author: McHaney, J.

text:
    Boone v. State.
    Opinion delivered April 9, 1928.
    1. Criminal law — discretion as to postponement. — In a prosecution for murder where the State’s witness, present with defendant at the time of the killing, was permitted to testify in rebuttal, and, after several witnesses testified in surrebuttal, defendant moved that the court adjourn until morning, it then being 20 minutes of midnight, in order that the State’s witness might be impeached, held it was not an abuse of discretion not to permit the case to remain open for further testimony, or in refusing to open the ease next morning, where, even though the witness were impeached, it would still leave sufficient testimony unimpeaohed," so that an exclusion of impeaching testimony was not prejudicial.
    2. Conspiracy — unlawful combination. — The general rule is that where persons combine to do an unlawful thing, if the act of one proceeding according to the common plan terminates in a criminal result, though not the particular result meant, all are liable.-
    3. Conspiracy — purpose to commit felony. — In a prosecution for murder, going out on the highway to start a difficulty, while armed with a shotgun and a butcher knife, held evidence of a purpose to commit a felony.
    Appeal from' Drew Circuit Court; Turner Butler, Judge;
    affirmed.

      H. L. Veazey, for appellant.

      H. W. Applegate, Attorney General, and John L. Garter, Assistant, for appellee.
   McHaney, J.

Appellant was indicted, charged with murder in the first degree for the billing of one Harold Robin. He was convicted of murder in the second degree, and sentenced to eighteen ye'ars in the penitentiary, and has appealed to this court to reverse the judgment and sentence against him.

This is a companion case to that of Tracy Sanderlin v. State, recently decided by this court, ante p. 217. The facts in this case are substantially the same as they were in that case, and we will not repeat them here. The facts show that the deceased was killed by being cut or stabbed with a knife held by Sanderlin, and appellant was indicted -and convicted on the theory that he was present, aiding and abetting Sanderlin in such act. One Ed Lane is also under indictment charged with the same offense as that against appellant, but at the time of this trial he was in jail awaiting trial.

After the defense had rested, the State put Ed Lane on as a rebuttal witness, but it does not appear whose testimony his was supposed to rebut. He testified that he was with appellant and Tracy Sanderlin at the dance the night Harold Robin met his death, and that they came from the dance back to Monticello, to Jesse Boone’s cafe, to which appellant had the keys, where he ate a bowl of soup; that appellant went up to the front of the restaurant and picked up a shotgun, and that Sanderlin picked up la bread knife or a butcher knife, put it up his sleeve, and that they all went back out the Wilmar road, and had the difficulty- which resulted in Robin’s déath. Lane had not testified in the Sanderlin ease, but was awaiting in jail on the charge against him, and was called out of jail by the State and used as a rebuttal witness. This was about 11:30 at night. After four witnesses for appellant had testified in surrebuttal, the following took place:

“Mr. Harris: At this point, twenty minutes to twelve o’clock — twenty minutes of midnight — and court having been in session since nine o’clock this morning, and the last witness placed on the stand by the State in rebuttal being a surprise witness to us, I would like to ask the court to adjourn until in the morning, so we will be able to meet the proof which has been made by the State by putting on some witnesses to prove that they would not believe the witness Lane on oath. By the court: The court overrules the motion of the defendant, and holds that the defendant ought to have anticipated the introduction of this witness, and the court rules that the testimony must close- tonight. Mr. Harris: The defendant states that they did not anticipate it, and would like to have until nine o’clock in the morning to impeach him — to prove that they would not believe him on oath. 'By the court: You can do that. You ought to have had those witnesses, but if you have not them now, the court holds that this case must close tonight, that is, the testimony. To which ruling and action of the court in refusing to grant defendant’s motion to adjourn until morning the defendant at the time objected, his objections being overruled, he lat the time saved his separate and several exceptions. Defendant rests. -State rests.

“Note: -On the morning .of October 12, 1927, at the opening of court on the morning following the taking of the testimony, the defendant moved the court to be permitted to introduce witnesses to impeach the testimony of the witness Ed Lane, introduced in rebuttal on the part of the State, and offers the witness George Oampster and offers to ask the following questions: Q. Do you know the general reputation of Ed Lane in the community in which he lives for truth and morality? A. (Expected answer). I do. Q. Is that reputation good or bad? A. (Expected answer). Bad. . Q. Basing your answer upon his general reputation in a matter in which he is interested, would you believe him on oath? A. (Expected answer). I would not. By the court: The court refused to permit the witness to be introduced, land refused to let him testify, to which ruling and action of the court in refusing the request of the defendant the defendant objected; his objection'being overruled, he at the time saved his separate and several exceptions. .

