversed, and the cause is remanded with directions to treat the appeal as a proceeding by certiorari, and that it enter an order for certification to the probate court quashing the orders of that court rendered on June 7, 1927, and those made with relation thereto.

Kirby, J., dissents.


author: Smith, J.

text:
    Arkansas Tax Commission v. Turley.
    Opinion delivered February 1, 1932.

      Hal L. Norwood, Attorney G-eneral and Robert F. Smith, Assistant, for appellant.

      Mann & Mann, for appellee, Turley,

      John G. Sheffield and Sevens & Mundt, for appellee, Fielder.
   Smith, J.

The two appeals here consolidated question the validity of the real estate assessments in St. Francis and Phillips counties, respectively, for the year 1931. The facts in both cases are substantially identical, and a statement of the facts in one case will suffice to present also the question for decision in the other.

The equalization board of St. Francis County organized in the time and manner provided by law. Numerous conferences were held by the members of the board in regard to the real estate assessments, and certain property was inspected. The board reached the conclusion that, owing to the general depression, there had been a considerable deflation in all values, and in the value of real estate in particular, especially as compared with the valuations existing at the time of the assessment for the year 1929 was made. After considering each parcel of city property and real estate separately, the board reached the conclusion that a separate and several reduction of the assessed value of each city lot and tract of land in the entire county of 25 per cent, should he made, and the county clerk was directed to extend the assessed valuations against each city lot and tract of land upon the tax books, in accordance with this decision.

Having reached this conclusion, the board of equalization made the following order:

“The assessment of all real estate in St. Francis County, including lands and toAvn lots located in said county, and which is assessed by the assessor for St. Francis County, is hereby ordered to be reduced twenty-five per cent. (25%) from the assessment as determined by the tax assessor and equalization of such assessment as heretofore made, and the clerk of the county court is hereby ordered and directed to place opposite each parcel or tract of land in St. Francis County, after the assessment against said land, town or city lot, a sum equal to seventy-five per cent. (75%) of the assessment as now extended on said assessor’s book, and that the assessment so reduced be copied into the tax books when the same is made up for the use of the collector of the revenue for St. Francis County for the year 1931.

“This order has no application to any property under the jurisdiction of the State Tax Commission for assessment.”

Upon being furnished a copy of this order in the manner provided by law, the Arkansas Tax Commission made an order relating thereto. This order recited the action of the board of equalization, and contained the following direction to the county clerk:

“Wherefore, premises considered, said order of St. Francis County Equalization Board is held for naught, and it is hereby ordered and directed that the St. Francis county clerk ignore said order of said St. Francis County equalization board, .as filed with said clerk under date of September 18, 1931, and that said St. Francis County clerk extend taxes on all real estate in said county for the year 1931, upon such valuations as returned by the assessor and adjusted by said county equalization board before having ordered said 25 per cent, blanket reduction, unless otherwise ordered and directed by the StateEqualization Board or a court of competent jurisdiction, and

“It is further ordered and directed that a certified copy of this order be immediately transmitted to the St. Francis county clerk, and copies be transmitted to the equalization board, county judge and county assessor.

“Done this the 21st day of September, 1931, under authority of § 12 of act No. 129, of the Acts of the General Assembly of 1927.”

The county clerk announced his intention not to comply with the order of the Tax Commission, whereupon that body filed a petition in the St. Francis Circuit Court for a writ of mandamus requiring that officer to comply with its order, and similar action was taken in regard to the assessments in Phillips County.

Upon hearing the petition in each case, the circuit court denied the prayer thereof, and these appeals are froin those judgments.

It is first insisted for the reversal of the judgments of the circuit courts that the orders of the boards of equalization were void under the authority of the case of Summers v. Brown, 157 Ark. 509, 248 S. W. 571. In that case the quorum court had, at the instance of the board of equalization, entered a “blanket reduction of the assessed valuation of the lands in the county.” The equalization board had not in that case made an equalization and reduction of the separate assessments of each piece of real property in the county, but had made an order reducing the assessments of all real estate in the county. We held that neither the equalization board nor the quorum court had the power to make this blanket reduction. We held, however, that the property owners were not prejudiced by this order, as it'had been made for their benefit.

Here, however, the facts are that the equalization boards did not make a single order applicable to the entire county, but found and directed that the assessment of each particular tract of real property, both urban and rural, be reduced 25 per cent. The question for decision is therefore whether the Tax Commission had the right to review this action, of the equalization boards and to order its rescission.

We- think the answer to this question is found in act No. 129 of the Acts of 1927 (Acts 1927, pag’e 400) and act No. 172 of the Acts of 1929 (vol. 2, Acts 1929, page 841).

