author: Mr. Justice Hanly

text:
    King et al. vs. Payan & Co.
    The jurisdiction of Courts of Chancery to enforce the remedy by garnishment or sequestration, is not divested by the statute conferring jurisdiction in such case, upon Courts of law. The remedy by judicial garnishment, under the statute, and the proceeding in equity having the same effect, are concurrent.
    No proceeding can be had, either at law or in equity, by way of garnishment (except upon the statute of attachments) until after judgment has been rendered at law against the original debtor; and so, upon a bill in equity against the debtor and a garnishee, the Court would have no jurisdiction unless it appeared that the complainant had obtained judgment against his debtor.
    Where a defendant submits to answer a bill in equity without reservation, and without exception to the jurisdiction of the Court, he will not be permitted to make that objection, for the first time, in this Court. (Mooney vs. Brinkley, 17 Ark.)

    The answer of a defendant, admitting the indebtedness originally, as charged in the bill, but alleging its payment, if responsive to the allegations and interrogatories, is at least prima facie evidence for the party making it, if not absolute proof of the facts stated, so as to require the usual countervailing proof in cases necessary to outweigh an answer in chancery.

      Appeal from the Circuit Court of Marion county in Chancery.

    The Hon. Beaufokt H. Neely, Circuit Judge.
    D. C. Williams for the appellants.
    The claim was a plain money demand, upon which the ap-pellees could have recovered judgment at law, and have issued their writ of garnishment against appellant, and thus have reached his indebtedness. Hempstead & Conway vs. Watkins, 1 Eng. 317) 1 Story’s Eq. Jur., sec. 61 ,p. 49.
    The appellees had no right to a decree against the appellant in this case until they had recovered judgment against him and issued an execution and it returned nulla bona. Duberry vs. Clifton, Cook R. 338; Beek vs. Burdit, 1 Paige 305; Hendrix vs. Henderson, 2 J. Ch. Cas. 294.

      Upon the merits of the case the decree was wrong as to Owens. Every allegation in the bill, that could have the least tendency to subject him to liability, is fully met and answered; and the bill is not sustained, nor the answer contradicted by any evidence.
   Mr. Justice Hanly

delivered the opinion of the Court.

This was a bill brought by the appellees against the appellants and William Coker and William 0. Mitchell, in the Marion Circuit Court in chancery. The substance of the bill, as far as is material, is as follows: That the appellees are merchants and co-partners in the city of New Orleans; that, as such, they sold and delivered to the appellant, King, merchandize to the amount of ten hundred and eighty-five 66-100 dollars', for which King, the appellant, made, executed and delivered to them his promissory note, bearing date 19th April, 1854, payable twelve months from date, with interest at 8 per centum per annum after maturity, which said note was exhibited with the bill, and asked to be taken and considered as a part thereof; that at the time of the exhibition of the bill, the note remained wholly unpaid and due the appellees; that a short time after King, the appellant, purchased the goods in question from the appellees, he brought them to Arkansas and sold them col-orably to the appellant, Owens, with the view and intention of hindering and delaying the appellees and others, his creditors, in the collection of their just demands and debts against him; that to accomplish this the more effectually, the appellant, King, put all his property, consisting of personal and real estate and choses in action, into the hands of divers persons besides the appellant Owens; that appellees are uninformed as to the kind, value or amount of property so disposed of, and of the names of the persons implicated therein; that the appellant King, pretends to be possessed of no property whatever, and declares his utter ixrability to pay the debt due to the appellees; the bill chai’ges that, if the sale from King to Owens of the merchandize bought of them, was not colorable and fraudulent, intended to hinder and delay creditors in the collection of their just debts against King, tbe appellant, Owens, still owes and is indebted to King in tbe amount of the value of tbe merchandize so bought; say, in • the sum of fifteen hundred dollars: that beside the amount thus due from Owens to King, the appellant, Owens, has in his hands or possession, property or choses in action belonging to King, which he holds in secret trust for him to enable him to accomplish his designs to hinder and delay his creditors to collect their debts: that the appellees have no means of ascertaining or knowing the facts aforesaid, except by discovery from the appellants. The bill prays a discovery upon all the facts charged; and that appellants be required to answer immediately as to such facts, setting forth names, dates, amounts, etc.: the special relief demanded against appellants is, that they be decreed to pay appellees the amount of the debt, with interest, etc.

Separate answers were made by each of the appellants. King admitted his indebtedness to appellees as stated in the bill; that he had sold his stock of merchandize, including the goods bought of appellees, to his co-appellant, Owens; states how Owens had paid him for the same; answers positively that Owens did not owe him one cent, but, on the contrary, that the balance was in favor of Owens; that he owed Owens over one hundred dollars on a fair settlement and adjustment of accounts; denied that he had sold to Owens for the purpose of hindering or delaying his creditors; admits his insolvency and declares that he was possessed of no property whatever, except a “ homestead,” and that he knows of no one who holds any property in secret trust for him.

The answer of Owens admits the purchase of the merchandize from King; states its amount and value; that a portion of the amount was paid at the time of the purchase; that the rest and residue was paid at divers and different times between then and the commencement of the suit; that he did not then owe King a cent, but, on the contrary thereof, that King was then indebted to him over one hundred dollars; denies that his purchase from King was colorable, or intended by him to aid King in hindering or delaying his creditors, if such was really and truly his design in making the sale to him; that if such was the design on the part of King, he, Owens, was not aware of the fact at the date of his purchase, or when payment was made to him in the manner stated; denies broadly and flatly that he has or holds any property, moneys or effects in his hands or possession, colorably, or under a secret trust in favor of King, and, in a word, denies the whole bill and the allegations therein, except as above shown, so far as they pertain to him.

The cause was put to issue by replications to the answers and was set down for hearing on the bill, the answers, replications and proof to be taken. After the cause was taken up for hearing, it was agreed by the parties that the testimony of one witness might be taken ore tenus; which it seems was done by consent of the Court. This evidence was reduced to writing and fíléd in the cause, but does not bear upon the merits of the case, in the view that we shall take of it.

On this state of facts, the Court below decreed in favor of the appellees against both the appellants for the amount of their debt exhibited with their bill, and interest thereon from its maturity at 8 per centum per annum, and directed that the same might be enforced by execution as upon a judgment at law. From this decree, both appellants appealed, upon which the cause 'is now pending in this Court.

It is insisted that the bill of appellees should have been dismissed at the hearing, for want of equity.

Two points are relied on by the appellants, upon which to reverse the decree rendered in this cause: 1st. That the remedy of the appellees was complete at law, and a Court of Chancery had no jurisdiction. 2d. That upon the merits of the case the decree was wrong.

1. There can be no doubt, we think, but that the appellees had a remedy at law, so far as the appellants are concerned, but whether the remedy existing at law was as complete and effective as that which might be afforded by a Court of Equity, in case of jurisdiction in that Court to take cognizance of the suit, of which we will hereafter enquire, is not so clear or certain. We are rather inclined to tbe opinion that such was not the case. The remedy by attachment was not open to the ap-pellees, for the reason that the bill does not show that any of the grounds existed authorizing the issuing of an attachment against the appellant, King. If no attachment could have been issued against King, no garnishment against the other appellant, Owens, could have been issued until the appellees had sued King at law, and obtained judgment against him; for a judicial garnishment, under our statute, is only authorized after judgment against the debtor. See Dig. ch. 78, p. 558-’9. By the statute, the writ of garnishment does not operate upon the debt due by the garnishe.e to the judgment debtor, or the credit or effects in his hands, except from the time it is executed on him under the law, so that he may pay the debt, or turn over the property or effects to the judgment debtor at any time before the writ of garnishment is served on him. But, if a Court of Chancery has jurisdiction in such case for any purpose, so as to authorize that Court to entertain the suit, such would not be the privilege of the person standing in the suit in the relation of a garnishee in a proceeding under our statute to which we have referred; for so soon as .the subpoena in Chancery should be served on him, he would be fixed with notice of the matter of the bill, and the debt or effects in his hands would be charged, dependant upon the result of the suit. He could not pay the debt, or dispose of the effects to the prejudice of the complainant; in doing so, he would be held to do so at his peril, as in other Chancery causes, where the doctrine of lis pendens is applied. But this is rather a matter of argument or speculation, than a judicial determination of the question at hand. To accomplish this, it will be necessary to lay down some of the rules or principles .by which Courts of Chancery are ordinarily governed in the assumption and maintenance of the jurisdiction which rightfully, or by concession, belongs to them.