“Thereupon the defendant offered to introduce the witnesses George Fish, Elmo Lawson, and E. G. Jeff-coat, whom they offered to ask the same questions and expected the same answers as shown on the preceding page, where it shows the questions to be asked of the witness George Campster and his expected answers. The court refused to permit the defendant to introduce the above witnesses, George Fish, Elmo Lawson and E. G. Jeffcoat, to which ruling and action of the court in so doing the defendant at the time objected; his objection being overruled, he at the time saved his separate and several exceptions.”

This is the first error assigned by - appellant for reversal.

It is urged that the court abused its discretion in refusing to permit the case to remain open until the next morning to enable the defendant to secure the witnesses named, and to have them testify to the bad reputation of the witness named, aird to the fact that they would not believe him on oath. A majority of the court is of the opinion that the court did not abuse its discretion in refusing to permit the case to remain open for further testimony until the following morning, or in refusing to reopen the case the next morning to permit witnesses to testify in this regard. Appellant himself testified that he secured the gun and put it into the car, and the witness Miss Gertrude Lassiter testified that she saw Tracy Sanderlin with a large knife, something like a butcher knife, in his hand, but did not see him when he stabbed or cut Robin. Therefore, even though appellant had been permitted to impeach Ed Lane’s testimony in the manner sought, still it would leave his own ¡admission of having put the gun in the car, and the testimony of Gertrude Lassiter as to the knife, unimpeached. Hence its exclusion was not prejudicial. Mr. Justice Wood, Mr. Justice Smith and the writer of this opinion do not agree with the conclusion reached by the majority.

The next assignment of error is that the court erred in giving instruction No. 11 on behalf of the State. It is as follows:

“The court instructs the jury that, if you find from the evidence that Tracy Sanderlin, Ed Lane and Basil Boone, being in a car, stopped the same on the highway with the. common intent to obstruct the same, and.did obstruct the road for the common purpose of stopping any person traveling thereon, in order that they might raise a difficulty with such person; and by reason of such common conduct on their part an altercation arose, in which Harold Robin was cut and killed by either one of the three, the defendant, Basil Boone, being present, aiding and abetting in the acts and conduct aforesaid of his companions, then each of the three would be guilty of an unlawful homicide in some degree; and if the fatal injury was inflicted upon Robin with malice aforethought, but without premeditation or deliberation, then the defendant would be guilty of murder in the second degree; and if the fatal injury was inflicted on Robin with malice aforethought and after premeditation and deliberation, by either one of the three, then the defendant, Basil Boone, would be guilty of murder in the first degree. ’ ’

It is objected to on the ground that it makes a common intent to commit a misdemeanor the plan itself for the commission of a felony, whereas the common plan must have been to commit a felony. We do not think the instruction is open to this objection.

The general rule 'is that, where persons combine to do an unlawful thing, if the act of one proceeding according to the common plan terminates in a criminal result, though not the particular result meant, all are liable. Thus, in Carr v. State, 43 Ark. 99-106, the lower court had given the following instruction:

“If the defendant was jointly with others assembled together in the commission of a trespass, or perpetration of a crime, and one or more did a criminal thing in no way connected with the joint 'understanding, the defendant is not liable.”

Criticising this declaration, the court quoted with approval from Bishop on Crim. Law, § 636, as. follows:

“A man may. be guilty of a wrong which he did not specifically intend, if it came naturally, or even accidentally, from some other specific, or a general, evil purpose. When therefore persons combine to do an unlawful thing, if the act of one, proceeding according to the common plan, terminate in a criminal result, though not the particular result meant, all are liable.”

We do not think the instruction is subject to the criticism that it makes the common plan to commit a misdemeanor the foundation for a conviction of a felony. As the language of the instruction, “stopped the same on the highway with the common intent to obstruct the same, and did obstruct the road for the common purpose of stopping any person traveling thereon, in order that they might raise a difficulty with such person.” Raising a difficulty with some person might or might not be a misdemeanor, but going out to start a difficulty, armed with a shotgun and a butcher knife, is some evidence of a purpose to commit a felony. It depends upon what kind of a difficulty was raised.

What we have said with reference to this instruction also disposes of appellant’s contention that the court errecLin refusing to give his requested instruction No. 10.

It is also urged in this case that the co-urt erred in refusing to instruct the jury on manslaughter, as requested by hiffi. We held in the Sanderlin ease that the evidence there did not justify an instruction on manslaughter. We have examined the record here and fail to find any additional evidence which would have justified the requested instruction.

