author: Humphreys, J.

text:
    Davis v. State.
    Opinion delivered November 14, 1921.
    1. Rape and carnal abuse — evidence op unchastity op prosecutrix. — Upon a prosecution for carnal abuse, it was not competent for defendant to prove that the prosecuting witness had had sexual intercourse with some person other than defendant, as her chastity was not involved in the charge.
    2. Witnesses — impeachment as to collateral matter. — Evidence of specific instances of immorality of the prosecuting witness in a prosecution for carnal abuse is not admissible as affecting her credibility, because it relates to matters collateral to this issue.
    3. Witnesses — impeachment as to collateral matter. — While it is proper to permit a witness to be asked as to specific acts affecting his credibility, yet, if such matters are collateral to the issue, he can not, as to his answer, be contradicted subsequently by the party putting the question.

      4. . Criminal law — abstract instructions. — Where there was no evidence upon which to base an instruction as to credibility of the prosecutrix in a prosecution lor carnal aouse, there was no error in refusing such instruction.
    5. Criminal law — invited error. — Where defendant’s attorney went out oí tne recora in making a certain argument, a statement by the prosecuting attorney in reply that defendant’s attorney had previously taken a different position was invited error.
    6. Criminal law — argument of attorney. — It was not error in a criminal case to permit tne prosecuting attorney to say to the jury that “the jurymen are the ones that enforce the law; and if the people know the law is not enforced, the law is going to be violated.”
    7. Criminal law — instruction—credibility of accused. — While the practice of declaring the law relative to the credibility of an accused separate from that of the other witnesses is not commended, it is not reversible error.
    Appeal from Sevier Circuit Court; James 8. Steel, Judge;
    affirmed.

      Lake & Lake, for appellant.

      J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    Instruction 1 given by the court, correctly declared the law. C. & M. Dig. § 2720. Its instructions 2, on the credibility, of witnesses, and 3, relative to the credibility of the appellant as a witness, were correct. This court will not reverse because the credibility of the defendant is made the subject of a separate instruction.
    There was no proof on which to base instruction 5 requested by appellant. It was not error to refuse it. 21 Ark. 69; 23 Id. 731; 217 S. W. (Ark.) 779.
    Instructions should not be based on rejected testimony. 14 Ark. 286; 21 Id. 370; 23 Id. 101. The reputation for chastity of the female is not involved in a prosecution for carnal abuse. 15 Ark. 624; 72 Id. 409; 103 Id. 119.
    Evidence of specific acts of immorality of the prosecuting witness was not competent; it was in no sense a defense against the charge. 72 Ark. 409; 15 Id. 624; 84 Id. 16; 103 Id. 119.

      There was no error in the argument. If so, it was invited. Moreover, appellant did not request its exclusion. 84 Ark. 128. Prosecuting attorneys have the right to appeal to the jury to do its duty. 106 Ark. 131.
   Humphreys, J.

Appellant was indicted, tried and convicted in the Sevier Circuit Court for the crime of carnal abuse, and as punishment therefor sentenced to serve a period of two years in the ¡State penitentiary. Prom the judgment of conviction an appeal has been duly prosecuted to this court.

According to the evidence adduced in behalf df the State, appellant had sexual intercourse with Nina Olmstead, a female under the age of sixteen years, on the night of the 26th day of April, 1920, in his home where she was employed to wait upon appellant’s wife during her illness occasioned by childbirth.

In the course of the trial the court refused to permit appellant to show by other witnesses specific acts of immorality of the prosecuting witness, Nina Olmstead, with other men, because the State had not put the chastity of the prosecutrix in issue, to which ruling of the court an exception was saved. Bearing upon this particular question, appellant requested instruction No. 5, which was refused by the court, to which ruling appellant also saved an exception. Appellant’s requested instruction No. 5 is as follows:

“"While it would be no defense which would justify or excuse the defendant if other men- had been criminally intimate with the prosecuting witness, this fact, if you should find it to be a fact, should be considered as it might tend to discredit or impeach the testimony of the prosecuting witness and render her unworthy of belief.”

The court also ruled that, if appellant interrogated the prosecuting witness in reference to specific acts of intercourse with other men. upon cross-examination for the purpose of discrediting her, he would be bound by her answers, to which ruling an exception was saved. The court gave a number of instructions to which general objections were made and exceptions saved by appellant.

The refusal of the trial court to permit appellant to show by other witnesses specific acts of immorality of the prosecuting witness was correct. Her chastity was not involved in the charge, and such proof would not have been responsive to the issue. Pleasant v. State, 15 Ark. 624; Plunkett v. State, 72 Ark. 409; Renfroe v. State, 84 Ark. 16; Peters v. State, 103 Ark. 119.

It is not admissible as affecting the credibility of the prosecuting witness because it related to matters collateral to the issue. McAlister v. State, 99 Ark. 604.

The holding of the trial court to the effect that appellant would be bound by the answers of the prosecuting witness on cross-examination with reference to specific acts of intercourse with other men was correct. The questions and answers related to collateral matters. This court held in the case of McAlister v. State, supra (quoting syllabus): “While it is proper to permit a witness to be asked as to specific acts affecting his credibility, yet, if such matters are collateral to the issue, he cannot, as to his answer, be subsequently .contradicted by the party putting the question.” The refusal of the court to give appellant’s requested instruction No. 5 did not constitute reversible error because it was abstract. There was no evidence in the record upon which to base the instruction.

During the progress of the trial, the prosecuting attorney, over the objection and exception of the appellant, was permitted to say: “I remember Judge Lake, in Howard County,' stating there that a girl had been seduced, and he was representing the State in the case, and claimed it only happened one time, and that standing up, and she and the boy living in the same community, and it was never repeated again, and the jury believed him.” Judge Lake, while making his argument in defense of appellant, made some remarks tending to show the improbability of sexual relations having occurred between appellant and the prosecuting witness as testified to by her. These remarks related to matters outside of the record. The statement made by the prosecuting attorney was an attempt to answer these remarks. The error, therefore, if any, was invited error.

The prosecuting attorney was also permitted, over the objection and exception of the appellant, to say to the jury that ‘ ‘ the jurymen are the ones that enforce the law, 'and if the people know the law is not enforced, the law is going to be violated.” We do not think error was committed in permitting the prosecuting attorney to make the statement. It was ruled in the case of McElroy v. State, 106 Ark. 131, that “prosecuting attorneys have a right to appeal to the jury to do its duty in the punishment of heinous crimes.” The statement simply emphasized the necessity of enforcing the law if it had been violated.

We have carefully examined the several instructions given by the court, and are unable to discover any reversible error in them. No. 1 defined the crime for which appellant was indicted in accordance with section 2720 of Crawford & Moses’ Digest, and, in substance, instructed that the jury should convict appellant if convinced beyond a reasonable doubt that he had sexual intercourse with the prosecuting witness in the county within three years before the filing of the indictment. Instruction No. 2 announces the correct rule of law relative to the credibility of witnesses. No. 4 gave a proper definition of the term “reasonable doubt.” Instruction No. 3 instructed on the credibility of appellant, who testified in his own behalf. While the practice of declaring the rule of law relative to the credibility of an accused separate from other witnesses is not commended, the court has ruled that it is not reversible error to do so. Vaughan v. State, 58 Ark. 353.

The judgment is affirmed.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Road Improvement District No. 1 v. Cooper.
    Opinion delivered November 21, 1921.
    Appeal and error — final order. — An order granting an injunction in a case until a similar case pending in another court shall be determined is interlocutory and not final.
    Appeal from Hot Springs Chancery Court; J. P. Henderson, Chancellor;
    appeal dismissed.

      L. E. Sawyer and Wm. R. Duffie, for appellant.
    The decree entered in this case is a final one from which an appeal will lie. There is a substantial denial of justice on the part of the trial court, which held, in effect, that it is without jurisdiction to determine the issue presented until the Federal court has done some act or other. The right of appeal falls squarely within the second and third paragraphs of § 2129, C. & M. Digest. The determination of the issues should be first by the State court rather than the Federal court. Sec. 1031, Barnes’ Federal Code. The denial of the motion to dissolve the injunction was a final order. 14 R. C. L. p. 336.
    The proof shows that the assessment was fully completed before the filing of any suit, and the chancellor was in error in holding otherwise.
    Appellees are estopped to ask an injunction as they did not appear at the proper time and make complaint of their assessments. 139 Ark. 277; 139 Ark. 322.
    In view of the statute requiring a speedy determination of issues raised, the order made is a final one, denying substantial justice.

      D. D. Glover, John L. McClellan and Henry Berger, for appellees.
    The decree was interlocutory, and one from which an appeal will not lie. A decree is final only when all the facts and circumstances material and necessary to a complete explanation of the matters in litigation are brought before the court. 34 Ark. 129; 36 Ark. 204; 100 Ark. 500.

      The taxpayers are proper parties to maintain suits against public officers to remedy misapplication of public funds, and the chancery court has power to grant affirmative as well as injunctive relief, and it is the duty of equity courts to mould a remedy for taxpayers whose interests are involved in the operation of improvement districts. 114 Ark. 299.
    Interlocutory orders are always subject to the control of the court until a final adjudication upon the rights of the parties. 40 Ark. 508. It was not possible to proceed with the case and determine the rights of all parties, with the injunction pending in the Federal court.

      L. E. Sawyer and Wm. B. Duffie, in reply.
    The lower court has abdicated its power to determine a legal right and the facts relative to whether or not the railroad property is taxable under this act, and made that the sole question upon which the whole case turns. In this respect the order entered is final. 100 Ark. 500.
   McCulloch, C. J.