Judicial garnishment at law is a creature of the statute which authorizes it; but the remedy by garnishment or sequestration, is one which has been exercised by the Courts of Chancery, we may say, immemorially, or at least from a very remote period. The remedy by judicial garnishment under the statute in this State, and by the proceeding in equity, having the same effect, are concurrent. The conferring the jurisdiction or power upon Courts of law did not divest the ancient jurisdiction, which had been exercised by the . Courts of Chancery, anterior to the passage of the act in question; hence, this Court, in the case of Walker vs. Bradley, 2 Ark. R. 578, have said that: “ The proceedings in this case,” (which was one of judicial garnishment) “ are partly according to the practice of Courts of Chancery, and partly according to the practice of Courts of law.” If the party being entitled proceed against a person, liable as a garnishee, whether he proceeds at law or in equity, he must do so under the circumstances prescribed by the statute. The fact is, the statute, so far as the remedy in equity is concerned, is but declaratory of what the law was before its passage, as administered by the Courts of Chancery. No proceeding can be had, therefore, either at law or in equity by way of garnishment, except, possibly, in the solitary instances authorized by our attachment statute, until after judgment has'been rendered at law fixing the indebtedness of the debtor. When that is done, the two forums are alike open to the demand of the party seeking the remedy, — in law, by proceeding according to the statutory requirements; in equity, by adopting the course prescribed .by the ancient precedents, and the rules adopted by the Judges who have adorned the benches of those Courts. In the case before us, if the jurisdiction exercised by the Chancellor can be ¡sustained or upheld upon any pretext whatever, it must be in (consequence of the reason which we have urged above, and we have shown that the jurisdiction cannot be maintained on that ground, for the reason that the bill, independent of the answers and proof, shows that no judgment at law had been rendered in favor of the appellees against King, the debtor, but, on the contrary, it is manifest from the face of the bill, that the ¡proceeding was an original one, and independent of any other ¡suit or proceeding whatever. If .the proceeding could be up[held, it would be, virtually, doing -indirectly what could not directly be done by a Court of Chancery; for we have shown that tbe indebtedness of Owens, the appellant, to the other appellant, King, would be fixed from the time of the service of the subpoena upon him, so that he could not pay the debt to King, so as to discharge himself from the effect of the suit against him involving the question of indebtedness to King, which, by the bill, is asked to be appropriated to the payment of the debt due by him, King, to the appellees. It would be as effectual to the appellees in securing their debt against King, in the hands of Owens, as if the appellees had proceeded by injunction to restrain him from paying over his indebtedness, setting-up the same facts which the bill charges in this instance.

It is well established that a creditor at large, or before judgment, is not entitled to the interference of a Court of Chancery, by injunction, to prevent the debtor from disposing of his property in fraud of his creditor. See Wiggins vs. Armstrong, 2 J. Ch. R. 144, citing Angell vs. Draper, 1 Verm. 399. Shirley vs. Watts, 3 Atk. 200. Bennett vs. Musgrave, 2 Ves. 51. Balch vs. Wartall, 1 P. Wm. 445. Mitford 115. Cooper Eq. Plead. 149. See, also, 6 Rand. R. 190. Meaux vs. Anthony et al., 6 Eng. 411.

In Wiggins vs. Armstrong, Kent, Chancellor, said: “ The reason of the rule seems to be, that until the creditor has established his title, he has no right to interfere, and it would lead to an unnecessary, and perhaps a fruitless and oppressive interruption of the exercise of the debtor’s rights. Unless he has a certain claim upon the property of the debtor he has no concern with his frauds.”

If it is the rule of equity jurisprudence, that a creditor at large cannot interfere with his debtor until he shall have established his title at law, we see no good reason why his remedy should be enlarged when the proceeding is against both debtor and a debtor to such debtor, not it is true by an injunction, but by a proceeding which is a virtual injunction as to both; for the restraint upon Owens in this case would be a virtual restraint upon King, as heretofore shown.

We hold, therefore, in this case, that upon the face of the bill, as well as on the whole record before us, there is nothing which could give to the Court below jurisdiction of the subject matter, and as to the relief, prayed. But the inquiry arises whether, the appellants having omitted to avail themselves oí the want of equity in the bill, as well as the jurisdiction of the Court over the subject matter of the suit, but submitting to answer without reservation, those objections can be heard for the first time in this Court.

In Mooney vs. Brinkley, 17 Ark. R. this Court, by English, Ch. J., said: “ The defendant having submitted to answer the whole bill, and did not, by his answer, object to the jurisdiction of the Court of Equity over any of the matters set up in the bill, or otherwise demur for that cause, and having thus submitted the cause to the cognizance of the Court, it was too late for him, upon the hearing, and it is too late now, to object to the jurisdiction, unless the Court was wholly incompetent to grant the relief which the complainant sought by the bill.” Citing Ludlaw vs. Simonds, 2 Caine’s Cases in Error 40, 56. Underhill vs. Van Cortlandt, 2 J. Ch. R. 369. Hawley vs. Cramer, 4 Cow. R. 727. Grandin vs. Leroy, 2 Paige Ch. R. 509.

In Underhill vs. Van Cortlandt, cited by English, Ch. J., in Mooney vs. Brinkley, Kent, Chancellor, said on the subject: “It would be an abuse of justice if the defendants were to be permitted to protract a litigation to this extent, and with the expense that has attended this suit, and then, at the final hearing, interpose this preliminary objection.”

In the case at bar it does not appear from the record, that any objection was interposed, at any time, questioning the jurisdiction of the Court, whilst the cause was progressing in the Court below. • The question seems to have been made and urged for the first time, by the counsel for the appellants, in this Court. We may say, therefore, in the language of Chancellor Kent, that it would be “ an abuse of justice ” to allow the objection to prevail here.

Having thus disposed of the first point made by the counsel for the appellants, and those incidentally growing out of it, as they severally occurred to our minds, we will, therefore, proceed to consider and determine the only remaining one.

2. Is the decree, which was rendered by the Court below, warranted by the case made by the bill, the answers and replications, as to either or both of the appellants?

As to King, we think there can be no doubt of the fact. He admits his indebtedness to the appellees as charged, and by computation of the interest upon the amount, we find the sum decreed against him to be made up. The decree, therefore, as to King, will be affirmed.

But as to Owens the case is different. He admits the purchase of the stock of merchandize from the appellant, King, and in response to a question or interrogatory propounded in the bill, in which he was required to make the statement, he states that at the time of the purchase he paid a large part of the purchase money for the goods bought, and that since then and before the commencement of the suit against him, he paid the residue, and in conclusion, answers broadly and fully, that he was not indebted to King, in any amount, at the time of the commencement of this suit. We apprehend the answer made under such circumstances would be at least prima facie evidence for the party making it, if not absolute proof of the facts stated as to the payment, so as to require the usual countervailing proof in cases necessary to outweigh an answer in Chancery. See Britt vs. Bradshaw, at the present term; Wheat et al. vs. Moss et al., 16 Ark. R. 241; Green vs. Vardiman, 2 Blackf. R. 328, and the cases cited. In this latter case, the Court say: “ That the answer, so far as it is strictly such, being directly responsive to the bill, is to be taken as true. For where the bill requires a disclosure of such matters as may discharge the defendant, he is compelled to answer and disclose those matters; and if the disclosure amounts to a discharge, he is entitled to the full benefit of it.” The Court below, therefore, having no proof before it to countervail the evidence afforded by the answer of Owens, was unauthorized to render the decree against him, for any amount whatever, as a debtor of King. There being no proof of the purchase by Owens from King of the stock of merchandize, being fraudulent or colorable on the part of either King or Owens, but the reverse thereof as to Owens appearing by his answer, the Court below was unwarranted in decreeing against him on that account. The fact is, we are at a loss to conceive upon what ground, in point of fact or law, the Court below could have proceeded, to authorize the decree against Owens. We, therefore, hold the decree, as to him, erroneous and unwarranted. The decree is, consequently, hereby reversed, and the bill dismissed as to Owens, at the costs of the appellees in both Courts as to him.

The decree is affirmed as to King, at his costs as to himself in both Courts.

Let the judgment of this Court be so entered.

Absent, Hon. C. 0. Scott.


source: Caselaw Access Project

license: Public Domain

text:
    Bender vs. Bridge et al.
    It is -within the sound discretion of the Circuit Court, on the application of the plaintiff, to extend the time prescribed by the statute for filing the allegations and interrogatories in a judicial garnishment, as held in Lawrence us. Sturdivent, (5 Eng. 133.)
    But it is error to take judgment by default where the allegations and interrogatories have been filed after the time prescribed, without cause shown, or the special leave of the Court extending the time to file them.

      Writ of error to the Circuit Court of Pulaski county.

    The Hon. John J. Clendenin, Circuit Judge.
    Watkins & Gallagher, for the plaintiff,
    made the point, among others, that the allegations and interrogatories were not filed in time. Dig. ch. 78, sec. 3.
    Bertrand, for the defendant,
    as to the point that the allegations and interrogatories were not filed in time, relied upon the case of Lawrence vs. Sturdivent, 5 Eng. 133.
   Mr. Justice Hanly

delivered the opinion of the Court.

On the 4th day of April, 1856, the defendants in error caused a writ of garnishment to be issued. by the clerk of the Pulaski Circuit Court, against the plaintiff in error, in the usual form, returnable to the June term of the Court next after its date, reciting that, on the 5th December, 1854, they had recovered a judgment in the same Court against one Dyer for the sum of $492 08 for their debt, and also the sum of $4 92 damages, together with costs expended in the suit, reciting in said writ that the judgment remained in the Court unreversed and unsatisfied at the date of the issuance of the writ of garnishment in this behalf, and reciting further therein that the plaintiff in error had, in his hands and possession, goods and chattels, moneys, credits and effects belonging to their judgment debtor, Dyer.