By the act of 1929 it is provided that real property, situated within the boundaries of any city or town, shall be assessed biennially, beginning in 1929, in the odd-numbered years, and that other real estate, beginning in 1930, shall be assessed biennially in the even numbered years. The assessments here under review, having been made in an odd numbered year, there was no assessment of real property except that within the boundaries of the cities and towns to be equalized, and the equalization board had therefore no function to perform in regard to the assessment of other real estate. It was said in the case of Summers v. Brown, supra, that the equalization board had no power to equalize assessments except -for the year in which they were made.

The act of 1929 does make provision for the assessment of both urban and rural property, in either odd or even numbered years, in certain cases. By § 4 of this act, § 9918, Crawford & Moses’ Digest, is amended to permit the assessment each year of forfeited lands that have been redeemed, and lands previously exempt from taxation which have become subject to taxation, all new improvements exceeding one hundred dollars in value, all acreage lands that have been. platted as city or town lots, and all real estate or improvements thereon which have been damaged by fire, flood, tornado or other act of God. But it is not contended that the action of the equalization board in either county is related to or derived from this power of special assessments. Nor is it contended that the deflated values of either county was caused by any other condition peculiar to those counties. The depression about which the members of the equalization board testified, which had caused the deflation in values and which induced their action, prevails throughout the State, and is not confined to its boundaries.

The Constitution (§ 5, article 16) provides that “all property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State.”

While it is required by the Constitution and the statutes enacted pursuant thereto that each particular parcel of real estate shall be separately assessed, it is also contemplated that there shall be uniformity in the assessment of these values so far as practical, and, to accomplish this end, the Arkansas Tax Commission was created by act No. 129 of the Acts of 1927, supra. Section 12 of this act defines the numerous powers conferred upon the State Tax Commission, and the order to the county clerk here involved was made pursuant to the authority therein conferred.

Subdivision (a) of this section provides that the commission shall have and exercise general and complete supervision and control over the valuation, assessment and equalization of all property; the collection of taxes and enforcement of the tax laws of the State, and over the several county assessors, county boards of review and equalization, tax collectors and other officers charged with the assessment or equalization of property or the collection of taxes throughout the State, to the end that all assessments on property in the State shall be made in relative proportion to the just and true value thereof, in substantial compliance with law.

Subdivision (d) of the same section confers upon the State Tax Commission the power “to confer with, advise and direct all assessors, county boards of review and equalization, county judges, county clerks and collectors of State and county taxes, concerning their duty with respect to the revenue laws of this State.”

Subdivision (s) of the same section confers on the Tax Commission the power “to require any county board of equalization * * * to make such orders as the commission shall determine are .just and necessary, and to direct and order such county boards of equalization to raise or lower the valuation of the property, real or personal, in any township, district or city, and to raise or lower the valuation of the property of any person, company or corporation; and to order and direct any county board of equalization to- raise or lower the valuation of any class or classes of property; and, generally, to do and perform any act or to make any order or direction to any county board of equalization, or any local assessor, as to the valuation of any property, or any class of property in any township, district, city or county which, in the judgment of the commission, may seem just and necessary, to the end that all property shall be valued and assessed in the same manner and upon the same basis as any and all other taxable property, real or personal, wherever situated throughout the State.”

A number of the subdivisions of this § 12 of the act of 1927 were reviewed'in the case of State ex rel., Attorney General v. Standard Oil Co. of La., 179 Ark. 280, 16 S. W. (2d) 581, in a consideration of the general powers of the Tax Commission, and it was there said that “it was evidently the intention of the Legislature to place upon the Tax Commission the full responsibility for the enforcement of our tax laws.”

We conclude therefore that the Tax Commission had the power and authority to make the orders which the county clerks have refused to obey, and that it was the duty of these clerks to obey those orders.

The judgment of the circuit court in each case is therefore reversed, and writs of mandamus will be issued as prajred.


author: Humphreys, J.

text:
    De Soto Trust Company v. American Southern Trust Company.
    Opinion delivered February 1, 1932.

      C. O. Raley and F. G. Taylor, for appellant.

      G. B. Oliver, for appellee.
   Humphreys, J.

This suit was brought in the chancery court of Clay County, Western District, by appellees, on the 17th day of December, 1928, for the purpose of having a deed, executed by W. D. Polk and J. D. Polk to certain trustees for the benefit of their unsecured creditors declared a mortgage, and for the appointment of a receiver to take charge of the property described in the deed. Certain creditors, among them Henry Lepp, filed claims and were treated as interveners in the action. The court found that the interveners had a lien upon the property, ordered same sold, and appointed a master to take evidence and report on the claims of the several interveners. Henry Lepp died, and his claim was revived in the name of De Soto Trust Company, executor of the estate of Henry Lepp, deceased, the appellant herein. The master took evidence and filed a. report allowing appellant’s claim along with others. Exceptions were filed to the report of the master allowing appellant’s claim, which were submitted to the eoui;t upon the evidence heard by the master, resulting in a decree disallowing appellant’s claim, from which is this appeal.