The General Assembly of 1921, by special act approved February 18, 1921, (Act No. 143) created a road improvement district in Hot Spring County and named the commissioners thereof. Authority was conferred to improve a certain road or roads, to levy assessments to pay for the same and to issue bonds. A complaint was filed against the commissioners in the chancery court by an owner of real property in the district attacking the validity of the statute and seeking to enjoin proceedings thereunder. Other owners of real property in the district intervened. The chancellor granted a temporary injunction at the commencement of the action, and on July 14, 1921, the court entered an order or decree from which an appeal is prosecuted.

The finding of the court is recited in the order to the effect that in a suit pending in the United States District Court for the Eastern District of Arkansas a temporary injunction had been issued at the instance of the Missouri Pacific Railroad Company and the Chicago, Rock Island & Pacific Ry. Co., plaintiffs in the suit, temporarily restraining the commissioners of this district from collecting any of the taxes assessed on the property of said railroad corporations, which the conrt found to be at least 40 per cent, of the entire taxes assessed against the property of the district, and the order of the court was that the “temporary injunction heretofore granted by this court in this cause against Road Improvement District No. 1, and the commissioners thereof, their agents, servants and employees, should be continued until the temporary injunction issued by Jacob Trieber, Judge of the United States District Court of the Eeastern District, Western Division of Arkansas, enjoining and restraining said commissioners and their servants, agents, and employees from the collection of taxes or penalties assessed against the Missouri Pacific Railroad Company and the Chicago, Rock Island & Pacific Railway 'Company, is fully and finally determined by said United States courts, or until the further order of this court.” There was a further order that the commissioners be enjoined from attempting to enforce the payment of the taxes for the year 1921 until the further orders of the court, and that the injunction bond executed by the plaintiffs in the action (appellees) “be and remain in full force and effect.”

The first question which arises is whether or not this is a final decree from which an appeal will lie. We think that it is not such a decree, ‘and the appeal must be dismissed. An order granting or refusing a temporary injunction is interlocutory and not final. Miller v. O’Bryan, 36 Ark. 200; Ex parte Batesville & Brinkley R. Co., 39 Ark. 82. An order or decree extending an injunction for a fixed time, or until the happening of a certain event, may be final, but it appears clearly from the recitals in the decree that the court meant to continue control over the injunction grantéd in this case and over the subject-matter of the litigation. It was so declared in the decree, and the court continued in force the bond executed by plaintiff at the commencement of the action, which shows that the injunction was not intended to be permanent nor the order final; it was merely interlocutory, and remains within the control of the court. It- is argued by counsel with much earnestness that a decree of this sort may work great injury unless there can be an appeal from it. This may be true, but the authority of this court is limited by the Constitution to jurisdiction over final judgments and decrees, and we are without power, to correct errors which occur during the progress of proceedings until after there has been a final decree from which an appeal can be prosecuted. If injury results, it is one merely incident to the litigation which cannot be corrected by an appeal in advance of a final decree.

Appeal dismissed.


author: Wood, J.

text:
    Ft. Smith, Subiaco & Rock Island Railroad Company v. Lovelady.
    Opinion delivered November 21, 1921.
    1. Appeal and error — sufficiency op bill op exceptions. — Where a bill of exceptions, duly signed by the trial judge, did not contain the evidence or the instructions in the case, but merely gave direction that they should be inserted by the clerk, this was insufficient.
    2. Appeal and error — presumption.—Every presumption should be indulged in favor of the rulings of the trial court until it affirmatively appears from the record that its rulings were erroneous.
    Appeal from Logan Circuit Court, Northern District; James Cochran, Judge;
    affirmed.

      E. E. McCulloch, for appellant.
    The required notice was properly given and the fund was distributed, and a collateral attack could not be made. Black on Judgments, Yol. 1, § 251; 113 IT. S. 179; 108 U. S. 18; 130 TT. S. 482; 138 U. S. 439; 141 IT. S. 260; 144 U. S..75; 141 IT. S. 475.
    Tbonp-b a. foreclosure decree is erroneous, it cannot be attacked in the State court. 53 Iowa 202.

      The court erred iu refusing to make the persons mentioned in the motions, parties to the action. C. & M. Digest, § 1097.
    Evidence of notice to put in stock gaps should not be admitted unless service is shown. 68 Ark. 236. Stock guards as well adapted as is practicable to make them in connection with safe operation of the road is all the law requires. 71 Ark. 232.
    Where the owner stands by and sees his property sold by the sheriff without objecting, he cannot afterward assert his title. Dud. 72; 9 Ga. 23; 16 Ga. 593; 60 Am. Dec. 744 ; 65 Ga. 360; 12 La. Ann/473; 30 La. Ann. 1251; 7 Watts 163 (Pa.); 16 Cyc. 764; 16 Cyc. 765; 83-Ga. 161; 18 Abb. Prac. 3; 27 N. C. 587; 44 Ann. Dec. 63; 3 Serg. & R. 283 (Pa.); 3 Rawle 492; 10 Ark. 211; 14 Ark. 505; 18 Ark. 142; 24 Ark. 371. The acceptance of other security raises the presumption that the vendor intended to waive his equitable lien for the purchase money. 33 Ark. 240. Plaintiff had no lien on the land. 51 Ark. 285.

      Bobt. J. White, for appellee.
    A paper which constituted a nart of a bill of exceptions must be marked so it can be identified. 45 Ark. 485; 46 Ark. 482; 69 Ark. 114; 61 S. W: 372; 89 Ark. 553; 115 S.. W. 923; 20 L. R. A. (N. S.) 453.
    A stenographer’s report can be made available on appeal only by being made a part of the bill of exceptions. 65 Ark. 330; 46 S. W. 127.
    Giving a note for tbo purchase price of land is not paying for it. 51 Ark. 235.
   Wood, J.

The appellees instituted an action in the Logan Chancery Court against the appellant — the appellees J. W. Lovelady and A. Newman to recover compensation for the alleged taking of a right-of-way through their lands and damages to the severed parts and appellee J. C. Lovelady for damages to crops on account of the alleged failure of the appellant to put in safe and sufficient stop gaps, and also for damages to his land 'by reason of an alleged overflow washing the same and damages on account of the alleged failure of the appellant to maintain a dirt road-crossing in compliance with an alleged agreement to do so.

The allegations setting forth the causes of actions in the respective complaints were all denied in separate answers by the appellant. The trial resulted in judgments in favor of each of the appellees against the appellant. Each of these judgments recited as follows: “Now on this day comes on for hearing this cause, copies the plaintiff in person and Eobert J. White, his attorney, comes also the defendant, by E. H. McCulloch, its attorney, and both parties announcing ready for trial, and the cause was submitted to a jury of twelve good and lawful jurors, who, after hearing the evidence, the instructions of the court, and the argument of counsel, retired to their room to consider of their verdict and after deliberation returned into court the following verdict.” Then follow' the verdict and judgments for the amounts returned by the jury against the appellant in each case.

The transcript in this -case first sets out the pleadings. Then follows what purports to be “a bill of exceptions” showing that the causes were by consent consolidated and tried before one jury; that before the jury wás impaneled special demurrers to the complaints were filed in each of the cases, and that these demurrers were by the court ovérruled. Then follows a statement to the effect that the parties introduced the full testimony as reported by the official stenographer in the case. Then follows a deed from masters appointed by the United States District Court for the Western District of Arkansas in a case pending in that court between the St. Louis Union Trust Company and the Ft. Smith, Subiaco & Eastern Eailroad Company to the Commonwealth Trust Company, a Missouri corporation; and a deed from the Commonwealth Trust Company to the appellant. Then follow the judgments as above set forth. Then follow motions for a new trial and the orders overruling the same and an entry giving the appell ant ninety, days within which to prepare its bill of exceptions, followed by the recital, “and now comes the defendant and offers the above and foregoing as and for its bill of exceptions in all cases tried,' and asks that the same be signed and sealed and made a part of the record herein, which is accordingly done this 4th day of April, 1921.”

Then follows what purports to be another “bill of exceptions,” in which is,set forth what purports to be the testimony of the appellees and also of appellant and of other witnesses in behalf of the respective parties; and also documentary evidence consisting of certified copies of certain proceedings had before the United States District Court of the Western District in the case of Union Trust Company v. Ft. Smith, Subiaco & Eastern Railroad Company. Then follows what purports to be certain instructions given by the trial' court on its own motion and the exceptions of the appellant to these instructions. Then follows the recital showing that the causes were argued and submitted to the jury. Then follows a call for a copy of the jury’s verdict and a call for the copy of the motion for a new trial, and concluding with the recital that the appellant was given ninety days within which to prepare and file Ms bill of exceptions and that the same was presented and found correct. This purported bill of exceptions concludes as follows: “In testimony whereof, I hereunto set my hand as judge of the 15th Judicial Circuit of Arkansas and of Logan Circuit Court, northern district thereof, on this............day of............, 1921- ’ ’ This bill is not signed.

Then follows a certificate of the reporter that the above is a correct and complete copy of the evidence introduced at the trial of the above entitled cause as shown by his notes. Then follows a statement to the effect that “the foregoing bill of exceptions contains all the evidence heard or offered in the trial of the cause and all the instructions and all the proceedings had and done at the trial of the cause. In witness whereof the said counsel have hereunto set their hands this 'the ............ day of April, 1921.” The statement of counsel is left blank, unsigned.