On the 24th June, 1856, and at the June term of the Pulaski Circuit Court, next after the date of the issuance of the writ of garnishment in this cause, the defendants in error by their attorneys filed their allegations and interrogatories against the garnishee, Bender, in substance as follows:

“ That the said Bender is largely indebted to the said Dyer, against whom the said plaintiffs (below) on the 5th day of December, 1854, in this Honorable Court, obtained judgment for the sum of $492 08 for their debt, and $4 92 for their damages, together with costs, and thereupon here propound to the said defendant, Bender, the following interrogatories: 1. Were you not, at the date of the service of the writ herein, indebted to the said Dyer, (judgment debtor,) or the wife of the said Dyer? If yea, state the amount and character of any such indebtedness'and when due. And if to the wife, state how and in what manner you became so indebted, and when due, and whether the indebtedness in this case to the said plaintiffs was not created and made by and for the use of the wife of the said Dyer; and whether, if so indebted to her, your indebtedness did not arise out of the sale to you by her of the identical goods, or some of them, purchased by the said Dyer from the said plaintiffs?

“2d. State whether you have’not, since the service of said writ, become indebted to said Dyer? If yea, state the character and amount of any such indebtedness, and when due.

“ 3d. State what goods and chattels, or effects, if any, were in your custody or possession belonging to said Dyer.”

On the 27th June, 1856, and. at the same term of the Court at which the allegations and interrogatories as above were filed, the plaintiff in error, Bender, having failed to appear and answer the garnishment, was defaulted, and on that day the Court below rendered judgment against him by default, in favor of the defendants in error, for the sum of $543, “being the residue of the said judgment specified in the said writ, unpaid, and all the costs in this behalf expended.

Bender brought error, upon which the cause is now depending in this Court.

Sundry errors have been assigned and relied on by the plaintiff in error as grounds upon which he maintains that the judgment rendered in this cause must be reversed. But inasmuch as it is our opinion that the judgment must be reversed upon , one of the more prominent grounds assigned, we do not conceive it important that we should pass upon or notice those of minor consequence. We shall, therefore, omit to state them.

1. It appears from the transcript of the record before us, that the allegations and interrogatories were not filed in the Court below until the 24th of June, 1856, and on reference to the calendar of the year 1856, it also appears that the June term of the Pulaski Circuit Court for that year, commencing on the 4th Monday in June, 1856, was begun on the 23d day of June. It is insisted by the counsel for the plaintiff in error, that the filing of those allegations and interrogatories on the 24th June, the day succeeding the day on which the term commenced-next after suing out the writ in this cause, was too late for the filing of those allegations and interrogatories, under the statute in such case, without special leave of the Court granted for that purpose, and that, consequently, the judgment taken by default, under such circumstances, is unwarranted by the law, and is, therefore, erroneous.

Our statute on the subject requires the plaintiff, on or before the return day of the writ of garnishment issued in conformity to its provisions, to prepare and file all the allegations and interrogatories in writing, with the clerk issuing the writ, upon which he may desire to obtain the answer of such garnishee, touching the goods, chattels, moneys, credits and effects of the defendant, and the value thereof, in his hands and possession at the time of the service of such writ, or at any time thereafter. See Dig. ch. 78, sec. 3, pp. 559-560. As held in Moreland et al. vs. Pelham, 2 Eng. R. 338, the allegations and interrogatories authorized under this statute may be filed at any time between tbe suing out tlie writ and its return day, and that they need not be filed in open Court, and that their filing need not appear of record.

On a former occasion it was held, in Wilson vs. Phillips, 5th Ark. R. 183, that-though the statute on attachments provides that judgment shall go against a garnishee for the full amount found against the original defendant, on his failure to answer the interrogatories filed within the time prescribed by the statute, still the discretionary power of the Court to grant longer time for answering on proper cause shown, is neither abolished, abridged or impaired.

And again, in a case subsequent to either of the foregoing, Lawrence vs. Sturdivant, 5 Eng. R. 133, the Court say that “the language of the statute, though imperative in its terms, in respect to the filing of the allegations and interrogatories, and also the answer of the garnishee, must, of necessity, confer upon the Court a sound legal discretion over the whole matter; and to enable it, upon good cause shown by either party, to extend the time, within such limits as not materially to affect the legal rights of either.”

These, we think, are plain and incontrovertible propositions. But the case before us does not fall within the letter of the rule laid down in either of the cases to which we have referred. In this case, no request was made of the Court below for the extension of the time prescribed by the statute, within which the defendants in error were required to file their allegations and interrogatories. No extension of the time was, therefore, granted by the Court. On the day following, without special leave, these allegations and interrogatories were filed, and because they were not answered, on or before the fourth day of the term, by the plaintiff in error, he was defaulted, and a judgment by default rendered against him. Whilst we are willing to adopt the rule adopted by this Court in the cases already adverted to, we are unwilling to extend it so as to make a judgment thus obtained regular and valid. To do so, might lead to the great prejudice of garnishees, as well as their irreparable injury in many instances. We, therefore, hold in this case that, in consequence of the defendants in error having fail-. ed to obtain special leave of the Court, on the return day of the writ of garnishment, to file the allegations and interrogatories at a subsequent time, and there being no affirmative.evidence on the record that any showing was made at the time the allegations and interrogatories were filed, or that the Court specially authorized their being filed at the time they purport to have been, that the judgment by default rendered against the plaintiff in error became, in consequence thereof, irregular and erroneous; and for which cause, it should be, and is, hereby, reversed, and the cause remanded to the Court below with instructions to the Court to permit the allegations and interrogatories to remain of record, and require the appellant to answer them on a sufficient showing to be made by the appellees as to why they did not file - them on or before the return day of the writ, as required by law.

Absent, Hon. C. C. Scott.


author: Mr. Justice Hanly:

text:
    Cincinnati & Little Rock Slate Co. vs. Bridge et al.

      Error to Pulaski Circuit Court.

   Mr. Justice Hanly:

The facts and points in this case are identical with those in Bender vs. Bridge et al., just decided. The opinion in that case is referred to as decisive of this.


text:
    McGee vs. Humphreys.
    The rule that this Court will not set aside the verdict of a jury upon the weight of evidence, as laid down in Pleasants vs. Heard, 15 Ark. 403; Russell us. Cady surv., ih. 541, etc., approved.

      Appeal from Pope Circuit Court.

    The Hon. J. J. Clendenin, Circuit Judge.
    Thomas Johnson for the appellant.
    Williams & Williams for the appellee.
   Mr. Justice Hanly

delivered the opinion of the Court.

This was an action on the case, brought by the appellant against the appellee, in the Pope Circuit Court, for the value of a mare, alleged to have been killed by a stallion of the appel-lee.

At the return term of the writ the appellee appeared by attorney, and interposed the plea of the general issue in short by consent, upon which issue was taken by the appellant.

At the same term the cause was submitted to a jury upon this issue, and a verdict rendered for the appellee, upon which judgment was pronounced against the appellant for costs, etc.

No question of law appears to have been reserved at the trial. After final judgment was rendered by the Court in pursuance of the verdict, the appellant, by his attorney, interposed his motion in writing for a new trial, assigning as ground “ that the verdict was contrary to law and evidence, and unwarranted by the facts in the case.”

This motion was considered and overruled by the Court, for which the apellant excepted, setting out in his bill all the testimony introduced at the trial. We do not consider it necessary to a decision of this cause, that we should state the testimony introduced. Several witnesses deposed on each side, and from the evidence preserved in the bill of exceptions taken to the opinion of the Court overruling appellant’s motion for a new trial, it appears pretty equally balanced in respect to the responsibility of the appellee for the acts of his horse, under the circumstances shown.

McGee appealed, upon which the cause is now depending in this Court.

It is the peculiar province of the jury to pass upon the weight or preponderance of testimony, and the credit to be given to witnesses who testify in' causes before them, and this Court will not presume to interfere with the exercise of that right except in extreme cases, such, for instance, as where there is a total want of evidence to sustain any material allegation in the declaration, or where the amount of the damages, upon all the facts of the case, shocks one’s sense of justice, or where there is a total want of evidence to sustain the verdict as a whole. See Pleasants vs. Heard, 15 Ark. R. 403. Russell vs. Cady surv., same 541, and the uniform current of the adjudications of this Court on the same subject.

The case before us not falling within the rule laid down, the • judgment of the Court below will be affirmed.

Absent, Hon. 0. C. Scott.


author: Mr. Chief Justice English

text:
    Sadler vs. Rose.
    The Probate Judge is invested with a sound legal discretion in the appointment of guardians, and his judgment should not be overruled except in eases of manifest error or abuse of such discretion.
    The 3d section, ch. 80 Dig., providing for the removal of a guardian for good, cause shown, does not apply to a case where the appointment of the guardian is revoked at the term when it is made, whilst the orders of the Probate Judge are under his control, and before the guardian has entered upon the discharge of his duties.

      Appeal from the Circuit Court of Johnson county.

    The Hon. Felix J. Batson, Circuit Judge.
    Jordan for the appellant.
    Cummins & Garland for the appellee.
   Mr. Chief Justice English

delivered the opinion of the Court.