The theory upon which the court, dismissed appellant’s complaint is that Henry Lepp was a secured creditor of the Polks on the date they executed the trust deed lo certain trustees for the benefit of their unsecured creditors, and hence not a beneficiary under its terms. Appellant’s claim consisted of three notes executed by J. M. Sherwood to Polk, and by him indorsed to Lepp. At the time of the execution of the trust deed, this note was secured by a second lien upon land evidenced by a mortgage by J. M. Sherwood to Polk. Another of the notes was a joint obligation of the Polk brothers, Lynn S. Polk, W. D. Polk, and W. Earl Polk. The third note was executed by W. D. Polk to Henry Lepp. At the time of the execution of the trust deed, all three notes were secured by a pledge of four notes of R. B. Thurman, in the aggregate sum of $12,000, which twelve thousand dollar note was secured by a second lien on a large tract of land.

In order for appellant to have brought himself within the terms of the trust deed, he must have shown that the securities he had for his several notes were worthless, or that they were worth some amount less than the face of the notes on the date of the execution of the trust deeds. This he failed to do. Having failed to do so, appellant’s claim was properly rejected by the court.

No error appearing, the decree is affirmed.


author: Kirby, J.,

text:
    Conqueror Trust Company v. Coxsey.
    Opinion delivered February 1, 1932.

      L. 8. Dewey, for appellant.

      Festus O. Butt, for appellee.
   Kirby, J.,

(after stating the facts). Our statutes provide the procedure for the removal of property of a nonresident ward from this State, where the guardian and ward are both nonresidents. Sections 5054-5057, Craw.ford & Moses’ Dig-est. The first of said sections provides that, “on producing- satisfactorj^ proofs to the court of probate of the proper county according- to law that, he has given bond or security in the-State in which he and his ward reside, in double the amount of the value of the property as guardian, then such guardian may demand or sue for and remove any such property to the place of residence of himself and ward.” The undisputed testimony in this case shows that the appellant company had'given bond on its appointment as curator by the probate court of Jasper County, Missouri, where it was appointed, in the amount of 125 per cent, of the estimated value of the ward’s estate, the amount required given by the laws of Missouri; and also the value of the assets of the appellant trust company were shown to be about $8,000,000. It was contended, however, that it had not given bond or security in the State in which it and its ward reside “in double the amount of the value of the property,” as our statute requires should be done before application of removal of a ward’s estate from this State is granted.

The testimony relative to the improvident management and loss of some of her own estate by the ward’s mother by her management of it could not have effect to show that the Missouri curator would not control, conserve and manage the estate of the ward properly, in accordance with the laws of the State of its appointment and the minor ward’s residence, and this testimony should not have been admitted.

Since, however, bond in the amount required by our statute was not made by appellant curator upon its appointment, its application for removal of the ward’s property from this State to her residence in Missouri was properly rejected by the court, and, even though the bond had been regularly made, the court’s refusal to make the order of removal could not be held to be arbitrary and not made because the court was not satisfied that it was for the best interest of the ward that such removal should not take place, the law allowing the court such discretion, and there appearing to be no abuse of this discretion. Section 5056, Crawford & Moses’ Digest.

We find no error in the record, and the judgment must be affirmed. It is so ordered.


author: Mehaffy, J.

text:
    East Arkansas Lumber Company v. Gerald.
    Opinion delivered February 1, 1932.

      Huddleston <& Hughes, for appellant.

      D. G. Beaucha/mp, for appellee.
   Mehaffy, J.

The appellant, on January 25, 1927, filed suit in the Greene Chancery Court against Mrs. J. F. Gerald and J. B. Walker & Sons, contractors, for material and lumber sold and delivered to the premises of Mrs. J. F. Gerald for the construction of a dwelling house. The house was built for Mrs. Gerald by the contractors, J. B. Walker & Sons.

The appellant alleged that between May 18, 1926, and November 1, 1926, it sold and delivered to the contractors various materials, consisting of lumber, hardware and other materials, and attached to the complaint was an itemized and verified statement, showing the amount due of $1,422.29. It alleged that Mrs. J. F. Gerald had entered into a contract with J. B. Walker & Sons for the construction of the building, and that the material furnished by it was used in the construction of the building which was located on lot 6, block 15, West End Addition to the city of Paragmild, Arkansas.

Judgment was asked against the contractors for the sum above mentioned, and for a lien upon the property described, for sale of the property, and for all other and proper relief.

Answers were filed by the contractors and Mrs. Gerald denying the material allegations in the complaint.

The building was completed on September 15, and Mrs. Gerald moved in about October 1,1926. She accepted the building and paid the contractors the contract price.

The appellant alleged that thereafter on November 1 it furnished other materials amounting to 30 cents, and that their time in which to file a lien began to run from November 1, and not September 15, because they say this 30 cents worth of material was a part of the original contract.