Then follows a notation by the clerk that the above was filed for record on the 22nd day of May, 1921. Then follows a statement to the effect that the defendant requested instructions and setting them forth and noting the rulings of the court in refusing to give the prayers, and concluding with the recital that “the above and foregoing instructions, together with the instructions reported and transcribed in the official stenographer’s report of the cases, were all the instructions asked for, given or refused by either side in these several cases.” Then follows another statement to the effect that the causes, after argument, were submitted and the following verdicts returned. Then follows another recital purporting to be “bills of exceptions” icontaining a call for the clerk to copy the special demurrer interposed in each of the cases and for the clerk to copy the records, deeds, etc., which were introduced in support of the demurrers referred to.. This is followed again by a recital to the effect that the demurrers were overruled, and that the causes came on for trial, and the plaintiff in each case presented his testimony, and with a call for the clerk to insert the testimony as reported by the official stenographer. Then follows a recital that the court instructs the jury and a call for the clerk to insert the instructions as reported by the official stenographer. Then follows the recital that the causes were again submitted and the verdicts returned, and a call for the clerk to copy the verdicts in each case. Then follows a call for the clerk to copy the motions for a new trial. Then follows certain sheets containing the instructions asked by the defendant with a notation on the margin thereof, “Befused — all of them.”

•• Then follows a statement signed by the trial judge to the effect that the motions for new trials were overruled, and that the appellant saved its exceptions, was granted ninety days within which to prepare its bill of exceptions, and “offers the above and foregoing as and for its bills of exceptions in all cases tried, and asks that the same be signed, sealed and made a part of the records herein, which is accordingly done this 4th day of April, 1921.”

The' transcript concludes with a certificate of the clerk that the annexed -and foregoing pages contain a true and correct transcript of the proceedings had, signed the 3rd day of June, 1921.

It is impossible from the transcript of the record thus presented by the appellant to ascertain which of the entries was the bill of exceptions and, what it really contains. With the record in this confused condition, the appellees obtained a writ of certiorari to have the clerk of the Logan Circuit Court “certify the original bill' of exceptions as approved and ordered made part of the record by the trial judge.” In response to the writ of certiorari, the clerk has brought into the record the original bill of exceptions, which is a mere skeleton bill. It contains a call for certain records of the United States District Court for the Western District of Arkansas and certain deeds that were introduced in evidence to be copied by the clerk; and for the testimony that was introduced in the causes by plaintiffs and defendant and reported and transcribed by the official stenographer to be copied by the clerk, and for the instructions that were given by the court at the request of the plaintiffs to be copied by the clerk, and the instructions given orally by the court on its own motion to be copied by the clerk. It thus appears that the testimony and the instructions are not contained in the bill of exceptions.

In Dozier v. Grayson-McLeod Lumber Co., 100 Ark. 244, we held, quoting syllabus: “Where a bill of exceptions recited: ‘The following testimony was introduced before the court and jury, which was all the evidence introduced by either party (insert testimony),’ meaning that the clerk should insert the official stenographer’s notes of the testimony, and the certificate of the stenographer shows that the testimony was subsequently transcribed, and it does not appear that the transcribed testimony was ever presented to the circuit judge for examination, it did not become a part of the bill of exceptions, and cannot be considered on appeal.”

In the above case we said: “Before the bill of exceptions receives the signature of the judge, it must be allowed by him, and this means that it must be approved by the judge after an examination thereof and a finding by him that it is correct. The bill should be complete when it receives the signature of the judge, so that there is no further discretion relative thereto. ‘It must be its own evidence of all it contains. ’ ’ ’

The above case rules the present one. This bill of' exceptions shows that the testimony adduced by the parties and the instructions given by the court on its own motion and at the request of the appellees were not transcribed by the official stenographer and copied into the bill before the same received the signature of the trial judge. The causes were submitted to the jury upon the testimony and instructions of the court as shown by the recitals in the judgments, as well as in the “bill of exceptions.” Every presumption must be indulged in favor of the rulings of the trial court until it affirmatively appears from the record that its rulings were erroneous. No such showing is made by the record in this ease.

The judgments are therefore affirmed.


text:
    Arkansas Central Railroad Company v. Walker.
    Opinion delivered November 21, 1921.
    1. Evidence — judicial notice.- — The courts take judicial notice of the fact that in August, 1919, the railroads were being operated by the- United States through its agent.
    2. Railroads — operation by united states — negligence.—During the time in which the United States operated the railroads, the corporations which owned them were not liable for their negligent operation.

      3. Carriers — failure to furnish car for shipping cattle.— Evidence held to sustain a finding that defendant carrier was negligent in failing to furnish a car for shipment of plaintiff’s cattle.
    Appeal from Logan Circuit Court, Northern District; James Goehr am, Judge;
    reversed and affirmed.

      Thos. B. Pryor, for appellants. ■
    The court will take judicial knowledge of the fact that at the time of the accrual of plaintiff’s cause of action the .government was in charge and operating the railroads of the country. 167 N. W. Rep. 59; 170 N. W. Rep. 149; § 206, par. “A” of Act of Congress, February 28, 1920.

      Bobt, J. White, for appellee.
   Wood, J.

The appellee instituted this' action against the appellants. He alleged, in substance, that the appellant, Arkansas Central Railroad Company, at the time of the filing of the complaint, was under the direction of the agent of railroads for the United States; that the Fort Smith, Subiaco & Eastern Railroad Company was operated in connection with the Arkansas Central Railroad Company; that it was the practice of those roads for shippers of live-stock to order stock cars for destination out of this State from the Arkansas Central through the agent of the Fort Smith, Subiaco & Eastern Railroad Company at its station of Scranton, Arkansas; that on the 18th day of August, 1919, the appellee so ordered two stock cars; one in which to ship cattle and the other to ship hogs. . The shipments were to be made to Kansas City, Missouri; that the agent at Scranton placed the order for the cars with the agent of the Arkansas Central Railroad at Paris and was assured by the agent at Paris that the cars would be ordered immediately; that on the 22nd day of August, 1919, the appellee was notified by the agent of the Fort Smith, Subiaco & Eastern Railroad at Scranton that one of the' cars in which to ship the hogs had arrived at Scranton, and that the other had arrived at Paris; that the appellee had notified the agent at Scranton to notify the agent at Paris that appellee desired to ship both the car of cattle and the car of hogs at the same time and on the same train. The appellee was assured by the agent at Scranton that the cars were ready for appellee’s use. That, relying upon this assurance, on the morning of the 23rd of August, 1919, appellee loaded liis hogs into the car at Scranton to be shipped out in the afternoon and drove his cattle to Paris to be shipped out by the same train on which the hogs were being shipped; that, on arriving at Paris with his cattle, he was informed by the agent there that no car had been ordered for him for his cattle; that appellee immediately placed another order for a cattle car and when his car of hogs reached Paris he was' compelled to unload same and await the arrival of the cattle car; that the delay caused damage to the appellee by shrinkage in value of his cattle and hogs and by the loss of part of his hogs and one cow in the sum of $689.25, for which he asked judgment.

The appellant answered, denving all the allegations oi the complaint as to the liability of the appellants. The trial resulted in a verdict in appellee’s favor in the sum of $400 against the appellants. Judgment was rendered for that sum in favor of the appellee against appellants, from which is this appeal.

The complaint alleged, and the court will take judicial knowledge, that at .the time of the accrual of the appellee’s cause of action the appellant railroad was being operated by the United States Government through its agent, John Barton Payne, Director General of Railroads. Marshall v. Bush, 167 N. W. 59; Commercial Club v. C., M. & St. P. R. Co., 170 N. W. 149. Therefore, no cause of action is alleged or proved against the appellant company under the provisions of the acts of Congress August 29, 1916, and February 28, 1920, as construed by tile Supreme Court of the United States in Missouri Pacific Railway Co. v. Ault, 41 Sup. Ct. Rep. 593. The court, therefore, should have instructed the jury to return a- verdict in favor of the appellant company, and should have entered a judgment dismissing the cause of action as to it.

The allegations of the appellee’s complaint show that his cause of action was grounded upon the alleged neglect of the agents of the Director General of Railroads having charge of the operation of the Arkansas Central Railroad at Paris, Arkansas, to have a car ready for the shipment of appellee’s cattle when the car of hogs to he shipped over the same train reached Paris from Scranton. On the issue as to the liability of the appellant, Director General of Railroads, there was testimony tending to sustain the allegations of appellee’s complaint. There was testimony tending to prove that it was the custom of shippers of live-stock who desired to ship same from Scranton to foreign markets to order cars from the agent of the appellant company at Paris. When shippers at Scranton desired cars, they would make requisition orally for same of the agent there, and he would in turn make requisition of the agent of the appellant company at Paris. This custom was pursued in the present case, and there was testimony tending to prove that the station agent at Paris was notified by the appellee that he desired a car for the shipment of cattle and also a car for the shipment of hogs on the 23rd of August, 1919; that he desired to ship this stock through on the same train; that he prepared to make the shipment in this way, giving the reason why it was necessary for him to do so in order to conserve his interests, and that the agent at Paris promised to furnish the cars; that he drove his cattle to Paris for the purpose of making shipment on the same train that the hogs were on, and when he demanded the car for his cattle at Paris he was informed by the agent-that no car had been ordered for him, and the agent told the appellee to let the hogs go forward and to pasture the cattle until he could order and get a car for them. The appellee then enters into detail giving tbe circumstances as to the loss of his stock and the resultant damages caused by his failure to get the .car for the shipment of his cattle.