No errors appearing, the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Scogin v. Scogin.
    Opinion delivered April 9, 1928.
    1. Trusts — parol evidence. — Under Crawford & Moses’ Dig., § 1497, providing that all deeds shall he construed to convey a complete estate of inheritance in fee simple, unless • expressly limited 'by appropriate words in such deeds, a deed absolute on its face cannot be shown iby parol testimony to have been in trust for the benefit of the grantor, in the absence of fraud, accident, or mistake or of a fiduciary relation existing between the parties.
    2. Trusts — execution op deed under mistake op law. — Where’ a deed executed by husband and wife was absolute on its face, the wife claiming to be the owner of property, and that she executed the deed to satisfy the fears of the grantees that they might outlive her, and through the mistaken belief that the property would be hers, notwithstanding the deed, because of her husband’s representations, the wife could not establish a resulting trust in the property, unless the testimony in support of a mistake of law was clear, unequivocal and convincing.
    Appeal from Bradley Chancery Court; E. G. Hammock, Chancellor;
    reversed.

      B. L. Beasley, for appellant.

      DuVal L. Purkins, for appellee.
   McHaney, J.

Appellants are the collateral heirs of Josiah H. 'Scogin, who died intestate and without issue, in Warren, Arkansas, and appellee is the widow of James H. Scogin, a brother of Josiah Scogin.

On March 1, 19.09, Josiah H. Scogin purchased the land in controversy from C. S. Thompson, and took the title thereto in the name of his brother, James H. Scogin. It is contended iby appellants that Josiah borrowed $200 from his brother, James, and had the deed made to him as security therefor. The consideration recited in the deed is $200. It is the contention of appellee that she furnished the money with which to buy the land and build the house, in the sum of $1,100, and that the title was taken in the name of her husband because of this fact; that, having furnished all the money that went into the property, her husband held the naked legal title thereto in trust for her. On August 10, 1917, appellee and her husband, James H. Scogin, executed and delivered to Josiah H. Scogin their warranty deed, conveying said land to him, which recited a consideration of $200 cash in hand paid by J osiah H. Scogin. J osiah and his sister, Mrs. Mary Martin, lived together in Warren, and occupied the house and premises in controversy up to the death of Josiah, which occurred in 1923.

Appellants contend that this latter deed is corroborative of their contention that Josi'ah had borrowed $200 from his brother, James, had paid it back, and that the deed of August 10, 1917, was executed because such indebtedness had been paid. On the other hand, appellee contends that this deed was wholly without consideration, and executed by her and her husb'and at the earnest solicitation of Mrs. Mary Martin, who feared that appellee and her husband might predecease herself and brother Josiah, and that the collateral heirs might take the property away from them and deprive them of a home. She further contends that she did not understand the effect of this latter deed, and that she joined with her husband in executing it, hot knowing that it would deprive her of her beneficial interest therein; that it was executed by reason of a mutual mistake of the parties as to the significance and effect thereof; that none of them intended that appellee, who had furnished the money, should 'be deprived of the fee in the land.

The case was submitted to the chancellor on conflicting evidence. We do not think it would serve any useful purpose to set out this testimony. The chancellor found that the appellee had furnished all the money for the purchase and improvement of the property, and that the title was taken in her husband and held in trust by him for her; that the second deed was made at the insistence of Josiah and Mrs. Martin, not with any desire to defeat appellee’s superior rights in the premises, but sprang from a fear that they might outlive her; that Josiah Scogin, by virtue of the latter deed, took no better or greater title than that of James H. Scogin, who held it in trust for his wife; and that appellee did not waive her equity by joining with her husband in said deed. A decree was entered enforcing a resulting trust against said property, and declaring appellee to be the owner in fee of the lands in question, for which she was given a writ of possession.

Other matters were' discussed and adjudicated in the decree, but from the disposition we make of this case we do not find it necessary to discuss them.

Assuming, but not deciding, that the evidence is sufficient to establish a resulting trust in appellee’s favor in and to the land in controversy, by reason of having-furnished the money to pay therefor, title to which was taken in her husband’s name, still we are of the opinion that the appellee cannot be held to have acquired title to this property by a resulting trust, because of the deed she signed, acknowledged and delivered under date of August 10, 1917. This deed was executed and acknowledged by James H. Scogin in Wiarren, Arkansas, and by him sent to his wife in Memphis, Tennessee, where she signed and acknowledged it, separate and apart from her husband. She then returned it to her husband in Warren, Arkansas, where it was delivered to Josiah Scogin. It recited a consideration of $'200, and was a deed absolute on its face. Under this state of facts, a deed absolute on its face cannot, by parol testimony, be shown to have been given in trust for the benefit of the grantor, in the absence of fraud, accident or mistake, or :a fiduciary relation existing between the parties.