The evidence offered on the part of the appellant tends to show that material was furnished on November 1, which consisted of two or three -sash lifts. The appellant’s evidence also shows that the last item before that was furnished on September 17.

One of appellant’s witnesses testified that his record did not show who delivered the material to the premises, but that he knew, from his own personal knowledge, that the material Avas delivered to the premises by employees of the East Arkansas Lumber Company. No receipt was taken when the material was delivered.

Another witness for appellant, a carpenter, testified that he remembered about the item of the value of 30 cents furnished on NoA^ember 1. He also testified that Mrs. Gerald Avas living in the house at the time, but does not know Iioav long she had lived there; and, continuing to testify, he says that he does not know the date when this material was delivered, but that Mrs. Gerald Avas present at the time they were put in place.

Mrs. Gerald testifies that the contractors completed the building under the contract about September 15. They notified her it was completed, and she went through the building making an examination. They sent her the key, and she accepted it. She says it appeared to her to comply Avith all the terms and plans and specifications; that she accepted the building at that time, and moved in about October 1, and has lived there ever since. She paid all of the contract price to Walker at the time she’ accepted the building. She testified that no further Avork was done under the contract after the house was turned over to her on September. 15. She accepted the windows as completed and the sashes installed. She does not remember any men doing- any work around the house about November 1. They did not install any window lifts under her instructions.

T. L. Huddleston, local manager for appellant, was recalled, and testified that he knew of but one contract, and did not know that the house was turned over by Walker & Sons, and had no notice that it had been turned over. This witness had charge of the affairs of the East Arkansas Lumber Company in Paragould.

The undisputed evidence shows that Horace J. Whitsitt was the owner of the lot on which the building described was erected; that Whitsitt-died October 12, 1918; that Horace W. Whitsitt, one of the appellees, was about sis years old when his father died; that the house in which they lived during Whitsitt’s lifetime, and which was the homestead of the Whitsitt family, was torn down for the purpose of erecting the building upon which the lien is sought.

The widow of Horace J. Whitsitt married J. F. Gerald, and still occupied the place as a homestead. Mrs. Gerald, without getting permission of any court or any other person, tore down the original and made the contract with Walker & Sons for the present building. Horace Whitsitt, the appellee, was about 14 years old at the time the contract was made.

On January 27, 1931, appellant -filed an amendment to its complaint, alleging the death of Horace Whitsitt, the owner of the homestead; that he died intestate, and left as his only heir a son, Horace Whitsitt, a minor, who owned the premises, and that his mother, Mrs. J. F. Gerald, ownéd a life estate, and that it was necessary to make said minor, Horace Whitsitt, a defendant.

Summons was served on the minor January 28,1931, and answer was filed for him, in which he claimed to be the owner of the property; alleged that at the time of his father’s death there was a good and substantial residence on said premises; that it was the homestead of his father at the time of his death, and has been his homestead ever since the death of his father; that the residence was illegally and wrongfully torn down, and the house now on the premises erected; that there could be no lien for materials and labor without proper authority ; that no authority was given by Horace Whitsitt, and that his property was not subject to any lien; that he did not contract for the construction of any house, and no one had authority to contract for him, and he denied appellant’s right to a lien; and stated that no lien was attempted to be filed within the time allowed by law.

We do not deem it necessary to decide the questions of Mrs. Gerald’s right to contract for the construction of the building, or the right of appellant to create a lien on the property of the minor, because we have reached the conclusion that appellant’s claim for a lien was not filed within the time allowed by law.

The chancery court entered a decree in favor of the appellees, Mrs. J. F. Gerald and Horace Whitsitt, and, as to them, dismissed the complaint of appellant for want of equity. As to the other defendants, the court made no finding for the reason stated in the decree that the plaintiff seemed to have abandoned its cause of action therein. The case is here on appeal.

The statute provides: “It shall be the duty of every person who wishes to avail himself of this act to file with the clerk of the circuit court of the county in which the building, erection or other improvement to be charged with the lien is situated, and within ninety days after the things aforesaid shall have been furnished or the work or labor done or performed, a just and true account of the demand due or owing to him, after allowing all credits, and containing a correct description of the property to be charged with said lien, verified by affidavit.” Section 6922, Crawford & Moses’ Digest.

The undisputed proof shows that the house was completed about September 15, and Mrs. Gerald moved into it October 1. She paid the contractors in full, made an examination of the house, and decided that it was finished according to contract. But, assuming that appellant’s testimony is correct, that they furnished some of the material on the 17th of September, the lien was not filed in time. It must have been filed within 90 days after September 17th, unless the 30 cents worth of material alleged to have been purchased about November 1, was a part of the original contract and authorized the filing of a lien for the whole amount within ninety days thereafter.

We do not think it can be considered a part of the contract, for the reason that Mrs. Gerald testifies that the contract was completed on September 15, she accepted it as complete, paid the contractors, and no material was thereafter furnished with her knowledge or consent. We do not think that the delivery of a trifling item like thirty cents’ worth of material, a month or two after she had accepted the contract, and furnished without her knowledge or consent, would extend the time allowed by law for filing the lien- for the whole amount.