It could serve no useful purpose as a precedent to set out at length and discuss this testimony. It suffices to say that on this issue there was substantial testimony to sustain the allegations of appellee’s complaint and to warrant a verdict for the sum returned by the jury in his favor. The issue as to the liability of the appellant, Director General of Railroads, for a failure to furnish cars yras submitted to the jury under' correct instructions. The judgment as to the Director General is therefore affirmed. As to the railroad company, the judgment is reversed and the cause dismissed.


author: Hart, J.

text:
    McMillan v. Brookfield.
    Opinion delivered November 21, 1921.
    1. Attorney and client — transactions between. — An attorney may purchase from his client the results of a suit promoted by him, but the burden is upon the attorney to show the utmost good faith, the absence of undue influence, a fair price, knowledge, intention and freedom of action by the client, and that he gave his client full information and disinterested advice.
    2. Equity — duty to do equity. — The maxim, he who seeks equity must do equity, means that, whatever Re the nature of the controversy and of the remedy demanded, the court will not give equitable relief to the party seeking it unless he will admit and provide for all the equitable rights, claims and demands of his adversary growing out of or necessarily involved in the subject-matter of the controversy.
    3. Limitation of actions — discovery of adverse claim. — A suit by a client to set aside a deed to land given by him to his attorney as security for his fees was not barred where brought within seven years from the time the attorney placed the deed on record, that being the first time that the plaintiif knew that defendant was claiming the land.
    4. Appeal and error — necessity of bill of exceptions. — No bill of exceptions is necessary in chancery cases except where oral testimony has been taken and not written and filed as a deposition in the case, or as part of the record in the cause.

      5. Appeal and error — bringing up oral evidence in chancery.— Recital in the decree that certain oral testimony should be reduced to writing and filed, coupled with a recital that this had been done, and the certificate of the clerk that the transcript contains a complete record of all the proceedings, made the oral testimony a part of the record.
    Appeal from Cross Chancery Court; A. L. Hutchins, Chancellor;
    reversed.
    STATEMENT OF FACTS.
    C. T. McMillan brought this suit in equity against J. C. Brookfield to set aside a deed to about 14 acres of land, on the ground that the execution of the deed was obtained through undue influence while the defendant was attorney for the plaintiff to recover the land from a third person. Subsequently Susanna McMillan, the wife of C. T. McMillan, was permitted to become a party plaintiff to the suit.
    C. T. McMillan is a colored man. According to his testimony, he purchased the land in question from a Mr. Davis, but was not able to secure a deed from him to the land. He employed J. C. Brookfield, an attorney, to get the land for him. He agreed to pay Brookfield $185 as his compensation. McMillan lived on the land when he first purchased it, but moved away from it several years before he employed Brookfield to recover it. Brook-field brought suit for him for the land in 1912, and a decree was rendered in McMillan’s favor for the land in 1915.
    J. C. Brookfield was a witness for himself. According to his testimony, C. T. McMillan came to him to borrow some money, and he refused to lend him any, but purchased the land in controversy from McMillan for $20. McMillan execute^ to him a warranty deed to the land on the 1st day of August, 1921. The consideration expressed in the deed is “the sum of $1 and other good and valuable considerations to me paid by J. C. Brookfield”. Brookfield subsequently brought suit for the possession of the land in the name of C. T. McMillan.
    On cross-examination, he stated that he did not ■bring suit in his own name, because he did not want to file the suit and prosecute it in his own name. He admitted that there was nothing in the pleadings to notify the court who was the real party in interest. He placed his deed from McMillan on record soon after the court entered a decree in McMillan’s favor for the land. The land was worth about $75 when he purchased it from McMillan. He paid McMillan other sums after the execution of the deed. McMillan got $65 from him before he gave his deposition. Brookfield never got this. back.
    . F. O. Cogbill,' a notary public, was a witness for the defendant. He took O. T. McMillan’s acknowledgment to the deed in question. McMillan could not write his own name, and Cogbill witnessed his signature. McMillan seemed familiar with the deed, and did not hesitate to sign. The land is worth $100 per acre now, and was worth $150 at the time the deed was executed.
    The court found the issues for the defendant, and dismissed, the complaint for want of equity. The plaintiffs have appealed.

      Killough, Lines & Killough, for appellant.
    Appellee has not met the burden of showing that no undue influence was used and that he gave his client all the information and advice as against himself that was necessary in order to enable him to act understandingly. 73 Ark. 575; 87 Yt. 1.
    The property in suit was the homestead of appellant, and the court should have so held. It is a question of intent, whether the homestead has been abandoned. 134 Ark. 519; 55 Ark. '55. The absence of the wife and children will not affect the husband’s right of homestead. 29 Ark. 280.
    The wife did not sign the deed, and the deed purporting to convey the homestead is a nullity. 123 Ark. 189.

      8. W. Ogan, for appellee.
    What purports to be the bill of exceptions is not signed by the trial judge, and therefore is not properly before, the court. As no error is alleged otherwise in the record, the case should be affirmed. C. & M. Dig., §<§, 1321,1323.
    No order was- made making Susanna McMillan a party to the suit, merely a motion asking that was filed, so she is not properly a party. C. & M. Dig., § 1102.
    The relation of attorney and client never existed. Appellee prosecuted the suit in the name of his grantor which he had a right to do. C. & M. Dig., 1498 and 1500.
    The land w'as never impressed with the character of a homestead. When appellee purchased, appellant had neither legal title nor possession, but mere equity. If mistaken in this view, the homestead was abandoned. 21 Cyc. 597; 5 ICy. Law Rep. 422.
    There was no present intention to return to the place required to preserve the homestead character. 60 Ark. 262; 21 Cvc. 603. Abandonment is a question of intent. 148 S. W. 245.
    A husband may not convey but can abandon a homestead without his wife’s -consent. 101 Ark. 101.
    The record brought up under the nunc pro tunc order is not properly identified and has no place in the case. This is so for the further reason that the trial court had lost jurisdiction of the case.

      Killough, Lines $ Killough, in reply.
    The decree of the court identifies the testimony brought up in the nunc pro tunc order, and is sufficient to bring the evidence before this court. 117 Ark. 221.
    This record shows that Susanna McMillan was a party to the suit.
    A departure from a homestead for the purpose of business, pleasure or health does not constitute an abandonment. 80 Ark. 249. The loss of the members of one’s family does not terminate a homestead right. 71 Ark. 206; 65 Ark. 393.
   Hart, J.

(after stating the facts.) It is well settled in this State that an attorney may purchase from his client the results of a suit promoted by him, but the burden is upon the attorney to show the most perfect good faith, the absence of undue influence, a fair price, .knowledge, intention, and freedom of action by the client, and also that he give his client full information and disinterested advice. Davis v. Webber, 66 Ark. 190; Thweatt v. Freeman, 73 Ark. 575; and Weil v. Fineran, 78 Ark. 87.

Tested by this rule, we think that, the deed should be set aside. The consideration recited in the deed is the sum of $1 and other good and valuable considerations. Brookfield admits that he paid McMillan only $20 at that time. He subsequently brought suit for the land in the name of McMillan and prosecuted the suit in his name for three years. Brookfield did not record his deed until after a decree was rendered in favor of McMillan for the land. Brookfield claims that he made other advances to McMillan after the execution of the deed before he gave his testimony in the pending suit for the land. If he had already purchased the land, this was not necessary. His making the advancement is consistent, however, with the theory that he was to have a lien on the land for his services in recovering it.

The fact that Brookfield brought the suit in McMillan’s name and prosecuted it to a conclusion in his name, together with the almost nominal price given for it, are facts to be considered in determining whether the deed should be set asid. Indeed, all of the attending circumstances tend to show that the parties intended that the deed should be a mortgage for the security of Brookfield’s fee in the prosecution of the suit to recover the land and for any advances he might make McMillan during the progress of the suit.

This suit is in equity, and the court has the right to impose conditions upon the plaintiffs in granting them the relief prayed for. He who seeks equity must do equity, is a favorite maxim. In its broadest sense, it is regarded as the foundation of all equity, and as the source of every doctrine and rule of equity jurisprudence. Its practical meaning is that, whatever be the nature of the controversy and of the remedy demanded, the court will not give equitable relief to the party seeking it, unless he will admit and provide for all the equitable rights, claims and demands of his adversary growing out of or necessarily involved in the subject-matter of the controversy. 1 Pomerov’s Equity Jurisprudence, (3 Ed.) § 385.

The record shows that McMillan has not paid Brookfield for his services in recovering the land for him, for advances made during the progress of the suit and for the taxes on the land paid by Brookfield.

Upon the remand of the case, the deed from Brook-field to McMillan will be set aside upon the payment by McMillan to him of the amounts due him for his legal services in recovering the land, the advances made by him to McMillan during the progress of the suit, and the amount of taxes on the land paid by him.

Inasmuch as these amounts are not definitely shown by the evidence in the record, both parties, if so advised, will be 'allowed to take additional testimony to establish the amount of Brookfield’s fee for recovering the land, the advances made by him to McMillan and the amount of taxes paid by him. In default of the payment of these amounts by McMillan during the time to be fixed by the court, the land shall be sold under orders of the court for the payment thereof.

The defendant Brookfield has pleaded the statute of limitations. The record discloses that he did not file his deed for.record until the 26th day of February, 1915, and the present suit was not brought until the 28th day of September, 1920. McMillan testified that he did not know that Brookfield was claiming the land under the deed until after he had filed it for record. There is no contradiction of his testimony in this respect, and indeed it is corroborated by the fact that Brookfield brought suit to recover the land in the name of McMillan, and did not file his deed for record until after tliat suit had been concluded. Hence the plaintiffs are not barred by the statute of limitations.

It is also insisted by counsel for the defendant that the decree should be affirmed because there is no bill of exceptions preserving’ the evidence taken at the trial. The record shows the entry of a -mmc pro tunc decree, and that decree recites that the case was heard upon the pleading’s which are named and the oral testimony of certain witnesses whose names are set out.