Section 1497, C. & M. Digest, provides: ‘ ‘ The term or word ‘heirs,’ or other words of inheritance, shall not be necessary to create or convey an estate in fee simple; but all deeds shall be construed to convey a complete estate of inheritance in fee simple, unless expressly limited by appropriate words in such deeds.” Here the deed is absolute on its face, and there are no words of limitation, appropriate or otherwise, contained therein. Appellee says she executed this second deed by joining with her husband therein; that she did so in order to satisfy the fears of Mrs. Martin, and through the mistaken belief that the property would still be hers, notwithstanding -such deed, and that she was induced to this belief by representations of her husband. It is not alleged nor proved that she was induced to execute same through fraud or accident, but merely by mistake of law. Assuming that this is such a mistake as is contemplated by the law, still it would not be sufficient to destroy her deed, unless the testimony in support thereof is clear, unequivocal, satisfactory and convincing.

In Mason v. Harkins, 82 Ark. 569, 102 S. W. 228, it was said: “But, even if the testimony of the appellee was equal in weight to that of appellant upon this proposition, she would fail, because a written instrument -will not be overturned by parol testimony, unless the evidence be clear, unequivocal and decisive.” Citing McGuigan v. Gaines, 71 Ark. 614, 77 S. W. 52; Goerke v. Rodgers, 75 Ark. 72, 86 S. W. 837.

In Tillar v. Henry, 75 Ark. 446, 88 S. W. 573, it was said:

“Constructive trusts may be proved by parol, but parol evidence is received with great caution, and the courts uniformly require the evidence to- establish such trusts to be clear and satisfactory. Sometimes it is expressed that the ‘evidence offered for this purpose must be of so positive a character as to leave no doubt of the fact,’ and sometimes it is expressed as requiring the evidence to be ‘full, clear and convincing,’ and sometimes expressed as requiring it to be ‘clearly established.’ ” Citing cases.

The above has been the rule of this court in an unbroken line of cases, from Crittenden v. Woodruff, 11 Ark. 82, down to the present time. Without reviewing the evidence, but after a careful examination thereof, we hold that appellee has not met the requirements of this rule, and that the chancellor erred in holding that she had. It necessarily follows from the foregoing that the case must be reversed, and the cause remanded with directions to dismiss the complaint for want of equity.


author: Hart, C. J.,

text:
    Tankersley v. Patterson.
    Opinion delivered April 16, 1928.
    1. Equity — accounting between partners. — In a suit for accounting and settlement of partnership affairs, the jurisdiction of equity is practically exclusive.
    2. Partnership — matters included in accounting. — Items growing out of a partnership business and necessarily included in rendering an accounting of the partnership affairs were properly embraced in the master’s account and allowed by the chancellor in a suit for accounting, though not specifically pleaded.
    3. Appeal and error — conclusiveness of chancellor’s finding.— The chancellor’s finding in allowing items of the account of the partnership, held not against the preponderance of the evidence.
    Appeal from Sebastian Chancery Court, Port Smith District; J. V. Bourlcmd, Chancellor;
    affirmed.
    STATEMENT OE EAOTS.
    R. H. Tankersley brought this suit in equity against Sam Patterson for an accounting in a dairy partnership. Patterson filed an answer in which he denied owing the plaintiff on account of the partnership, and presented certain items which grew out of the contract of partnership, which he claimed he was entitled to have charged ag'ainst the plaintiff in the accounting. The chancery court appointed a master to make a statement of- the accounts between the parties.
    It appears from the record that, in October, 1923, R. H. Tankersley and Sam Patterson formed a partnership to operate a dairy near Port Smith, Arkansas. Tankersley owned the farm where the dairy was operated, the cattle, and the dairy equipment. Patterson was to furnish all the labor, manage the dairy, and account to Tankersley each week for his share of the profits. The profits were to be divided equally between the partners. The partners bought a truck for delivery purposes out of the profits of the business. The business was operated in this way until about October 1, 1926, when Tankersley accused Patterson of withholding money which had been earned in the partnership business. During the whole of the three years the partners had made weekly settlement-s, and Tankersley had accepted the statements made by Patterson. During this time tbe cattle bad increased from twenty to fifty-six in number.
    Tbe chancellor sustained certain exceptions to an itemized statement of the account rendered by the master, and a decree was rendered in accordance with the opinion of the court. The finding and decree of the chancery court were in favor of the defendant, Patterson; and to reverse the decree the plaintiff, Tankersley, has ■ duly prosecuted this appeal.

      Warner, Hardin & Warner, for appellant.