From the record before us in this case, the following facts appear:

On the 22d of October, 1855, a term of the Probate Court of Johnson county was commenced. On the 25th October, at the same term, Moreau Rose filed a petition in said Probate Court, stating as follows, etc.:

“ That Lucien 0. Sadler departed this life on or about the 11th day of December, 1853, in the county of Johnson, etc., seized and possessed of about $8,000 worth of property, real and personal. That the real estate has been sold by the administrator under order of Court. That the administrator informs petitioner that there are more than sufficient debts due said estate, to pay off all liabilities. That there are four negro slaves belonging to said estate, which will be ready to be turned over to the guardian of the minor heirs, to wit: Lewis 0. Sadler, aged about four and a half years, and Lucien O. Sadler, aged about two years. That they are the heirs of Lucien 0. Sadler, deceased. That the negroes, to wit: Jake, Ben, Sam and Sophia will be delivered on the 1st of January next by the said administrator. That there is a negro, Ben, about forty-five years of age, in dispute, and as soon as the controversy is decided, some disposition will be made by the administrator- — so he informs petitioner — and if he is adjudged to be the property of said estate, will be delivered to your petitioner. That one Bufus C. Sadler has been at this term appointed guardian of said minors contrary to the wish of the administrator and the mother of said minors. Your petitioner prays your honor to revoke the guardianship of said Rufus C. Sadler, and appoint your petitioner guardian of said minors,” etc.

It appears that the petition was taken up by the Court for disposal, on the same day it was filed, and that Rufus C. Sad-ler appeared and opposed the granting of the prayer of the petitioner: but the Probate Judge made an order revoking the appointment of said Rufus C. Sadler, as guardian of said minors, and appointed the petitioner their guardian: who, thereupon, entered into bond, and qualified as such, etc.

Rufus C. Sadler took a bill of exceptions to the decision of the Court, stating that the Court removed him, and appointed Rose guardian, as aforesaid, “ upon the facts and reasons set set forth in said petition, and no other evidence was given to the Court.” He appealed from the order of the Probate Judge to the Circuit Court of Johnson county, where the judgment of the Probate Court was affirmed: and he appealed to this Court.

By the Constitution, art. 6, sec. 10, the Probate Court has such jurisdiction in matters relative to the estates of deceased persons, executors, administrators and guardians, as may be prescribed by law, etc.

“ The Probate Court shall have jurisdiction in the following cases: first, of all cases relative to the probate of last wills and testaments, the granting of letters testamentary and of administration, and repealing the same. Second, the appointment and displacing of guardians of orphans, minors, and persons of unsound minds,” etc. Dig. ch. 48, sec. 5.

A minor of the age of fourteen years and upwards, may choose a guardian; and the Court, if there be no just cause to the contrary, shall appoint the person chosen. Dig. ch. 80, sec. 6.

When a minor is under the age of fourteen years, etc., the court may, according to its discretion, appoint a guardian. Ib. sec. 7.

Such Court shall have power to remove guardians for good cause shown. Ib. sec. 3.

It is manifest, from the above provisions of law, that the Probate Judge is invested with a sound legal discretion in the appointment of guardians, and that his judgment is not to be overruled by the supervising tribunals, except in cases of manifest error or abuse of such discretion.

In this case, Sadler, at whose instance does not appear, was appointed guardian of minors under the age of fourteen. Whether he entered into bond and qualified as such, does not clearly appear from the record before us. At the same term, and for aught that appears to us, on the same day, and at most, within two or three days thereafter, the Probate Judge revoked his appointment, and appointed Rose, and permitted him to enter into bond, and qualify as such. The whole matter occurred at the same term of the Court, and while the orders of the Court were under its control. It was the province of the Probate Judge to passs upon and determine the sufficiency of the causes stated in the petition for making the change in the appointment; and we have no such facts before us, as to enable us to decide that he abused the discretion vested in him by law in the matter. If he was satisfied with the truth of the statement, that the mother of the minors disapproved of the appointment of Sadler, this might have been a consideration of some weight in determining him to change the appointment.

If Sadler had entered into bond, qualified as such guardian and entered upon the duties of the office, and the term of the Court at which his appointment was made had expired, and the order thereby become final, the Probate Judge could not have removed him except for good cause shown. As to what would constitute such cause of removal, and as to how far the judgment and discretion of the Probate Court could be controlled in the matter by the superior tribunals, it is not necessary for us to decide in this case.

The judgment of the Court below is affirmed.

Absent, Hon. C. C. Scott.


author: Kirby, J.

text:
    Ætna Casualty & Surety Company v. Big Rock Stone & Material Company.
    Opinion delivered September 30, 1929.

      Frauenthal, Sherrill $ Johnson, for appellant.

      Rose, Hemingway, Cantrell & Loughborough, for appellee.
   Kirby, J.

Appellee brought this suit against Herman & McCain Construction Company, the contractor for the erection of a building for the Little Rock Tent & Awning Company, the owner, and the appellant company, surety on the contractor’s bond, for materials furnished the contractor and used in the construction of the building and not paid for. Judgment was prayed against the contractor, the surety on his bond, and for a material-man’s lien on the owner’s lot upon which the building was constructed, for the materials furnished, and the surety has appealed from the judgment' rendered against it.

The contractor’s bond, upon which the appellant company became surety, was made to the owner in the penal sum of $16,000, was not recorded with the clerk nor for double the amount of the contract price of the building, and provides:

“The contractor shall faithfully execute the contract, * * * and shall pay off and discharge claims for labor and material of whatever kind used in the construction of said work, * * * and shall turn over said work on completion to said owner in an undamaged condition, and free and clear of all liens and incumbrances whatever of mechanics or materialmen that may arise out of said contract.” The final clause of the contract reads:
“Now, if the said contractor shall fully and completely comply with all the provisions and conditions of said contract, and turn over said work to the said owner in an undamaged condition and free and clear of all liens and incumbrances whatever arising out of said contract, then this obligation shall be null and void.”

The court found that no notice had been given by the 'material furnisher to the owner of intention to file a claim for a lien, and that none had been filed or suit brought within 90 days from the time the last materials were furnished, but rendered judgment against appellant, surety on the bond, for the materials furnished. The bond (by its terms does not indicate that it was intended to be given in compliance with the statute, § 6912, C. & M. Digest, for discharge of liens against buildings and improvements., and the court did not err in holding it not to be a statutory bond. Mansfield Lbr. Co. v. National Surety Co., 176 Ark. 1035, 5 S. W. (2d) 294.

Appellant insists that, notwithstanding the surety bond be held not to have been given in compliance with the statute, under a correct and proper construction of its terms, it being- executed solely for the benefit of the owner, it cannot be held to the payment of any claim for materials furnished or labor done upon the buildings which were not duly made a lien therefor. The bond provides: “The contractor shall faithfully execute the contract, * * * and shall pay off and discharge claims for labor and material of whatever kind used in the construction of said work, * * .* and shall turn over said work on completion to said owner in an undamaged condition, and free and clear of all liens and incumbrances whatever of mechanics or materialmen that may arise out of said contract.” However, the majority is of opinion, in which the writer does not concur, that the language used is sufficiently broad and inclusive to make the surety liable to pay off and discharge all claims for materials and labor used in the construction of the building, and the provision, if the contractor shall turn over said work to the owner “in an undamaged condition and free and clear of all liens and incumbrances whatever arising out of said contract, then this obligation shall be null and void,” does not limit the liability to the payment of such claims for labor and materials furnished as constituted liens against the improvement, under the authority of the opinions in Leslie Lbr. & Supply Co. v. Lawrence, 178 Ark. 574, 11 S. W. (2d) 458; and Mansfield Lbr. Co. v. National Surety Co., supra.

The court is also of opinion that a reasonable construction of the terms of the bond shows it to have been made not only for the benefit of the owner, but for the benefit of materialmen and laborers as well, authorizing them to sue thereon for a breach of its terms. Mansfield Lbr. Co. v. National Surety Co., supra.

Appellant company being a paid surety and its contract one in the nature of a contract of insurance, it will be construed accordingly, most strongly against the surety. Union Indemnity Co. v. Forgey & Hanson, 174 Ark. 1110, 298 S. W. 1032; Leslie Lbr. & Supply Co. v. Lawrence, supra.

Finding no prejudicial error in the record, the judgment is affirmed.


author: Butler, J.

text:
    Gallegly v. American Insurance Union.
    Opinion delivered September 30, 1929.

      Oliver \S Oliver, for appellant.

      Caraway, Baker $ Gautney, for appellee.
   Butler, J.

This is a suit on an. insurance policy issued to D. N. Thomas by appellee. Sophie Thomas, wife of assured and mother of appellants, was the beneficiary named in the policy. She died at an undisclosed date, and the assured died on September 20,1927. Appellants are adults, and their mother and father died intestate, leaving no debts.

The trial was before the court sitting as a jury, and a .judgment was rendered finding ‘ ‘ the issues of law and fact for the defendants,” and dismissing the suit of appellants, who, in apt time, filed their motion for a new trial, in which the following assignments of error were made: “(1) That the findings of the court are contrary to the evidence. (2) That the findings of the court are contrary to the law. (3) That the findings of the court are contrary to the law and the evidence. (4) That the court erred in its holding that the defendant was not bound, under the terms of its contract, to advance or pay for him, Thomas, the one month’s premium for October, 1926, being the month for which defendant attempted to forfeit the contract of insurance sued on. (5) That the court erred in its holding that the defendant was not compelled to use the reserve that had accumulated upon the contract sued on in order to prevent a forfeiture, rather than to declare a forfeiture, and thus obtain the reserve for its own use.’

The motion was overruled, hence this appeal.

Appellee first insists that appellants were not entitled to bring or maintain this action because there is no provision either in the certificate or by-laws that will permit a relative to sue for an alleged claim. The answer to this is that they are not suing as relatives oif the assured, but as the heirs at law of the beneficiary, and as such are entitled to whatever benefits might have accrued to their ancestor, and the fact that there is no declaration in the by-laws relating to the heirs or relatives of a deceased beneficiary cannot diminish or change their legal status or their rights thereunder, and it therefore follows that they are proper parties plaintiff in this case.