The decree contains a further recital “that the oral testimony of said witnesses be and is ordered to be taken down in shorthand by Miss Mabel Kellogg and by her transcribed and filed with the other papers in the case, which is accordingly done. ’ ’

No bill of exceptions is necessary in the chancery court except where oral testimony has ¡been taken and not written and filed as a deposition, or1 as a part of the record in the case. Lemay v. Johnson, 35 Ark. 225; Bradley Lumber Co. v. Hamilton, 109 Ark. 1; and Alston v. Zion, 136 Ark. 376.

In the case of Bradley Lumber Co. v. Hamilton, supra, the court said:

“The only way of preserving testimony taken orally before the chancery court was to have same reduced to writing at the time and properly identified by the court and filed and made a part of the record by order of the court, or afterward having it reduced to writing and brought into the record by bill of exceptions.”

The amended record shows that the oral testimony in the present case was ordered reduced to writing and filed as part of the record. It contains the further recital that this was done. This identifies the testimony and makes it a part of the record, just as if the oral testimony of the witnesses had been depositions and filed in the case.

In Lenon v. Brodie, 81 Ark. 208, the recital of the decree was, “the depositions of witnesses taken ore tenus at the bar of the court and agreed to be filed and used as depositions in the case.” The clerk in his certificate stated that the transcript included the oral evidence. The court held that was sufficient, and that the oral testimony became a part of the record in the case by the agreement of the parties that it should be reduced to writing and filed as depositions in the case. Here the court ordered the testimony to be ‘reduced to writing and filed with the other papers in the case. It recites that this was done.

The record also contains the certificate of the clerk that the transcript contains a complete recor'd of all the proceedings in the chancery court. The recital in the decree that the oral testimony should be reduced to writing and filed with the other papers in the case, coupled with the recital that this had been done, and the certificate of the clerk made the oral testimony a part of the record and no bill of exceptions was necessary.

It follows that the decree will be reversed because the court erred in not setting aside the deed from C. T. McMillan to J. C. Brookfield, and the case will be remanded for further proceedings in accordance with the opinion.


text:
    Morris v. Drainage District No. 24.
    Opinion delivered November 21, 1921.
    1. Drains — order assessing cost op improvement. — Under Crawford & Moses’ Dig-., § 3617, providing that the county court shall order an assessment upon the real property of a drainage district to pay “the estimated cost of the improvement,” the phrase quoted means the whole cost of constructing the drainage 'ditch, including the overhead charges.
    2. Drains — assessment op, tax. — Crawford & Moses’ Dig., § 3617, providing that the county court shall levy an assessment to pay, the cost of a drainage improvement, contemplates that, where the district is created by the county court, the court shall make hut one assessment for the entire cost of the improvement, and an assessment for preliminary expenses merely is unauthorized.
    3. Drains — assessment op tax — time op appealing. — Crawford & Moses’ Dig., § 3617, providing that the remedy against an assessment of drainage taxes shall be by appeal taken within 20 days from the time that the assessment is made by the county court, means that the appeal shall be taken within 20 days from the making of the assessment for the entire cost of the improvement, and where an assessment was improperly made for preliminary expenses merely an appeal therefrom may be taken within six months, under Crawford & Moses’ Dig., § 2287.
    Appeal from Craighead Circuit Court, Jonesboro District; B. E. Dudley, Judge;
    reversed.

      J. F. Gcmkney, for appellants.
    There is no provision in the drainage law providing for an appeal from the county court allowing claims against the district; the general law applies. C. & M. Dig., § 3617; 90 Ark. 219; 143 Ark. 67.
    The order of the county court allowing claims and assessing a tax to pay same is void. C. & M. Dig. § 3610, par. 2.

      Sloan £ Sloan, for appellees.
    The county court had the power to levy a tax to pay the indebtedness of the drainage district. C. & M. Dig. § 3617.
    The fact that the actual cost of construction exceeds the cost as estimated by the engineer does not preclude the construction of the improvement. 213 Pa. St. 123; 62 Atl. 516; 176 N. W. 373. It was clearly the intention of the Legislature to levy a tax sufficient to pay for the improvement, even though it was in excess of the engineer’s estimate. C. & M. Dig., § 3620; 55 Conn. 437; 12 Atl. 519; 25 E. C. L; 1022, § 258. Power to levy a tax for the entire cost of an improvement necessarily carries with it the power to do a lesser thing, i. e., to levy a tax to pay a' part of the cost of the improvement. Broom’s Legal Maxims, star page 174.
    In making additional assessments it is sufficient if the general method is followed. 134 Ark. 447. The presumption is in favor of the county court’s order. 134 Ark. 121.

      The county court can exercise only such, powers as are conferred upon it by law. 115 Ark. 130; 4 Ark. 473; 28 Ark. 359; 89 Ark. 456; 37 Ark. 359; 33 Ark. 407.
    The only obligations upon which the county court passes are those represented by the bonds for which the taxes are pledged. 127 Ind. 422.
    An appeal from the order establishing the district must be taken in twenty days. 117 Ark. 292; 138 Ark. 131.
    A property owner may appeal within the time prescribed. 132 Ark. 141.
    A statute providing for appeals in a particular case supersedes the general statute. 134 Ark. 411; 127 Ark. 266; 104 Ark. 113; 103 Ark. 209; 53 Ark. 417.
   Hart, J.

This appeal challenges the correctness of a judgment of the circuit court dismissing the appeal of property owners from a judgment of the county court levying an assessment upon the real property in a drainage district to pay certain indebtedness.

Drainage District No.' 24, Craighead County, Ark., was organized under the alternative system of drainage districts. Crawford & Moses’ Digest, §§ 3607-3655 inclusive. The commissioners of the drainage district held a meeting on the 4th day of September, 1920, in Jonesboro, Ark., at which all the members were present. The matter of the indebtedness of the district was taken up and discussed. Claims for engineering services, attorney’s fees, fees and expenses of the commissioners, fees paid an abstracter of title and certain printing expenses, amounting in the aggregate of $5,528.21, were allowed. After all the claims had been allowed, a resolution for a tax to be levied to pay said claims was adopted.

A petition setting up the foregoing facts more in detail was filed in the county court by the commissioners. The commissioners further stated that the claims as allowed at their said meeting represented all of †1--lawful indebtedness of said district, and that a tax of 3 ■per cent, on the face of the assessed benefits would be required to pay said indebtedness.

Tlie prayer of the petition is that the county court make an order approving the action of the commissioners and directing the levy of the tax.

On the 12th day of November, 1920, the county court made an order approving the proceedings of the board of commissioners of said drainage district, 'and the levy of the tax by them on the real property in said drainage district. The county clerk of Craighead County was directed in the order to extend said taxes on a book specially procured by him for that purpose, and the collector was directed to collect the taxes in the year 1921.

On the 25th day of January, 1921, Allen Morris and J. D. Haynes, property owners in said drainage district, filed affidavits for appeal duly verified and prayed an appeal to the circuit court from said order. The affidavits for appeal were duly examined by the county court, and an order was made on said 25th day of January, 1921, granting an appeal from said judgment of the county court to the circuit court.

On the 7th da}*- of February, 1921, the commissioners of said drainage district appeared in the circuit court and fih'd their motion to dismiss the appeal of Allen Morris and J. D. Haynes. The circuit court granted the motion and dismissed the appeal.

Allen Morris and J. D. Haynes excepted to the ruling of the court, and have duly prosecuted an appeal to this court.

The correctness of the'judgment of the circuit conF depends' upon the construction to be given - to sections 3610 and 3617 of Crawford & Moses’ Digest.

Sec. 3610 provides that, when the county court has established the drainage district, it shall appoint three owners of real property within the county to act as commissioners. After providing the form of oath the commissioners shall take, and how vacancies may be filled by the county court, the section continues as follows: “Upon their qualification, the board shall prepare plans for the improvement within the district, as prayed in tlie petition, and shall procure estimates from competent engineers as to the cost thereof. For this purpose the board may employ such engineers and other agents as may be needful, such engineers to give bond as required in § 3607, and may provide for their compensation, which, with all other necessary expenditures, including the services of such attorneys as the county may employ, shall be taken as a part of the cost of the improvement. If for any cause the improvement shall not be made, said cost shall be charged on the real property in the district, including railroads and tramroads, and shall be raised and paid by assessment in the manner hereinafter prescribed. ’ ’

Sec. 3617 reads as follows: “The county court shall at the same time that the assessment of benefits is filed, or at any subsequent time when called upon by the commissioners of the district, enter upon its records an order, which shall have all the force of a judgment, providing that there shall be assessed upon the real property of the district a tax sufficient to pay the estimated cost of the improvement, with ten per cent, added for unforeseen contingencies; which tax is to be paid by the real property in the district, in the proportion to the amount of “the assessment of benefits thereon, and which is to be paid in annual installments, payable hot to exceed twenty-five }ier cent, for any one year, as provided in such order. The tax so levied shall be a lien upon all the real property in the district from the time that the same is levied by the county court, and shall be entitled to preference over all demands, executions, incumbrances or liens whatsoever created, and shall continue until such assessment, with any penalty and costs that may accrue thereon,, shall have been paid. The remedy against such assessment of taxes shall be by appeal, and such appeal must be taken within twenty days from the time that said assessment has been made by the county court, and on such appeal the presumption shall be in favor of the legality of the tax. Any owner of real property witliin the district may by mandamus compel compliance by the county court with the terms of this section. ’ ’

It will be noted that § 3617 requires that the remedy against the assessment of taxes as provided in the section shall be by appeal, and that such appeal must be taken within twenty days from the time the assessment has been made by the county court

It is the contention of counsel for appellees that the appeal in the present case should be taken as provided in said section, and that, inasmuch as the appeal was not taken within twenty days as prescribed by the statute, the circuit court was right in dismissing the appeal from the judgment of the county court. We do not agree with counsel in this contention. Sec. 3617 provides that the county court shall make an order which shall have all the force of a judgment, providing that there shall be assessed upon the real property of the district a tax sufficient to pay the estimated cost of the improvement with 10 per cent, added for unforeseen contingencies. The section further provides that the. tax is to be paid in annual installments not to exceed 25 per cent, for any one year as provided in the order. The words, “estimated cost of the improvement,” mean the whole cost of constructing the drainage ditch including the overhead charges. When the plans of the commissioners for making the improvement are carried out, the preliminary expenses contemplated in § 3610 become a part of the cost of the improvement. They are then included in the words, “estimated cost of the improvement,” in § 3617, and that section means that the county court should make but one order for the assessment of the real property of the district for the payment of the cost of improvement to be paid in annual installments not to exceed 25 per cent, for any one year as provided in such order.