Moreover, the real owner of the building was not notified or served until January 28, 1931, four years after it is claimed the material was furnished.

Appellant’s claim for lien not having been filed within the time allowed by law, its right to a lien, if any existed at all, was barred.

The decree of the chancery court is correct, and is therefore affirmed.


text:
    Missouri Pacific Railroad Company v. Harville.
    Opinion delivered February 1, 1932.

      Thos. B. Pryor and PLarvey Q. Combs, for appellant.

      R. W. Robms and Walter A. Isgrig, for appellee.
   McHaney, J.

Appellee sued appellant for personal injuries sustained by him while in its employ, and recovered a verdict and judgment for $7,500. The case was brought under the Federal Employers’ Liability Act, and no question is raised as to its applicability.

The principal assignment of error relied on for a reversal is that the evidence is insufficient to support the verdict and judgment, and that the court should have directed a verdict in appellant’s favor at its request.

In determining this question, we must view the evidence in the light most favorable to appellee, and, if there is any substantial evidence to support the verdict, when viewed in this light, it must be sustained. Briefly so stated, the evidence is to the effect that appellee was working as a section hand in an extra gang1 repairing the main line tracks of appellant some four or five miles north of Knobel, Arkansas. The foreman and crew had quit work for the day, and started back to Knobel where the foreman and a number of the crew desired to catch a train to Little Rock. The foreman was in a hurry. They were traveling on a motor car, sometimes referred to as a speeder, to which was attached a trailer. The motor car was operated by a two cylinder gasoline'engine, without a starter, and had to be pushed along the track a distance until the gas in the engine was ignited, and then the pushers would jump on. At the time appellee was injured, they had some trouble getting the engine started, and the foreman, who was in charge of the engine and operating it, directed appellee and others to get off the car and push, which they did. Appellee was pushing on the left side near the rear of the motor car and in front of the trailer, when the engine “caught” or fired, it gave an unusual lurch or jump forward, because the foreman had given it too much gas, and appellee’s leg was caught by the running’ board on the side of the trailer which threw his foot under the wheel causing him severe, painful and permanent injuries to his foot and leg. The negligence relied on is the act of the foreman in giving the engine too much gas, causing the car to make an unusual and unexpected jump when the gas ignited, and but for such jump appellee would not have been injured. Appellant had a rule providing that such cars should be pushed and boarded from the rear, but appellee had no knowledge of the rule, and it was habitually violated by all the men and the foreman. There were thirteen men pushing, three from behind and the others on both sides. Appellee had been working for appellant about twenty years, and was familiar with the operation of such cars.

On the above facts appellant insists that it was guilty of no negligence, but that, if it were, appellee assumed the risk. It is conceded that, under the Federal Employers’ Liability Act, contributory negligence is not a defense, except to reduce the damages. We think the evidence was sufficient to take the case to the jury on the question of the negligence of appellant through its foreman in giving the engine too much gas, causing it to make a sudden, unexpected and unusual jump forward. By its verdict the jury has found that appellant’s foreman was negligent in the manner stated, and, this finding being supported by substantial evidence, under the settled rule of this court, it must be permitted to stand.

On the question of assumed risk, we can not say as a matter of law that appellee assumed the risk. We think it was a question to be submitted to the jury, which the court did under instructions that are not complained of. It is well settled that under the Federal Employers’ Liability Act a servant is not deemed to have assumed the risk of the negligence of the master or that of a fellow-servant unless the consequent danger is so open and obvious that ail ordinarily careful and prudent, person in his situation would have observed the one and appreciated the other. Nor does he assume an extraordinary risk caused by the negligence of the master or of his fellow-servant. St. L.-S. F. R. Co. v. Blevins, 160 Ark. 362, 254 S. W. 671; Mo. Pac. Rd. Co. v. Hall, 161 Ark. 122, 255 S. W. 707; St. L. S. W. Ry. Co. v. Harrell, 162 Ark. 575, 259 S. W. 739; St. L.-S. F. R. Co. v. Miller, 173 Ark. 597, 292 S. W. 986. It was a question for the jury, therefore, as to whether appellee assumed the risk.

It is finally insisted that the court erred in refusing to give appellant’s requested instruction No. 9, as follows: “You are instructed that appellee assumed the risk in pushing from the side and attempting to get on the motor car from the side in violation of a rule promulgated for his safety, and your verdict will be for the defendant.” What we have already said disfioses of this contention adversely to appellant. Appellee and others testified that, if appellant had such a rule requiring them to push and get on the car from the rear, they knew nothing about it, had never heard of it, had not been instructed by the foreman or any one else not to push or board the car from the side, and that, if there were such a rule, it was constantly violated by all the men, including the- foreman. It is well settled that an employee cannot be held to have assumed the risk in violating a rule of which he had no knowledge. We find no error, and the judgment is affirmed.