The principal defense of the appellee (defendant below) was and is that the policy, the basis of this action, was forfeited for nonpayment of the monthly premium falling due October. 1, 1926.

It is admitted by the appellant that, under the constitution and by-laws of appellee, this, if true, is a perfect defense, but they say such was not in fact the case. The facts relevant to the material question in issue are undisputed, and such as are necessary for the decision of the case will be stated in this opinion.

The assured was a member of, and held a certificate of insurance on his life in favor of the beneficiary hereinbefore named in, some land of insurance company or association known as “The Home Protective Association.” In the aforesaid certificate he was insured for the sum of $1,000, for which he paid a monthly premium of $1.44. He held this certificate tfor an undisclosed period of years, and paid his premiums promptly on the first day of each month until the year 1919', when the association surrendered its assets to appellee, which took over its membership and agreed to pay the claims then existing, and such death claims of the membership of the Home Protective Association as might thereafter accrue. It was also agreed, in what appellee calls the “merger agreement” of the two insurance companies, that appellee might and should increase the premiums due each month to “a sum sufficient to meet the costs of his insurance on the basis of the American experience table of mortality, with interest at 4 per cent., or upon such other standard table of mortality and plan as may be deemed necessary by the national ’board of the American Insurance Union, to meet the costs of Ms insurance

The constitution and by-laws of the appellee provided for its creation and operation as a fraternal benefit society, with a central organization and local “chapters,” and for initiation, ritualistic work, etc., such as are common in organizations of its kind; these chapters to have chaplains and various other officers, one of whom was called the ‘ ‘ cashier, ’ ’ the idea being that, in addition to the insurance benefit, other indirect but highly important benefits would accrue to the membership from the fraternal spirit inaugurated and fostered by the local chapters, the frequent meetings, the ritualistic work, the visits of the brethren in sickness, their charity in distress, and the promoting and cementing of friendship by frequent association.

In part, to provide funds for this important and laudable portion of the activities and benefactions of appellee, § 907 of the by-laws provided that: “Beginning with the date of his admission, each life benefit member shall pay to the cashier of his chapter, in addition to his monthly premium, such sum as chapter duea as his chapter may prescribe, which shall be not -less than 15 cents a month, nor more than 25 cents” * * .

Such was the agreement under which assured became a member of appellee Union, such were appellee’s professed aims, and such the manner in which it proposed to function. Beginning with January 1, 1922, insured’s dues were increased from $1.44 per month to $6.95 per month, and with the beginning of each year thereafter the monthly dues were increased 75 cents, so that on January 1, 1926, his dues reached the sum of $9.95 a month, and continued so down to and including the date of the alleged forfeiture, October 1, 1926. The assured paid each month his premiums down to and including September 1, 1926. About a year prior to the last mentioned date he suffered a paralytic stroke, and never left his bed until his death, his daughter, Mrs. Gallegly, one of the appellants, attending to his wants and paying his monthly insurance premiums. When it became time to remit for the November premium, Mrs. Gallegly discovered that she had failed to send in the October premium, and on November 4 remitted for both the October and November premiums, with an explanation. The remittance was returned by the appellee, with certain blanks for reinstatement, including a certificate of “good health” to be made as a prerequisite to a consideration of the application. As the assured was and had been a helpless and incurable invalid for more than a year, the certificate could not be made, and, after some time, Mrs. Gallegly and assured were advised ;by appellee that the policy had been forfeited for the failure to pay the October premium within the 20 days of grace. Tender was made for four months premiums in advance, which was refused, and no other premiums were paid. Assured died September 20, 1927.

Beginning with January 1, 192:2, and continuing each month until and including September 1, 1926, appellee Union exacted of assured, and he paid, in addition to the premiums on his policy, a monthly fee of 25 cents as “chapter dues,” the total of which amounted on October 1, 1926, to a sum in excess of the premium due on that date. As, under the merger agreement, which has been quoted, the “costs of the insurance” were met by the payment of the monthly premiums, the only legitimate purpose for which the chapter dues could have been collected was to provide for the needs of the chapter in its ritualistic work, and to aid in its fraternal activities. But it appears that this was not the real motive for the collection of this sum, nor the uses to which it was devoted. There were 12,000 members taken over by appellee from the Home Protective Association, and 38,000' from other associations which appellee absorbed. The reasonable inference is that each of these were required to and did pay 25 cents each month as chapter fees, all of which totaled each month the sum of $12,500. Now, neither assured, Thomas, nor any other of the brethren acquired from the various associations taken over by appellee, ever made application to and none were ever initiated into any chapter. Assured lived in or near the town of 'Corning, Arkansas. There was never any chapter of appellee at that place. When the assured and the 38,000 others became members of the .appellee Union, they were assessed chapter dues as members of chapter 2,200, the domicile of which was said to have been at Columbus, Ohio, but into which neither assured nor the others were ever initiated or attended, because it never met. It never had a meeting during its entire alleged existence, and we are warranted in concluding that it never did have any existence, but was as “insubstantial” as Prospero’s airy pag-eant, “such stuff as dreams are made on, ” with this marked difference, that nothing ever comes of dreams, while $12,500 monthly came of this out of the policyholders, in excess of the “cost of insurance.”

In the case of Mutual Aid Union v. Perdue, 162 Ark. 551, 258 S. W. 375, it 'was held that where, under the bylaws, assessments are required to be levied by the board of directors, the levy of such assessments by the secretary is without authority, and a failure to pay an'’ assessment so levied did not work a forfeiture of the policy. Applying the rule announced in that case to the facts of the case at bar, it is clear that the exaction of the chapter dues was without authority. Their payment by assured and his agents cannot be said to have been voluntary, because it was made without a full knowledge of the fact, and under coercion implicit in the very demand. Because of this, the money s,o demanded and paid remained the property of the assured, and on October 1, 1926, amounted to, a sum greater than the premium due. Under such circumstances the insurer should have applied the funds in its hands, wrongfully collected from the insured, to the payment of the premium, and thus avoided a forfeiture, and, having failed in this duty, the law malíes .the application, and, doing so in this case, it follows that the premium due October 1, 1926, had been paid before its due date, and there was no forfeiture. We think the conclusion reached consonant with reason, and has the support of authority. “It is inequitable and against the policy of the law to permit a society to forfeit a contract of insurance for nonpayment of an assessment, whep it has in its possession the money of the member to an amount covering the assessment, and has the power to apply the money as an assessment.” Niblacli, Accident Ins. and Benefit Societies? 2 ed., § 271.

In the case of Knight v. Supreme Council, etc., 6 N. Y. Sup. 427, the court said:

• “The defendant had already in its hands moneys illegally exacted from the deceased which it ought to have applied to the extinguishment of the assessment. * * * Knight became a member' of the order on July 28, 1884. He was not liable for any assessment for any loss prior thereto. Yet it is shown that he was included in and'paid an assessment of July 22, 1884, under circumstances which would show that it was not a voluntary payment. * * * So long as there remained in the treasury of the defendant sufficient funds of the deceased with which to pay the assessment in question, no defense of forfeiture for nonpayment was available to it.”

The issue relative to the illegal demand and of the payment of such for chapter dues, while not raised by the pleadings originally filed, was raised by the evidence introduced, to which no exception was made, and therefore the complaint will be treated as amended to conform to the proof.

It will be noted that the learned trial judge made no specific findings of fact or declarations of law, and for that and the further reason that, from an inspection of the record, a question of law only was involved,- we think the second assignment of error was as definite as the judgment would permit, and sufficient to bring the entire case before this court on review.

The payment of the premiums on the several monthly due dates after October 1, 1926, were not made, but of this appellee cannot complain, for, having refused to accept same when tendered, and declaring the policy forfeited, any tender thereafter would have been futile. However, the dues for the month of November and December, 1926, at $9.95 each, and those for January to and including* September, 1927, at $10.70 each, are now due appellee. .

Prom an inspection of the constitution and by-laws of the company we have concluded that it is a “fraternal benefit society,” and not subject to- the penalties prescribed by § 6155, C. & M. Digest, for failure to pay claims due by it, nor liable for an attorney’s fee in this case.

In view of the conclusions reached, the judgment of the trial court must be vacated, and the facts on the question we deem important and decisive of this case having been fully developed and undisputed, the clerk of this court will ascertain the amount due appellants from the amount named in the policy, plus $4.30 balance of chapter dues remaining in hands of appellee, deducting November and December dues, 1926, at $9.95 each, and monthly dnes from and including January to and including ¡September, 1927, each for the sum of $10.70, and ■will enter judgment for the balance, with 6 per cent, interest from 'September 20,1927, until paid.


author: Hart, C. J.,

text:
    Brierton v. Anderson.
    Opinion delivered October 7, 1929.

      Joseph Morrison, for appellant.