It does not appear from the record in this case that the county court made an order under this section for the assessment of the real property of the district to pay the estimated cost of the improvement. Therefore, the part of that section providing that the remedy against such assessment shall be by appeal to be taken within twenty days from the time the assessment was made by the county court has no application to the facts presented in the record.

It will be noted that § 3610 provides that, if for any cause the improvement shall not be made, its costs shall be charged on the real property in the district. This means that when the district is not established by the county court the preliminary expenses shall be charged on the real property in the district and shall be paid by assessment in the manner hereinafter prescribed. Sam v. Bogle, 122 Ark. 14.

. Under the provisions of the act, if the improvement is constructed, the preliminary expenses become a part of the estimated cost of the improvement, and as such are embraced in the amount for which the county court makes an order for the assessment of the real property of the district under § 3617. When the district is not established by the county court, the preliminary expenses become a charge on the real property in the district under § 3610 and are to be collected by an assessment made by the county court in the same manner as when the improvement is constructed.

The amounts allowed in the. present case are not perliminary expenses, as contemplated in. § 3610, because the district was established by the county court, and the charges in question will become part of the estimated cost of the improvement to be collected as provided in § 3617, as interpreted in this opinion. That section contemplates one assessment for the whole estimated cost of the improvement, and does not contemplate that the county court should make an assessment at one time for part of the costs of the improvement and another assessment at a later date for the remaining costs of the improvement.

It follows that the commissioners had no right U present the claims to the county court and ask an assessment upon the real property in the district to pay tliem in advance of an assessment for the payment of the whole cost of the improvement. It is no answer to say that the commissioners might refuse to go ahead with the district and thus indefinitely delay the claimants in the collection of their claims. There is no allegation or proof to that effect in the record, and that question will not be decided until presented by a record calling for its decision.

It is sufficient to say in the present case that the court had no authority to make the assessment under § 3617 for the reasons above stated, and that on this account the time for appeal given by that section has no application to the present case.

The taxpayers had a right to appeal under the general statute regulating appeals from the county court, which is six months. Huddleston v. Coffman, 90 Ark. 219.

It follows that the circuit court erred in dismissing the appeal of appellants from the judgment of the county court, and for that error the judgment will be reversed and the cause remanded with directions to the circuit court to overrule the motion of the commissioners to dismiss the appeal, and for further proceedings according to law.


author: Smith, J.

text:
    Benson v. Firemen’s Insurance Company of New Jersey.
    Opinion delivered November 21, 1921.
    Insurance — loss of property by rains after fire. — Where a policy of fire insurance provided that the insurer should not be iiaole for loss caused, directly or indirectly, by neglect of the insurer to use all reasonable means to save and preserve the property during and after the fire, the insurer was not liable for damage by rains which occurred several days after the fire and which could have been avoided by the exercise of reasonable care by the insurer.
    Appeal from Pulaski Circuit Court, Second Division; Guy Fullt, Judge;
    affirmed.

      Golemcm, Robinson & House, for appellants.
    The policy insured against all loss or damage by fire, and all damages directly traceable to the fire. Compensation should therefore have been made for the damage caused by the rain. 178 Mass. 570; 30 L. B. A. 346; 111 N. W. 400; 100 Minn. 528; 10 L. B. A. (N. S.) 326.
    It was not the duty of the. insured to restore the property to its condition before the fire, but that of the insurer, and to relieve the company from liability the acts of the insured must be wilful, wanton or fraudulent. 32 N. Y. 405; 39 Kan. 449.
    The defendant knew of the necessity of protecting the house from rain and had an equal opportunity with plaintiff to do so, and had the same interest in preventing further damage.

      J. A. Wathms, for appellee.
    The words of the policy “direct loss or damage by fire,” mean loss or damage occurring directly from fire as the destroying agency, in contradistinction to the remoteness of such agency. 133 'U. S. 415; Clement on Fire. Insurance, p. 85; Kerr on Insurance, p. 358; 27 S. E. 172.
    The policy required the insured to give notice of the fire and to protect the property from further damage. This duty rested upon the plaintiff alone, and by his failure to attend to it, he cannot augment his damages. 45 N. E. 806; Clement on Fire Insurance, p. 1.
   Smith, J.

Appellee, an insurance company,- hereinafter referred to as the company, issued its policy of insurance “against all direct loss or damage by fire,” to the extent of $2,300, on a one-story, shingle roof, frame building, in the city of Little Bock, owned by the appellant Benson. The house was damaged by a fire, which occurred on Monday, September 29, 1919, at two o ’clock in the afternoon. Benson notified the agent who had written the policy on the afternoon of the fire, and on the following morning he and the agent inspected the property, and the agent advised Benson to have some contractor figure what it would cost to replace the house-as it was. A contractor named Schay made an estimate of $1,280; but there is some controversy as to the items included in his estimate. This estimate was given to the company’s agent, who told Benson that he would mail it to Smallwood, the company’s inspector and adjuster. About the end of the week in which the fire occurred, it commenced raining and ■ continued to rain every day for a period of three weeks, and it was about three weeks before Smallwood appeared at the scene of the fire to make an inspection and adjustment of the loss for the -company. When he came, he made some objection to Schay’s estimate, but finally said he would pay it. Benson declined to -accept Schay’s estimate in satisfaction of his claim and demanded $2,300, the face of the policy. At the trial the court excluded all testimony in regard to the damage done by the rain, and the instruction on the measure of damage expressly excluded this element of damage from the jury’s consideration. There was a verdict in Benson’s favor for $1,500, and both parties have appealed.

It is insisted on behalf of the company that the verdict should not have exceeded Schay’s estimate. But the undisputed testimony does not show that the damage (exclusive of that caused by the subsequent rains) did not exceed that amount. On the contrary, there was testimony placing the damage as high as $1,650. The appeal of the company is, therefore, disposed of by saying that there is testimony legally sufficient to support the. ver diet.

Benson took the position, and still maintains it, that the company was liable for all damage which occurred after the fire and until the time of the inspection by Smallwood, and his insistence is that, if he had made sufficient repairs to have protected the house from further damage after the fire, it would merely have added to his troubles in adjusting his' loss with the company, and that he was under no duty to protect the property hy repairing the roof; that this duty rested upon the company and not upon him.

We do not concur in this view. The policy sued on contained the stipulation that there could be no abandon - ment of the property to the company. The policy further provided “This company shall not be liable for loss caused, directly or indirectly, * * * by neglect of the insured to use all reasonable means to save and preserve the property at and after the fire. * *

Smallwood testified — and his statement was not denied — that by using a tarpaulin, or an army fly, or putting on the roof four or five squares of shingles, the rains which later came could have been kept out and no additional damage would have occurred on account of these rains.

We can easily imagine a case where the insurance company would be liable under such a policy as is here sued on for damage done by rain as a “direct loss or damage by fire.” Such would be the case if the rain followed so closely after the fire that no reasonable opportunity was offered to protect the .property from that damage, because the fire would continue to be the proximate cause. We need not stop here- to decide what would be a reasonable time for such purpose, as the undisputed testimony shows that Benson had a reasonable time to protect his property, and did not do so. Several days elapsed between the date of the fire and the beginning of the. rains, and it was not until about the middle of December1 that Benson commenced to rebuild his house. He testified, however, that as much damage was done by the first three days of rain as ever occurred.

In the case of Beavers v. Security Mutual Insurance Co., 76 Ark. 595, the policy sued on contained the identical provision found in the policy here sued on, that the company should not be liable for loss caused “by neglect of the insured to use all reasonable means to save and preserve the property at or after a fire. * * *” We there said: “This part of the contract only requires the insured to exercise care in saving and preserving the property at or after the fire, and prevents a recovery for loss of so much of the property as could have been saved by the insured with the exercise of due care and the use of reasonable means. German-American Ins. Co. v. Brown, 75 Ark. 251.”

There was here a failure to exercise due care and use reasonable means to protect the property after the fire; and this failure broke the causal connection between the fire and the subsequent damage, so that, it cannot be said that this subsequent damage was a “direct loss or damage by fire” against which the company had contracted to indemnify the insured.

Judgment affirmed.


text:
    Trimble v. State.
    Opinion delivered November 21, 1921.
    1. Criminal law — form of objection to instruction. — Where a general objection was taken to an instruction, specific objections dictated subsequently to the court stenographer, not in the presence and hearing of the court, were without effect.
    2. Criminal law — oral instruction. — It is not reversible error in a felony case to give an oral instruction, in the absence of a request that the instructions be reduced to writing.
    3. Criminal law — defense of alibi — sufficiency of evidence.— While the defense of an alibi is an affirmative one, yet, if the testimony tending to sustain this defense suffices to raise in the minds of the jury a reasonable doubt of the guilt of the accused, he would be entitled to an acquittal.
    4. Criminal law — opinion of non-expert. — A non-expert'witness may testify .his opinion that certain tracks were made by defendant, basing his opinion upon the peculiar shape of defendant’s foot.
    Appeal from Mississippi Circuit Court, Osceola District; R. E. L. Johnson, Judge;
    affirmed.