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    United States Fidelity & Guaranty Company v. Hoflinger.
    Opinion delivered February 1, 1932.

      Wto. M. Hall and Lamb & Adams, for appellant.

      Wm. F. Kirsch, for appellee.
   Butler, J.

Rev. Joseph Froitzheim was insured by the appellant company against accidental bodily injuries, fatal or non-fatal, and, while the policy was in full force and effect, suffered a sunstroke from which he died. It was alleged in the complaint brought to recover on the policy “that, while not making undue exertion or effort at some time during the afternoon of said day, the insured accidentally suffered a sunstroke at his home in Pocahontas in Randolph County, Arkansas, as a result of and from the effects of which he, at the same place at about 7:30 o’clock in the evening of the same, died.”

A general demurrer was filed to the complaint which was overruled by the court, and, the defendant electing to stand upon the demurrer, the court on the same day rendered final judgment in favor of the plaintiff in the amount sued for.

The sole question presented is whether or not recovery may be had for death from sunstroke suffered by the insured while not making any undue exertion or effort and engaged in his customary activities, without intervening injury, under the terms of the policy sued on. By sub-paragraph No. 1, the policy insured the deceased against “accidental bodily injuries, fatal or non-fatal, being hereinafter referred to as ‘such injury’.” Under Schedule 2, titled Special Indemnity, is the following provision: “Blood poisoning, sunstroke, freezing, hydrophobia or asphyxiation due solely to such injury (excluding suicide, sane or insane, or any attempt thereat) shall be considered as covered by this policy.”

It is the contention of the appellant that a proper construction of the policy limits liability for sunstroke to only those cases where it is the result of some antecedent mishap or injury, and that this is clearly indicated by the words in Schedule No 2, “due solely to such injury. ’ ’

The contention is made that this is the holding of the court in the case of Southern Surety Co. v. Penzel, 164 Ark. 365, 261 S. W. 920, in construing a policy worded identically as the policy sued on. In that ease the court did not pass upon the question presented in the case at bar. The blood poison in that case developed at a date subsequent to the happening of the injury, but within thirty days thereafter. The policy provided for a certain indemnity to be paid for total disability commencing on the date of the accident and for one-half of that amount where the injury did not, from the date of the accident, wholly disable the insured but should do so within thirty days thereafter. Another provision in the policy was to the effect that blood poison, sunstroke, freezing, etc., due solely to such injury (excluding suicide, sane o'r insane) should be considered as covered by the policy. It was contended that the paragraph including blood poisoning- and the other things mentioned therein in a class to themselves exempted them from the conditions of the policy above referred to providing for indemnity in a certain amount where total disability occurs on the date of the accident and for half that amount where the total disability occurs thereafter and within thirty days. In that case the court held: “The whole policy must be construed together, and there is nothing whatever to indicate that blood poisoning, etc., are exempt from the conditions specified. * * * When infection enters through the wound produced by the original accident, some time will elapse before blood poisoning develops, and the object of this clause of the policy is to bring blood poisoning, sunstroke, freezing, hydrophobia or asphyxiation within the terms of the policy and to impose liability upon the insurance company when any one of these thing's results as the effects of the original injury * * *. Therefore, the court erred in finding for the plaintiff for total disability. The plaintiff was injured on the 6th day of January, 1921, and the blood poisoning did not develop until the 9th day of January, following, which could not be considered from the date of the accident.” Counsel mistakenly contend that the policy in that ease was worded identically as the policy sued on in the case before us. In the Penzel case the policy'insured against injuries “the effects resulting.exclusively of all other causes from bodily injury sustained * * * solely through external, violent and accidenthl means, said bodily injury so sustained being hereinafter referred to as ‘such injury’,” whereas, as w;e have seen, the insuring clause in the policy under consideration here insures against “accidental bodily injuries, fatal or non: fatal, hereinafter referred to as ‘such injury’.” It is therefore evident that the court in the Penzel case did not attempt to construe the special clause relating to blood poisoning, sunstroke, etc., in connection with the insuring clause, for, in the case of Continental Casualty Co. v. Bruden, 178 Ark. 683, 11 S. W. (2d) 493, the court, in a unanimous opinion, held that sunstroke itself was the original injury, and it and its effects are both the cause and the consequence of the original injury. In that case recovery was sought under a policy for the accidental death of the insured caused by “heat prostration.” The policy provided that “the insurance given by this policy is against loss of life * * * resulting from a personal bodily injury which is effected solely and independently of all other causes by the happening of an external, violent and purely accidental event.” In that case it was held that the authorities are united in treating-heat prostration and sunstroke as meaning the same thing, and, after reviewing a number of cases, the court accepted the view which appears to be supported by the greatest weight of authority and the better reason that death or injury occasioned by sunstroke was an accidental bodily injury: Sunstroke is a casualty the cause of which is not well understood and happens unexpectedly under circumstances where ordinarily a sunstroke will not occur, so that it may be said to be an unusual event not according to the usual course of things and not to be ordinarily expected. It therefore comes within the meaning of the term “accidental,” as used in its popular sense, and the court in the Bruden case, supra, concluded “that a sunstroke suffered by one unexpectedly is within the protection of an accident policy insuring against bodily injuries sustained through external, violent and accidental means.”