      M. F. Elms, for appellee.
   Hart, C. J.,

(after stating the facts). The first assignment of error is that the court erred in giving at the request of the plaintiff instruction No. 1, which reads as follows:

“The court instructs you that, if you find from all the evidence in this case, the plaintiff met and complied with each and every obligation and condition laid on him by the contract here sued on, by delivering to defendant one Glade dredgeboat or excavator of caterpillar traction, in good, merchantable condition, with the shovel thereon repaired so as to be in good working condition, at the place specified in said contract, or at such other place as the defendant may have, after the execution of said contract, have directed or requested the delivery thereof, if you also find that he later requested its delivery to a different place .than specified in the contract, within a reasonable time, and you further find it was free of liens, and was for a period of two- days by plaintiff demonstrated as required by said contract, at a place specified by defendant, and you further find that on said demonstration it met with all the conditions of said contract with reiference to its working condition, then you should find for the plaintiff for such amount as you find due him upon said contract. ’ ’

Counsel for defendant now contends that this instruction misled the .jury into thinking that it was only necessary to find that the shovel on the machine must have been in good working condition under the terms of the contract in order to warrant a recovery in favor of the plaintiff. We do not think so. The plain meaning of the instruction is that the whole machine, including the shovel, should be in good merchantable condition. If counsel for the defendant thought that the instruction was calculated to confuse or mislead the jury in the respect now complained of, specific objection should have been made to the instruction, and doubtless the cour.t would have changed it to meet the objection of the defendant.

It is next insisted that the evidence is not legally sufficient to support the verdict. In the first place, it may be said that the contract of sale was in writing, and a warranty of the condition of the property sold cannot be incorporated in the written contract by parol evidence. This court has also held, that .the sale of a secondhand article carries no implied warranty as to the quality, condition or fitness for the purpose intended of such article, and this is especially true where the property is subject to inspection at the time of the sale. Kull v. Noble, 178 Ark. 496, 10 S. W. (2d) 992, and Old City Iron Works v. Belmont, 177 Ark. 223, 7 S. W. (2d) 772, and cases cited.

The undisputed testimony shows that Brierton saw the dredgeboat, and inspected it before he executed the written contract (for the purchase of it. The testimony for the plaintiff shows that the machine was repaired, and was in good working order at the time it was delivered to the defendant. The plaintiff specifically testified that the shovel or bucket was in good working condition at the time of its delivery. According to the evidence for the defendant, he refused to pay for the dredge-boat, because of its defective condition at ,the time of the delivery. This disputed issue was submitted to the jury under proper instructions, and the question was settled in favor af the plaintiff by the verdict of the jury.

There being evidence of a substantial character to support the verdict, we cannot disturb it on appeal. Therefore the judgment will be affirmed.


author: Smith, J.

text:
    Drew Gravel Company, Inc., v. Stell.
    Opinion delivered October 7, 1929.

      O. A. Featherston, for appellant.

      Tom Kidd, for appellee.
   Smith, J.

On August 31, 1923, G. L. Gideon executed a lease to A. S. Drew, which permitted Drew to mine and remove sand, g-ravel and clay from certain lands owned by Gideon, in Pike County. This contract was amended by the parties on October 1, 1923, and the amended contract was assigned by Drew to a corporation organized and managed by Drew, and known as the Drew Gravel Company, Inc.

A disagreement arose about the operation oif the gravel pits, and,the payment of the rents and royalties provided for in the lease, and on April 24, 1925, the lease contract was further amended whereby it was provided that a monthly rental of $50 should be paid, whether the gravel pits were worked or not, but, if worked in any month, this rental should be credited on the royalties due for that month, if they exceeded $50.

A suit was brought fey Gideon, in which a decree appears to have been rendered in August, 1928, but neither the pleadings in that case nor the decree pronounced therein were offered in evidence in this suit, which was commenced by filing a complaint on October 8, 1928. There appears in the record in this case a stipulation between opposing counsel to permit testimony taken in the former case to be read in evidence in the instant case.

The original lease provided that the rights conveyed therein should cease, and the lease be forfeited, if operations were not conducted thereunder for as much as ninety consecutive days, and this provision was not changed by the amendments. The complaint in the instant case alleged a failure to operate as required by the lease, and prayed its cancellation on that account. It also alleged the failure to pay rents for the months of April, May, June, July and August, 1928, and prayed judgment for $250.

Upon final submission the relief prayed was granted, and this appeal is from that decree.

For the reversal .of this decree, it is insisted that the former decree is conclusive of the issues here raised. But we cannot agree with counsel in this contention, for the reason, as stated, that the identity oif the issues is not made to appear, nor does it appear that the decree rendered was a final one which disposed of the issues, whatever they may have been. The first suit may have been for the rents in arrears at the time that suit was begun, and that date is not disclosed, and there is no intimation that a cancellation of the lease was prayed in the first suit. Whatever the nature of the first suit may have been, the testimony now before us on the part of the plaintiff shows a continuous failure to operate the lease for more than ninety consecutive days, and the lease provides for a forfeiture in that event.

It is insisted that, although cause for the forfeiture of the lease and its cancellation was given, through the nonpayment of the rent, and'"the failure to mine the gravel, it would be inequitable to grant this relief,, for the reason that no demand for the rent was made, and the managing officer of the appellant company testified that he had agreed with Gideon for the latter to draw drafts each month through a local bank, and which would have been paid had they been presented, but which were not drawn or presented. Gideon had died before the trial, and this testimony was not directly controverted, but neither the original lease nor the amendments thereto provided for payment in this manner, and the insistent and peremptory letters which Gideon wrote during his lifetime, which appear in the record, make it very clear that Gideon had no intention either to remit or to postpone these payments. Several of these- letters announce the intention of declaring a forfeiture, and of canceling the lease if the payments were not promptly made, and there is nothing in the record to justify the belief on the part of the officers of the corporation that any indulgence would be given if the rents were not paid.

It is admitted that for five consecutive months the. plant had not been operated, nor had the rent been paid, the payment of which would have avoided the forfeiture, and the right to cancel the lease existed unless it had been waived; and we think the court was warranted in finding that there had been no waiver. It is true that the lessee, in its answer, offered to pay the past due rents; but, if the right to cancel had then accrued, this right was not destroyed by the belated tender.

We find nothing in the record to support the plea of res judicata in 'bar of this action, nor any conduct on the part of the lessor which would warrant the finding that he had waived the right given by the lease to cancel it for the nonpayment of the rents.

The decree must therefore be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Missouri Pacific Railroad Company v. Bushey.
    Opinion delivered October 7, 1929.

      N. F. Lamb, Gordon Frierson and Thos. B. Pryor, for appellant.

      Pace & Davis, for appellee.
   Humphreys, J.

Appellee, administratrix of the estate of George M. Bushey, deceased, brought this suit under the Federal Employers’ Liability Act (45 U. S. C. A. §§ 51-59) against appellant in the circuit court of Poinsett County, to recover damages in the sum of $75,000 for the benefit of herself and minor son, Marion F. ’Bushey, on account of the injury and death of her husband, a railroad engineer in the employment of appellant at the time, through its alleged negligence in allowing the railroad track, about three and one-half miles north of MoGehee, to become so unsafe that it failed to support the locomotive which her intestate was operating in pulling train No. 102, in use in .transportation of express and passengers from Louisiana to Arkansas and other States.

Appellant filed an answer, denying the alleged negligence, and attributing the injury and death to the act of a miscreant in disconnecting a rail, and moving the south end thereof toward the center of the track, which caused the derailment of the locomotive, and two of the cars and a coach'; and pleading assumed risk on the part of her intestate as an affirmative defense.

‘The cause was submitted to the jury upon the issues of alleged negligence and assumed risk, with directions as to elements and measure of damages, contingent on liability, which resulted in a verdict and consequent judgment in favor of appellee for $48,500, from which is this appeal.

Appellant contends for a reversal of the judgment upon the alleged ground, that .the undisputed testimony reflects that the proximate cause of the injury to appellee’s intestate, resulting in his death, was the disconnection of a certain rail, and the removal of the south end thereof about eighteen inches west toward the center of the track, by an unknown miscreant, and that the derailment of the locomotive and said cars and coach did not result from the unsafe condition of the track.

, The wreck occurred about midnight of September 13, 1926, some three and ona-half miles north of McG-ehee. Thirty-five minutes before the wreck occurred another train had passed over the track at this point safely, running thirty-five or forty miles an hour. At the time of the wreck the train was traveling north, and after bending a part of the rails and tearing most of the ties literally to pieces for a distance of three hundred feet, the locomotive, detached from the mail and baggage cars and chair coach, and leaving them almost demolished in various positions on the track, was found, on the east side of the track, partly east of the right-of-way fence, lying on its left side, emitting hot water and steam, beneath which appellee’s intestate was caught and tightly held by his legs for about three hours before they could release him, during which time the hot water and steam blew into his face, and put out his eyes. Immediately after being released he died from the effects of the injuries received. During the entire time he was pinned under the locomotive his suffering was intense. He .was conscious, and continually called on those present for help and assistance to get out. The two sleepers or Pullmans at the rear of the train were uninjured, the front wheels of the first one being on the ground and the back wheels on the rails, and the second one standing on the track in a normal position.