      8. L. Gladish, for appellant'.

      Instruction No. 12 was erroneous in that it failed to tell the jury that if the evidence which appellant had offered in support of his defense (an alibi), taken in connection with all other evidence in the case, was sufficient to raise a reasonable doubt of his guilt, the jury should acquit him. 110 Ark. 15, citing 105 Mass. 456; 113 Ark. 112; 59 Ark. 379; 102 Ark. 627; 62 Ark. 478.
    It was error to refuse to give instruction No. 1 requested by appellant, which in substance told the jury to acquit the defendant if they believed from the evidence that defendant was at the home of Kay Causey at the time Stokes was shot. 65 Ark. 475; 103 Ark. 70.
    The court erred in permitting witness Bud Stokes, who was not called as an expert witness, to testify as to his opinion based on facts within his knowledge. 5 Enc. of Evi. p. 651; 52 Ark. 181.

      J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    Appellant did not object to the giving of instruction No. 12, and save his exceptions, and it is too late to raise the objection for the first time on appeal.' 124 Ark. 599;' 192 S. W. 174. Exceptions cannot be reserved by merely assigning them as grounds for a new trial. 135 Ark. 499.
    Appellant’s requested instruction No. 1 is merely a condensed statement of No. 12 given by the court, and, if No. 12 is wrong, so is his requested instruction No. 1.
    It wag not error to admit the testimony of Bud Stokes, as same was only a conclusion of fact drawn from appearances, in reference to an ordinary transaction, which any man of common understanding was capable on comprehending, but which could not be reproduced or described to the jury precisely as it appeared to the witness. 52 Ark. 180.

      8. L. Gladish, on question of correcting record..
    The court gave, as one reason why the motion to correct the record should not be granted, his belief that the record could not be amended by nunc pro tunc order after the appeal had been, lodged in Supreme Court. The following cases hold to the contrary: 53 Ark. 250; 21 •Ark. 212; 17 Ark. 154.
    The evidence introduced by appellant was sufficient to establish the fact that he did specifically object to instruction No. 12, and the record should have been amended to so show.
   Smith, J.

Appellant was convicted for assault to kill, and has appealed. His defense is reflected in the only instruction which he asked, which was numbered 1 and reads as follows: “If you believe from the evidence that the defendant was at the home of Ray Causey at the time Charley Stokes was shot, the defendant can not be guilty of the crime as charged in the indictment, and you will acquit him. ’ ’ This instruction was refused, and an exception saved to that action, whereupon the court gave the following instruction numbered 12:

“The defendant pleads an alibi in this case, which means that he was not present, at the time and place where and when the assault was committed as charged in the indictment. Therefore, if you should find from a preponderance of the evidence in the case that the defendant, Earl Trimble, was not present at the time and place where and when the assault was committed, if you find beyond a reasonable doubt that the assault was committed, if you find bevond a reasonable doubt that the same was committed from the facts and circumstances in proof, then such an alibi as set up and claimed by the defendant would be established, and it would be your duty to acquit him.”

The original bill of exceptions does not show that an objection was made to this instruction, and we have before us now a bill of exceptions made on the hearing in the court below of a motion to amend the original bin of exceptions to show that an objection was in fact made to the instruction at the time it was given. According to the insistence of appellant, the instruction was given orally, and a general objection was made at the time, and later specific objections to the instruction were dictated to the court stenographer, but this occurred out of the presence and hearing of the court. Under the view most favorable to appellant, we have concluded that only a general objection was made to the instruction, if an objection was in fact made at all.

It is further insisted that error was committed in admitting testimony in regard to appellant’s tracks.

We perceive no reason why the court should have refused appellant’s instruction set out above. It presented concretely and correctly the law applicable to his defense, and was not more favorable to him than he was entitled to have the law declared. It stands as an undisputed fact in the case that if appellant was at the home of Ray Causey at the time the shots were fired, he could not be guilty of the crime charged, and the testimony in his behalf, if believed, established the fact that he was at Causey’s home at the time the shooting was shown to have occurred.

Notwithstanding what we have just said, we have concluded that the refusal to give instruction numbered 1 and the giving of instruction No. 12, is not error calliim for the reversal of the judgment, even though a general objection may have been made to instruction No. 12. The instruction No. 12 told the jury that, if they should find, from a preponderance of the evidence, that appellant was not present at the time and place when and where the assault was committed, the alibi set up and claimed by him was established, and that it would be their duty to acquit him. It is true there appears in the instruction an unnecessary repetition; but this repetition resulted no doubt from the fact that the instruction was given orally. The better practice, of course, is to reduce the instructions to writing before giving them; but we have held that it is not reversible error to give an oral instruction, in the absence of a request that the instructions be reduced to writing. Mazzia v. State, 51 Ark. 177; National Lbr. Co. v. Snell, 47 Ark. 407; Anderson v. State, 34 Ark. 257; Merrill v. City of Van Buren, 125 Ark, 248; Reed v. Rogers, 134 Ark. 528.

This repetition emphasizes the thought that the finding must be made beyond a reasonable doubt that an assault was committed, but it told the jury to acquit the defendant if his alibi was established, and it told the jury that the alibi was established if they found from a preponderance of the evidence' that appellant was not present at the time and place when and where the assault was committed.

It is insisted that the instruction is bad under the decision in the case of Wells v. State, 102 Ark. 627. But we do not concur in this view. The instruction on the defense of alibi in that case told the jury to find the de-' fendant guilty if the evidence failed to establish the defense of alibi. The instruction under review does not contain that error. Neither does the instruction fall within the condemnation of the instruction given in the case of Haskins v. State, 148 Ark. 351. There the instruction told the jury that, if the 'evidence of an alibi did not cover the whole period of time during which the crime was committed, the jury should not consider any of it. In condemning that instruction, we there said it was the duty of the jury to acquit if the evidence upon the subject of an alibi, in connection with the other evidence in the case, raised a doubt as to the guilt of the accused. The defense of an alibi is an affirmative defense, yet if the testimony tending to sustain this defense suffices to raise in the minds of the jury a reasonable doubt of the guilt of the accused, he would be entitled to an acquittal. This is pointed out, and we think made clear, in the recent case of Woodall v. State, ante p. 394.

We think the instruction now under review, when fairly interpreted, means that, if the appellant had established, by a preponderance of the evidence, that he was not present at the time and place when and where the assault was committed, his defense was established, and it would be the jury’s duty to acquit, and such was the effect of the instruction numbered 1 which he asked himself. In other words, the instruction given was as favorable as the one asked which was refused. His own instruction did not tell the jury to acquit if the evidence in support of an alibi raised a reasonable doubt about his guilt; and he made no objection that the instruction given was open to the same objection as was his own instruction; and we must therefore hold that the defect in the instruction given should have been called specifically to the attention of the court. As this was not done, no prejudicial error, of which appellant can now complain, was' committed.

Stokes, the person assaulted, was permitted to testify, over appellant’s objection, that certain tracks which he found in his yard the next day after the shooting were the same tracks which he had followed around his field —these last being tracks admittedly made by appellant. The objection to the question is that it called for the opinion of the witness upon a subject upon which he had not shown himself qualified to testify as an expert.

We do not think the objection well taken. Stokes had known appellant for ten years, and for the two years preceding the shooting they had lived on the same farm. He had frequently observed appellant’s tracks in the field and had noticed how he walked. He testified that appellant had a funny shaped foot, and he had frequently laughed about it, that his foot turned in and sets a little heavy on the inside. This was not a matter upon which only an expert could properly be allowed to testify. Upon the contrary, it is a matter about which a close observer could form an opinion without qualifying as an expert, and one of those things which could not be better reproduced or described than by comparing the track in question with the known tracks of appellant. Fort v. State, 52 Ark. 180; Brown v. State, 55 Ark. 593-599; Railway Co. v. Yarbrough, 56 Ark. 581; Miller v. State, 94 Ark. 538.

No error appearing, judgment is affirmed.


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    J. R. Watkins Medical Company v. Warren.
    Opinion delivered November 21, 1921.
    1. Trial — direction op verdict. — Where a defendant surety by affidavit denied execution of the instrument sued on, as provided by Crawford & Moses’ Dig., § 4114, and plaintiff offered no evidence on the issues so raised, it was proper to direct a verdict for defendant.
    2. Bills — notes—liability op indorsers. — Where one’s indorsement of a note expressly describes him as a surety, his liability is that of a surety, and not that of a guarantor.
    3. Bills and notes — liability op indorsers. — Where appellant, as “first surety”, signed a note containing blank space for the signature of a “second surety,” but there was no showing that appellant knew who would be the additional surety, or whether any other person would sign as surety, nor any showing that his signature was conditional, or, if so, that the condition was known to the obligee, the appellant was liable, though the signature of the “second surety” was forged.
    Appeal from Conway Circuit Court; A. B. Priddy. Judge;
    reversed in part.

      Strait & Strait, for appellant.
    The court erred in taking from the consideration of the jury the question of the. liability of- Hall on the bond. He was notified by letter of the -fact that he was named as surety on the bond of Montgomery, and he took no steps to advise appellant of the forgery, and by his conduct which amounted to acquiescence, has rendered himself liable. 50 Ark. 458; 85 Ark. 156; 83 Ark. 444; 101 Ark. 145.
    Regardless of the liability of Hall, Warren is liable on his signature (140 Ark. 491) unless he signed conditioned that certain persons would be procured as sureties, and that this fact was “known to the payee at the time he accepted the contract. Wheeler w. Traders’ Deposit Bank, 49 L. R. A. 315; 3 Ohio St. 302; 113 Ind. 365; 71 Iowa 675; 73 Ind. 325; 85 111. 218; 7 Ind. App. 381, and other cases cited in note to case of Wheeler v. Traders’ Bank.