It is insisted that the provisions of the policy in the case before us are different from those in the policy considered in the Bruden case. This is true, but we are of the opinion that it is more liberal and comprehensive, and, when we consider that sunstroke itself is an accidental injury, the specific provision of Schedule No. 3, referring to sunstroke, does not add to or limit the liability under the general insuring clause. Therefore death from sunstroke is covered by the policy sued on, and the court properly overruled the demurrer, and entered judgment in favor of the plaintiff.

The appellee has cited a number of cases announcing a contrary doctrine, but these cases were examined in the case of Continental Casualty Co. v. Bruden, supra, and in the cases therein referred to. A number of other cases have been cited by the appellee to support the construction adopted in the Bruden case, but we deem it unnecessary to.discuss these as our own decisions have settled this question, and under their authority the judgment of the trial court is correct and must therefore be affirmed. It is so ordered.


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    Christian v. People's Trust Company.
    Opinion delivered February 1, 1932.

      Chas. A. Walls, for appellant.

      Co ¿krill d Armistead, for appellee.
   Butler, J.

The executors of the estate of J. E. Hicks, deceased, in the early part of 1930, had no cash on hand or personal property out of which anything might be realized to pay the inheritance tax due on the estate of their testate amounting to $9,021.54, or with which to pay the State and county and improvement taxes amounting to $3,617.15. They also deemed it necessary to continue the policies of fire insurance on the improvements, the premiums on the same amounting to $1,203.73. This situation was presented to the Lonoke County Probate Court, in which court the will was probated, and the executors were authorized by an order of that court to borrow the above sum from the People’s Trust Company, empowering them to execute their note as executors with interest at the rate of six per cent, per annum from date until paid. On April 29, 1930, the executors secured a loan from the trust company for $12,638.69, which was applied to the payment ■ of the taxes and a note evidencing this transaction was signed by the said executors. The note becoming due and remaining unpaid, this suit was instituted to recover .a .judgment against the estate.

It was allegéd in the complaint that the executors had no money ánd no personal property belonging to' the éstate of any value except stock in a bank which was in the process of liquidation, the value of which stock was so small and uncertain that nothing could be secured by sale of it or otherwise. It was further alleged that the executors had no power under the will to sell any of the real-estate to pay plaintiff’s claim; that the executors were entitled to a lien for the money used in paying taxes on the real estate paramount to all other claims and were subrogated to the liens of the State, county, and improvement districts for the taxes discharged by them because they were proper expenses of administration, and that the trust company, in lending the money to the executors for the purpose of enabling them to discharge the tax liens, was subrogated to the liens of the executors and trustees. The prayer of the complaint was for judgment for the sums named with interest, and that it be declared a lien on the real estate belonging to the estate prior and superior to the rig-hts, etc., of any of the defendants, and for sale, etc.

The executors of the estate, the heirs of the decedent, and the beneficiaries under the will were named as defendants, all of whom are sui juris except the appellants, who. are minors. In addition to the heirs and beneficiaries, certain other persons who it was thought might have a claim to some interest in the estate were made parties, and within apt time a guardian ad litem was duly appointed for the minor defendants. Certain of the defendants 'did not. file any answer or other plea, and as to them judgment was rendered by default. All of the other adult defendants answered specifically admitting the allegations of the. complaint and joining in its prayer. An answer was filed by the guardian ad litem specifically denying each allegation of the complaint and praying that the complaint he dismissed. The cause came on to be heard in the Lonoke Chancery Court, and the court heard the testimony of witnesses and rendered a decree granting the relief prayed. ' The court found that due service of process was had upon all of the defendants and specifically against the minors for the time and in the manner prescribed by law, and made special findings of fact in detail that each of the allegations of fact made in the complaint were true, and also made special findings of law and found that the executors and trustees had a lien on all of the real estate for expenses incurred and money advanced in paying the taxes; that the money was properly borrowed and expended as expenses of administration, and was necessary to save and preserve said estate; and that the lien was prior and paramount to all of the rights and interest of all of the parties to the suit and to any creditors of the estate or to any attorney’s fees or other expenses of administration; that they were subrogated to the liens of the State, county and improvement districts to which said taxes and assessments -were paid, and that plaintiff bank, in lending the money to be used for those purposes, became subrogated in turn to the liens of the executors and trustees.