The superintendent, roadmaster and other officials and employees came out from McGehee to the scene of the wreck, and, a short time thereafter, set about to ascertain the cause of the wreck. They discovered a detached or disconnected rail under the front Pullman, with the south end thereof moved eighteen inches or more toward the center of the track, and they, as well as other parties present, testified that the rail was straight, sitting upright, pulled several feet forward, and attached or 'connected to the bent rail in front oif it; that the angle-bars, bolts, washers and taps were lying near and around the place where they had been detached from the rail south or back of it; that the threads on the taps and bolts were bright, and all .of them uninjured, indicating, t’o their minds, that the taps had been unscrewed, and that the bolts, angle-bars and washers had been removed by some person. The spikes had all been removed on the inside of said rail, but not on the outside,' with a claw-bar which had left its print on the ties. Tools which would have been used to disconnect the rail and pull the spikes were found hidden between some logs a short distance from the right-of-way. The plates on the seven ties upon which the rail had rested disclosed evidences of wheels having passed over them, but the seven ties themselves were left uninjured. The rails in front or north of these seven ties were bent, and the ties for a distance of three hundred feet were demolished. The east rail immediately in front of the disconnected rail was turned on its side, and had marks upon it, indicating, to the minds of appellee’s witnesses, that the locomotive and other cars were derailed at that point. Sand had been sprinkled on three or four rails on the south of the displaced rail, all of which were still in alignment, and in place.

Appellant concedes that the testimony introduced by appellee showed that the track where the rails were bent and ties demolished by the locomotive, two cars and chair coach, was in bad condition. This concession was based upon the testimony of witnesses introduced by appellee, who testified" that this portion of the track, as well as the portions thereof for a long distance to the north and south, were out of repair and unsafe on account of rotten ties and loose spikes holding down the rails; that a large number of new ties had been scattered by the side of the track at the point of the wreck and a considerable distance each way, for the purpose of repairing the track. Appellant argues that, notwithstanding the concession it makes, the testimony does not contradict its testimony to the effect that, before reaching the bent rails and demolished ties, the locomotive, cars and coach between it ran off the rails onto the ties at the place where the rail was disconnected, and moved toward the center of the track, and that this was the cause of the commencement of the wreck, and necessarily the cause of the death of appellee’s intestate.

This would be a conclusive argument against liability of appellant if the physical facts testified to by its witnesses were entirely undisputed. The condition found and testified to by them is disputed by physical facts testified to- by appellee’s witnesses. According to the testimony of the witnesses introduced by appellee, the rail which was turned and bent was immediately in front off the first Pullman. The testimony disputes that of appellant to the effect that it began with the displaced rail. The physical fact that the seven ties under the displaced rail were not demolished by the locomotive, cars and coach, just as the ties were north of the seven ties, also disputes the physical fact that the bolts had been unscrewed and rail moved before the train arrived at that point. It is almost inconceivable that a locomotive of perhaps one hundred tons weight and two cars and a coach could have dropped, while rapidly moving, off of a rail onto the ties, and not have displaced them, when the same locomotive, cars and coach, necessarily with a little less speed, had demolished and displaced the ties and bent the rails immediately north and in front of the seven ties which escaped injury or displacement from such rough treatment. The jury may have reasonably concluded that the physical condition relative to the displaced rail, bolts, washers, angle-bars and taps found and testified to by appellant’s witnesses did not exist at the time the locomotive, cars and coach passed over the space occupied by the seven ties. Appellant argues, however, that it must have existed, (because corroborated by its witnesses, who testified that, before reaching that particular point, the emergency brakes were applied and sand dropped on three or four rails .just south of the displaced rail. The track was straight at the point where the wreck occurred for a long distance each way. If the condition existed, the jury may have found that the engineer and fireman could have discovered the displaced rail in ample time to have stopped the train before reaching it. The reasonable conclusion is that they would have done so, as it was their duty to keep a lookout, as well as for their own protection to do so. The emergency brakes may have been applied and sand dropped on the rails for other reasons. It may be that they saw something further ahead on the straight track that caused the engineer to do this, or something may have happened to the engine which impelled him to do it.

Again, it is highly improbable that an unknown miscreant would have disconnected the rails for the purpose of wrecking a train, and endangering the lives of a great many people. The record is silent as to the motive on the part of any one for committing such an act. • There was therefore a dispute in the testimony as to what caused the wreck, and ample testimony in the record of a substantial nature to support the verdict of the jury, to the effect that the proximate cause of the injury and death of appellee’s intestate was the unsafe condition of the track. It cannot be said, in arriving at the verdict, that the jury arbitrarily discarded or rejected the testimony of appellant’s witnesses relative to the displacement of the rail by a miscreant. The testimony was weighed, found wanting in reason, and rejected because contradicted by the evidence of a substantial nature tending to establish a reasonable and certain conclusion as to the cause of the wreck. The court did not err in refusing to peremptorily instruct a verdict for appellant in the case.

Appellant also contends for a reversal of the judgment because five of the jurors who tried the case had not assessed for the payment of a poll tax, although each had paid same, and because all answered upon their voir dire, at the commencement of the term, that they were qualified electors of Poinsett County. Under statute as well as the practice in this State, it is too late, after the rendition of a verdict, to raise the ineligibility of a juror to serve, unless it can be shown by the complaining party that diligence was used to ascertain his disqualification, and prevent his selection as a juror. Crawford & Moses’ Digest, § 6343; Casat v. State, 40 Ark. 515; James v. State, 68 Ark. 464, 60 S. W. 29; Teel v. State, 129 Ark. 181, 195 S. W. 32; Doyle v. State, 166 Ark. 505, 266 S. W. 459. In the instant case diligence was nor shown. The contention of appellant for a reversal of the judgment! upon this ground is without merit.

Appellant also contends for a reversal of the .judgment, because the trial court instructed the jury that nine of them could return a verdict. Appellant argues that the amendment to the Constitution authorizing nine jurors to render a verdict in a civil case did not become effective as a part of the Constitution until the favorable vote thereon by the people at the general election held October 6, 1928, was reported to the Speaker of the House in January, 1929, and declared adopted by him. This is the rule applicable to constitutional amendments which do not provide when they shall go into effect, but if the time is fixed in the amendment itself when it shall go into effect, that time controls. The amendment in question stated, that it should be self-executing, and go into effect immediately upon its adoption by the electors of the State. The question raised was raised and decided adversely to appellant’s contention herein in the recent case of Matheny v. Independence County, 169 Ark. 927, 277 S. W. 22. The trial court did not err in instructing the jury that nine members thereof, if agreed, could render a verdict in the case.

Appellant also contends for a reversal of the judgment for the alleged reason that instruction No. 1, given by the court at the request of appellee, submitted an issue of whether or not appellant had failed or neglected to inspect the track where the wreck occurred, whereas the only issue of negligence alleged, and in the case, was the allegation that appellant had permitted its track to become defective and insufficient, thereby causing the locomotive and cars to be derailed. We do not so interpret the instruction complained of. The purport and effect of the instruction was to tell the jury that they could not return a verdict for appellee unless they found that the track was defective and insufficient, and that appellant either knew of the defective condition of the track, or could have known that fact by making a reasonably careful inspection. The instruction, as we read it, limited the jury to the sole issue of whether the wreck and consequent injury and death resulted on account of the unsound condition of the ties, and rails insecurely fastened thereto. The instruction was a correct declaration of the law applicable to the facts, and no error was committed in giving it to the jury.

Appellant also contends for a reversal of the judgment, because the court refused to give its requested instruction No. 4-A on.assumed risk. The court gave instruction No. 4 requested by appellant upon the same subject, but it is argued that instruction No. 4-A went further by stating that: While an employee does not necessarily assume the risk of injury on account of negligence on the part of the employer, yet, if in this case the defendant (appellant) was negligent in permitting its track to get in bad condition, and Bushey, knowing of this condition, continued in the service, appreciating the danger, then he would assume the risk of being injured on account of such conditions.” The statement referred to in instruction No. 4-A was fully covered by instruction No. 6 given by the court at the request of appellee, when read in connection with instruction No. 4 given by the court, which was requested by appellant. Useless duplications in instructions tend to confuse rather than help the jury, so trial courts are not required to multiply instructions oif like tenor and effect. The court did not err therefore in refusing to give appellant’s requested instruction No. 4-A.

Appellant also contends for a reversal of the judgment because the conrt refused to amend instruction No. 1 on the measure of damages, given by the court at appellee’s request, so as to negative a recovery on account of grief or bereavement experienced by appellee and her son, or for loss ¡of companionship and society of appellee on account of the death of her husband, but that the damages sustained, if any, should be confined to the pecuniary loss. The instruction as given by the court confined the damages, if any, which might 'be awarded, to a fair and reasonable compensation for the loss of pecuniary benefits they might have received had their intestate lived, as shown by the evidence, after reducing the amount to its present cash value, and to such further sum as the preponderance of the evidence might disclose would compensate them for the physical pain and mental anguish which their intestate endured in the interim from the time of his injury until his death. The restriction of damages which might be awarded to loss of pecuniary benefits was a clear, positive direction to the jury of every element they might include, and every element .they must exclude in arriving at the amount of damages sustained. Any one of ordinary intelligence would understand from the limitation that appellee and her son could not have received money (pecuniary) benefits from grief, bereavement, deprivation of companionship or society. There was no necessity of negativing such elements of damages, because they were clearly excluded by necessary implication in the instruction given. The failure to amend the instruction as requested had no tendency to mislead the jury, so the court did not err in refusing to add the requested amendment thereto.