      J, Allen Eades, for appellee Hall.

      The contention made by appellant as to the liability of Hall, arising- from the fact that he was notified by the company of his being a surety on the bond, is raised in this court for the first time.
    Hall denied the genuineness of the instrument by proper affidavit before the trial was begun (C. & M. Dig. § 4114) and appellant had no right to introduce it until its genuineness was proved. 82 Ark. 110; 35 Ark. 204; 38 Ark. 278; 49 Ark. 19. He who relies on a writing has the burden of proof as to its genuineness., 88 N. E. 178; 30 Neb. 104. This appellant failed to do.

      Edward Gordon, for appellee Warren.
    The contract in this case is one of guaranty and not suretyship. For the distinction between the two see Brandt on Suretyship & Guaranty, Sec. 1; 34 Fed. 104. 4 W. Ya. 29; 7 Mete. 518. Montgomery, not being- a party to the contract of guaranty, was the agent of appellant in procuring the signature of Warren (111 Arle. 436; 142 Ark. 132), and being their agent the company is bound by his misrepresentations.
    The forgery of the name of Hall materially alters the contract and renders same void. 49 Ark. 48. In the absence of evidence to the contrary, the legal presumption is that the alteration was made by the party having the custody of the contract. 5 Ark. 380. Alterations by strangers also render the contract void, when made without the consent of the party whose rights are affected. 48 Am. Dec. 412; 70 Miss. 157; 31 N. J. L. 127; 47 Am., Dec. 299; 86 A. S. R. 82; 24 L. R. A. (N. S.) 1155.
    The party producing a writing- as genuine, which has be'en altered after its execution, shall account for the alteration, otherwise it cannot be introduced in evidence. 34 Fed. 109. The court correctly found for Warren. Alteration by one co-mortgagor after others have signed renders .same void as to those who have signed. 79 Am. Dec. 506. The forging of Hail’s •name to the contract relieved Warren of liability.
   Smith, J.

This is the second appeal in this case. The opinion on the former appeal is found in 140 Arkansas at page 487. As a result of that opinion, certain issues have passed out of the case.

Appellant instituted the action to recover the sum due on a contract for the purchase price of certain articles sold and delivered to N. E. Montgomery, and against appellees, W. L. Warren and J. J. Hall, as sureties on the contract of Montgomery with appellant.

At the trial from which the first appeal was prosecuted, the court took the case from the jury as to the liability of Hall, upon the ground that he had filed an affidavit denying the execution of the instrument sued on, and no testimony was offered that he had in fact signed the obligation. We reversed that judgment because the affidavit denying the execution of the obligation was not an unqualified denial as required by the statute, but was made merely on belief. Sec. 4114, C. & M. Digest.

Upon the remand of the cause, such an affidavit as the statute required was filed, and as no evidence was offered contradicting the recitals of the affidavit denving the execution of the obligation, the court properly directed a verdict in Hall’s favor. Thereupon Warron the other surety, asked that a verdict be also directed in his favor, upon the ground that the discharge of Hall operated to materially alter the obligation and to discharge him also.

This prayer was granted, and a verdict in War'ren’s favor was also directed, and the appellant seeks by this appeal to reverse the judgment of the court below as to both parties.

We have just said that a verdict was properly directed in Hall’s favor. Must Warren be discharged from his liability on that account?

There is an interesting discussion in the brief of appellee Warren of the difference in the obligations of sureties and guarantors, and it is earnestly insisted that Warren is a guarantor, and not a surety. We dispose of this contention by saying that the obligation signed by Warren designates him as a surety, and makes him such, and required him to sign expressly as a surety.

Places were provided for the signatures and for the attestation of the signatures of the sureties. These sureties were designated first surety and second surety. Warren signed as first surety. There is no showing that he knew anything about who would be the additional surety, or whether any other person would sign as surety, except that there was a blank space for that purpose; nor was there any showing that his signature was conditional or, if so, that the condition was known to the obligee, the appellant medicine company; and so far as appellee Warren was concerned the obligation would have become a completed contract upon its delivery to, and acceptance by, the appellant, although no other person had signed as surety.

Warren is liable, although the subsequent signature of Hall was a forgery, for appellant did not know tha+ such was the case. It received its first intimation that the signature of Hall was a forgery after it brought this suit to enforce the obligation; and, this being true, the rule would be the same, even though Hall had signed before Warren did.

In the case of Wheeler v. Traders’ Deposit Bank, 55 S. W. 552, it was decided by the Court of Appeals of Kentucky (to quote the syllabus as it appears in the Southwestern Reporter) that “A surety in a note cannot escape liability on the ground that a signature which appeared to the note when he signed, and which he supposed to'be genuine, has turned out to be a forgery) as the fraud was practiced upon him by the principal, and not by the payee, who accepted the note supposing all the signatures to be genuine.” This case is extensively annotated in 49 L. R. A. 315, and the editor’s note ther'eto is as follows: “The main case, to the effect that one signing an obligation as surety guarantees the genuineness, of preceding signatures, is supported by nearly all of the cases. Those holding the contrary have either been repudiated in the States in which they were rendered, or were decided on the ground that the agent of obligee procured the signatures.” The cases cited in the notes to this annotated case are to the effect that one signing a contract as surety, so far as his own liability thereon is concerned, guarantees the genuineness of the signatures of all sureties whose names precede his own, and that regardless of the validity of the names following his own, unless his. own signature was obtained upon a condition not complied with known to the obligee at the time he accepted the contract.

Our cases of Stiewel v. American Surety Co., 70 Ark. 512, and Wüliams v. Morris, 99 Ark. 319, do not decide this express point, but the reasoning of those cases is applicable here. In the first of these cases, this court held that misrepresentation made to induce a surety to sign a bond, if unknown to the obligee, would not defeat the right to recover against the surety. In the second case the court held that, where a surety signed a note as joint maker, and left it in- the hands of his principal, who procured it upon condition that it be first signed by a co-surety, but delivered it to the payee, who took it in good faith without notice of such agreement, the surety was bound for its payment.

The insistence is renewed that Montgomery was the agent of appellant in the procurement of the signatures of Hall and Warren; but the opinion on the former appeal is against appellee in this contention.

The judgment in favor of Hall will be affirmed; that in favor of Warren will be reversed, and the cause, as to him, remanded for a new trial.


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    Mason v. State.
    Opinion delivered November 21, 1921.
    Injunction — notice of decree. — Where the record shows that on the 10th day 'of December, 1915, a temporary injunction was issued against appellant prohibiting him from selling .intoxicating liquors in a certain building, and that on the - day of December, 1915, the temporary injunction was, by consent of appellant’s counsel, made permanent, it sufficiently appears that the permanent injunction was made by consent after the temporary injunction was granted, and appellant will not be heard to say that he had no notice of the entry of the decree of injuction.
    Certiorari to Jefferson Chancery Court; John M. Elliott, Chancellor;
    affirmed.

      R. K. Toney and Caldwell, Triplett S Ross, for appellant.
    The order of December 10,1915, was temporary only. § 6199, C. So M. Digest. To make the order permanent appellant should have had five days notice previous to the hearing. Id.

    The record shows that he had no such notice.
    Appellant should not have been punished for contempt. §§ 5817, 5818, C. & M. Digest; 22-Cyc. 1013.

      J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    The amended record will reflect that appellant had legal notice of the decree entered on Dec. 10, 1915. Whether he had such notice or not, the judgment in the contempt proceeding ought not to be quashed, because, under the statute, § 6202, C. So M. Digest, appellant could be punished for violating either a temporary or permanent injunction.
    There is no bill of exceptions showing the testimony heard in the contempt proceeding. The testimony not being shown, this court will presume that the lower court’s judgment was correct. 109 Ark. 543; 139 Ark. 415.
   Humphreys, J.

This is an appeal from a decree of the Jefferson Chancery Court rendered on the 27th day of June, 1921, imposing a fine of $50 and a jail sentence of six months upon appellant for an alleged violation of an order entered in said court on the 10th day of December, 1915, under the provisions of section 6196 of Crawford So Moses’ Digest, prohibiting appellant from, selling intoxicating liquors in a building located, at No. 225 State street, Pine Bluff, Arkansas. A reversal is sought upon the ground that the record does not reflect that appellant had notice of the application for the order or the making thereof, or that a copy of the order was served upon him. At the time appellant filed his brief, the record reflected that a temporary injunction had been issued against him on the 10th day of December, 1915, ordering the building closed at No. 225 State Street, and prohibiting him from selling intoxicating liquors therein. But since that time the record has been perfected by certiorari so as to show that on the-r day of December, 1915, the temporary injunction was modified by the consent of appellant’s counsel in open court so as to restore the building to. appellant, but making permanent that part of the temporary decree prohibiting him from selling intoxicating liquors therein. This correction in the record eliminates the contention of appellant that he had no notice of the entry of the decree of injunction, for the violation of which he was fined and sentenced to serve a term in the jail of Jefferson County.

While the record, as it stands, does not show the date in December, 1915, when the temporary injunction was made permanent, it does show that it was made permanent after the temporary decree was made. So, under the rule that every presumption will be indulged in favor of the validity of a decree, this court, must indulge the presumption that, on the same day, to-wit, on the 10th day of December, 1915, after temporary order had been entered, the parties appeared and had it modified by consent so as to restore the building to appellant, and to enjoin him from selling intoxicating liquors therein.

No error appearing, the decree appealed from imposing a fine and jail sentence upon appellant for violating the order of injunction of date December 10,1915, is affirmed.