The court further found that by the-order of the probate court the executors were duly and legally empowered to borrow the money to pay the liens aforesaid and to incumber the said real estate, for that purpose, and to execute the note sued on, and that said note constituted an equitable lien on the real estate. The court decreed ‘that the plaintiff was entitled to foreclose its liens and to sell any part of the real estate to satisfy them, and that, if the sums adjudged due were not paid, within twenty days from the date of. the decree, the commissioner named should - proceed to make sale on certain terms and in a certain manner. From this decree the guardian act, litem of the minor defendants has appealed, but it is obvious that it is only for the purpose of complying with the legal and moral obligations due them and to submit to the court of last resort the findings of law made by the chancellor.

The testimony was undisputed and amply sustains the findings of fact. The debt sued for is admittedly just, and the method adopted in the order of the court is conceded to be most advantageous to the minors; the attorney and guardian for the minors submitting only the question as to whether or not the plaintiffs are entitled to a lien under the doctrine of subrogation or otherwise as decreed by the court. He suggests that in lending the money the appellee bank was a volunteer and not entitled to subrogation under the doctrine announced in Hughes Co. v. Callahan. 181 Ark. 733, 27 S. W. (2d) 509. The suggestion is further made that the order of the probate court does not entitle the appellee to a lien because the probate court did not authorize, nor did the executors execute, any mortgage as provided in act 195 of the Acts of 1927. It is shown that the estate consisted almost exclusively of real estate in several counties, a large part of which being farm lands and some city property, and there were valuable improvements on the property, the estimated value of the property as improved at the time the proceeding was instituted being $125,000. Most of the property was located in Lonoke County. There was no personal property of any value, and the income from the property had been so depleted by drouth and reduced values of farm products that the executors had no income with which to discharge the taxes due; that, with the exception of these taxes, there were no other debts due by the estate, and it was necessary that the taxes be paid in order to prevent a forfeiture and sale of the property for delinquent taxes. With this situation confronting them and after having secured the authority of the probate court, the executors borrowed money in the manner above described.

It is clear that the chancery court had jurisdiction, because, as suggested by counsel for the appellee, the case involves the foreclosure of a lien and the exercise of the equitable doctrine of subrogation, and, as it was proved that the executors had no personal property belonging to the estate of any value in their possession, and that there was no income from the property, it was entirely proper for the court to make ah order for a sale of the property, as this was necessary to the execution of the purposes of the trust and protection of the estate and beneficiaries thereunder. The executors and trustees were under a duty to pay the taxes to prevent forfeitures and tax sales, and the payment of these taxes was an expense of administration for which the executors were entitled to reimbursement. Section 10,053 Crawford & Moses’ Digest; 39 Cyc. 337-45. As stated by counsel for the appellee, it is the general rule where one lends money to an- executor which money is applied to pay debts or otherwise for the benefit of the estate, he takes the place of the executor in so far as his right to be subrogated to the representative’s lien and to his right of reimbursement from the estate. 24 C. J. 71; Stoops v. Bank of Brinkley, 146 Ark. 127, 225 S. W. 593. The facts in the case show that the appellee in lending the money to the executors did not act as a volunteer. It was understood between the representative of the appellee and the executors that the money was loaned for the purpose of paying the taxes, and that it was to be subrogated to all the rights and liens that the executors had in paying the taxes, and' to evidence this the appellee required the physical delivery of the tax receipts to it for the purpose of attaching them to the note.

In Hughes v. Callahan, supra, cited by the appellants, a mortgage debt was paid off at the request of the mortgagor, the court holding that under these circumstances the one paying the debt was not a volunteer, and that he was entitled to be subrogated to the mortgage lien. In Rodman v. Sanders, 44 Ark. 504, 507, cited by appellee, the court adopted the principles stated in Sheldon on Subrogation, §§ 243-247, to the effect that one who pays a debt at the instance of the debtor is not a volunteer, and if, when he makes the payment, he manifests an intention to keep the prior lien alive for his protection, he will bo deemed in equity a purchaser of the incumbrance. And in Stephenson v. Grant, 168 Ark. 927-931, 271 S. W. 974, the rule is stated as follows: “One who advances money to pay off an incumbrance on realty at the instance either of the owner of the property or the holder of the incumbrance either on the express understanding- or under circumstances from which an understanding will be implied that the advance made is to be secured by a first lien on the property, is not a mere volunteer.” See also Davis v. Pugh, 81 Ark. 253, 99 S. W. 78; Stoops v. Bank, supra.

We are of the opinion, therefore, that the trial court properly decreed that the appellee was subrogated to the tax liens and that the same were prior and paramount to all other claims against the estate and it was entitled to have the said liens fixed upon the lands of the estate and that the same be sold to satisfy said lien’s.

It is unnecessary to decide the legal effect of the order of the probate court, and the action taken pursuant thereto, as the appellee is entitled to the relief prayed under the general rule and independent of the statute.

The decree is affirmed.