Appellant also contends for a reversal of the judgment, because the court refused to give its requested instruction No. 7, which is as follows:

“The court instructs you that if the evidence fails to establish by a fair preponderance thereof that the injury and death of the deceased was due to defendant’s negligence, as alleged in the complaint, or that it is equally probable that the injury and death of the deceased were due to the criminal acts of an outsider by moving a rail of the track out of alignment, for whose act the defendant would not be responsible, then, in such event, your verdict should be for the defendant.”

The jury was plainly told in other instructions given by the court, that appellee could not recover unless the preponderance of testimony reflected that the injury and death of appellee’s intestate resulted from the defective condition of the track, nor if they believed from the evidence that the injury and death of her intestate resulted from the detachment and removal of a rail in the track by some person. These instructions which were given by the court squarely presented the same issue to the jury which instruction No. 7 would have presented had it been given. The court did not err therefore in refusing to give said instruction.

Appellant also contends for a reversal of the judgment, because the verdict was excessive. It is argued that, because appellee’s intestate was 53 years of age, and only suffered for three hours from the time of the injury until his death, that the jury, in arriving at the verdict, necessarily considered other elements of damage than those which could be measured by a money standard. This conclusion does not necessarily follow, for, the present cash value of the pecuniary loss to appellee and her son,- ascertained on the basis of the legal rate of interest in this State, and under or in accordance with the rule laid down by the Supreme Court of the United States in the case of Chesapeake & O. R. Co. v. Kelly, 241 U. S. 485, 36 S. Ct. 630, would be $39,037. The expectancy of appellee was 18.79 years, and he was earning a salary of $3,600 a year, all of which he contributed to the support of appellee and his minor child, except $340 a year. The verdict was for the gross amount of $48,500, and it is therefore impossible to tell the exact amount awarded for the loss of benefits, and that awarded for pain and suffering of appellee’s intestate. If the present cash value of the loss of future contributions be deducted from the total award, the jury awarded $9,463 for pain and suffering of appellee’s intestate. Considering the intensity and duration of the suffering of the intestate, it cannot be said that a verdict for even very much more than said amount would be excessive. If the present cash value of the amount of total loss of contributions to appellee and her son should be figured on a basis of a lower rate of interest for the use of the money than six per cent, per annum, it would proportionately increase the present oash value thereof, and reduce the amount of the award for pain and suffering. We do not think, under the testimony in the case, that the total amount of the verdict for the loss of contributions and for the pain and suffering of appellee’s intestate was excessive.

No error appearing, the. judgment is affirmed.


text:
    Hulbert Special School District v. Cooper.
    Opinion delivered October 7, 1929.

      Berry, Berry & Berry, for appellant.

      8. V. Neely, for appellee.
   Humphreys, J.

This is an appeal, under § 10,028 of Crawford & Moses’ Digest, from an order of the circuit judge in vacation affirming the approval of the collector’s bond by the county court of Crittenden County on December 12, 1928. The bond filed and approved on that date was in regular form, signed by the sheriff and four sureties, each of whom made affidavit to the effect that they were residents of Crittenden County, Arkansas, and each worth over $250,000 in real and personal property above his liabilities and exemptions. The affidavits did not state the amount of real estate and its value,' nor the amount of the personal property and its value that each owned, and that same was subject to execution. In these respects it failed to. comply? with § 8076 of Crawford & Moses’ Digest. The circuit judg-e permitted the affidavits to be amended to meet these requirements before finally approving the bond on appeal. The bond contained the following conditions;

“Now, if the said Claud W. Cooper shall faithfully perform the duties of collector of revenue for the county? aforesaid for the year 1928, and shall well and truly pay over within the times prescribed by law, to the proper officer designated ¡by law to receive the same, all moneys collected by him, etc., etc., then this bond shall be void, otherwise to remain in full force and effect.”

Appellants herein, who were -not parties to the proceedings in the county court when said bond was approved, upon application to the county court were made parties on May 17, 1929, and granted an appeal to the circuit court in vacation. In their petition to be made parties to the proceedings for the purpose of appealing from the order approving the bond, they alleged that the bond was void: First, because the affidavits of the sureties did not comply with the requirements of § 8076 of Crawford & Moses’ Digest; second, that the bond was for the year 1928 instead of 1929; and third, that the penalty of the bond was insufficient. Other allegations were made attacldng the bond, but these are the only ones insisted upon 'by appellants for the reversal of the judgment of the circuit judge. Appellee, however, contends that this appeal should be dismissed without passing upon the validity of the bond, because appellants were not parties to the county court proceedings when it approved the Bond, and did not go into said court at the time and object to the approval of the bond.

This is not an appeal under the general statute, § 2287, Crawford & Moses’ Digest, but under § 10028 of Crawford & Moses’ Digest, which states that “any person may, when he deems the security on said bond insufficient, appeal to the circuit court of the proper county, if in session, if not, to the circuit judge in vacation, from the order of the county court, or act of the county judge in vacation approving said bond” * * *. There is a marked difference between the statutes, the latter being much broader than the former, extending the right of appeal to any person who has an interest in the lawsuit, even though not a party to the proceeding, and even though he made no objection to the approval of the bond at the time. We also think and hold that school and drainage districts are persons within the meaning oif the statute, and had a right to appeal from the county court judgment, and the judgment of the circuit judge in vacation.

We now proceed to a consideration of the objections made to the validity of the bond.

(1) . Until the act of March 31, 1883, collectors’ bonds were executed and approved like the bonds of other county officers in accordance with the requirements of the acffc of March 1, 1875, §§ 8076 to 8085 of 'Crawford & Moses’ Digest; but on that date the Legislature enacted a separate and independent act governing the execution and approval of collectors ’ bonds, and prescribing their duties and liabilities. It was a complete act within itself, and repealed all acts in conflict therewith. The act of March 1,1875, required that affidavits be filed by sureties stating, in addition to other requirements, the amount of the real estate and its value, the amount of the personal property and its value, owned by each surety, and that said property was subject to execution, but the latter act, or act of March 31,1883, relative to collectors ’ bonds, required no affidavit at all relative to the property owned by the sureties. As no affidavits were required at all by the sureties on collectors’ bonds after the passage of the act of 1883, the collector’s bond in question was not void, because the affidavits filed by the sureties did not comply with the requirements of the act of March 1, 1875.

(2) . We do not construe the collector’s bond in question as a guaranty for the faithful performance of his duties for the year 1928, and the accounting of taxes collected by him during said year. The revenues referred to in the bond as revenues of 1928 necessarily were the taxes assessed in 1928 which were to be collected in 1929. The contention of appellant that the bond did not cover taxes which the collector should and did collect in 1929 that were assessed in 1928, is contrary to the holding of this court in the case of Moose v. Bartlett, 169 Ark. 963, 277 S. W. 340. The bond was filed and approved in ample time, as the collector’s term of office did not begin until January 1, 1929, for the collection of the 1928 revenues.

(3) . The penalty in the bond was $550,000, more than one and one-fourth times the amount of the State, county, city and school district taxes charged against the collector on the abstract of the taxibooks of Crittenden County, which abstract was introduced as evidence by agreement. It was not one and one-fourth times the amount charged against him if the special improvement district assessments should be included, as they alone amounted to $209,935.59, which, added to the taxes charged against him for the purposes aforesaid, would exceed the penalty of the bond. It is true that the duty of collecting these taxes was superimposed upon the collector, but the statute placing" this duty upon the collector did not increase the penalty of his bond. It was ruled in Moose v. Bartlett, supra, that the bondsmen were liable for any default in collecting these assessments, although no increase in the penalty on the bond was required. The penalty of the bond in question was therefore sufficient.

No error appearing, the judgment is affirmed.

Kirby, J., dissents.


author: Kirby, J.,

text:
    Board of Directors of St. Francis Levee District v. Hagan.
    Opinion delivered October 7, 1929.

      Maim $ McCulloch, for appellant.

      W. D. Gravette, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists that there was such an unreasonable delay in the presentation of the check by appellee for payment to the bank upon which it was drawn, and wherein it had funds on deposit sufficient to cover it, as to cause the loss to fall on appellee and discharge it from liability thereon.

It is true a check must be presented for payment within a reasonable time after its issue, or the drawer will be discharged from liability thereon (§ 7952, C. & M. Digest), but what is a reasonable time will depend upon the circumstances of the particular case, the rule generally requiring that it be presented within banking hours not later than the day following its receipt by the payee, where he resides or does business in the same town where the bank on which the check is drawn is located. Burns v. Yocum, 81 Ark. 127, 98 S. W. 956; Pelt v. Marler, 95 Ark. 111, 128 S. W. 554; Federal Land Bank of St. Louis v. Goodman, 173 Ark. 493, 292 S. W. 659; Geo. H. McFadden Bros. Agency v. Keesee, 179 Ark. 510, 16 S. W. (2d) 1001.

Appellee had directed, however, that the money for the purchase price of the lands sold and conveyed by him to the district be paid to B. F. Gay, the mortgagee, and had no reason to think that it had not been done until he received notice from Gay’s letter, after the bank had failed, to come in and indorse the check, which had been made payable to his order as well as Gay’s. Nothing could be done, after receipt of the notice of the check’s being made payable jointly to his order, about its indorsement or collection, before the bank, which failed before the letter was written, had closed its doors. Gay was not his agent to receive the check, and appellee was in no wise negligent in the failure of presentation of it for payment, having had no knowledge that the check had not been made payable to Gay, as was directed should be done.

The court correctly directed a verdict in appellee’s favor, and the judgment must be affirmed. It is so ordered.