      A. A. McDonald, for appellee.
   Hart, C. J.,

(after stating the facts). It is first contended by counsel for the plaintiff that the decree should be reversed because some of the items allowed by the chancellor were not embraced in the cross-complaint of the defendant. We do not deem it necessary to discuss this contention at length. As we have already seen, the plaintiff brought this suit in equity against the defendant for an accounting of their partnership in running a dairy. The undisputed evidence shows that they were to divide the profits equally. The plaintiff was to furnish the cows, equipment and dairy farm; and the defendant was to manage the dairy, and to furnish all the labor and feed. It is well settled in the law of partnership that, in a suit for an accounting and settlement of the partnership affairs, the jurisdiction of equity is practically exclusive. Short v. Thompson, 170 Ark. 931, 282 S. W. 14. All the items embraced in the account of the master and found by the chancellor were items growing out of the partnership. Hence they were necessarily included in rendering an account of the partnership affairs. They grew out of the partnership business, and were necessary in the adjustment of the partnership accounts. Hence it does not make any difference whether they were specifically pleaded or not.

One of the principal items relied upon by the plaintiff for a. reversal of the decree was that the chancellor erroneously allowed the defendant $24 for one-half of the manure, hauled away from the dairy farm. As we have already seen, the dairy was -conducted upon the farm of the .plaintiff, and the proceeds were to be divided equally between the partners. Tankersley testified that he specifically reserved the manure. Patterson testified that nothing was said about the manure, and that it was necessary to have it hauled away from the dairy farm so that the dairy could be successfully and practically operated. The evidence for the defendant shows that 64 loads of manure were hauled away from the dairy farm by a tenant of the plaintiff, and spread on his farm. It was shown by the testimony of another witness that the owner of a dairy in the same vicinity had paid seventy-five cents a load to have manure hauled on his land. There were 64 loads hauled away from the dairy farm and spread over the land of the plaintiff which was cultivated by one of his tenants. This would have amounted to $48, and the chancellor was justified in finding that the defendant was entitled to a credit of $24 for one-half of the manure hauled away from the dairy farm as being the value of hauling the manure from the dairy farm and spreading it upon the farm of the 'plaintiff.

The court also allowed Patterson the sum of $32, which was for his services in repairing a house and fence belonging to the plaintiff. According to the testimony of the defendant, he was required to make these repairs,, and they were necessary in order to preserve the property and to keep it fit for use in the partnership business. Hence it cannot be said that the findings of the chancellor on these items were against the preponderance of the evidence.

We do not deem it necessary to set out or discuss in detail the various items allowed to the respective parties by the chancellor. They were very small amounts, and in no instance can it be said that the finding of the chancellor was against the weight of the evidence. The plaintiff commenced this action against the defendant on the theory that the defendant had not accounted to him in the weekly settlements for an equal division of the profits of operating the dáiry which were in his hands. The plaintiff, however, was unable to furnish proof in support of his complaint, and for that reason failed to maintain his suit.

The findings of fact made by the chancellor cannot be said to be against the weight of the evidence; and, according’ to our settled rule in such cases, the decree must be affirmed.


text:
    St. Louis-San Francisco Railway Company v. Missouri Pacific Railroad Company.
    Opinion delivered April 16, 1928.
    1. Contracts — effect of breach. — The general rule that a party to a continuing contract of mutual and dependent covenants cannot require the other party to perform executory stipulations while he fails to perform a contract on his part, held subject to exceptions growing out of the nature of the thing done and conduct of the parties.
    2. Railroads — joint use of y track — enforcement.—In a suit by a railroad to enjoin another railroad from interfering with an agreement providing that plaintiff should be entitled to use a certain Y track as long as it maintained the south leg of the Y, evidence of the defendant’s conduct showing an intention to refuse to allow plaintiff to* maintain such south leg of the Y, precluded defendant from complaining of plaintiff’s failure to comply with the contract, and warranted the court in finding that plaintiff was not guilty of such failure to perform as would release defendant from compliance.
    Appeal from Lawrence Chancery Court, Eastern District; A. 8. Irby, Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    The Missouri Pacific Railroad Company, successor to the St. Louis, Iron Mountain & Southern Railway Company, brought this suit in equity against the St. Louis-San Francisco Railway Company, successor to the Kansas City, Fort Scott & Memphis Railroad Company, to enjoin the defendant from interfering'with the existing arrangement at Hoxie, Arkansas, with reference to the use of the wye tracks under a contract dated September 27, 1895, between the St. Lonis, Iron Mountain & Southern Bailroad Company, party of the first part, and the Kansas City, Fort Scott & Memphis Bailroad Company, party of the second part.
    The contract recites that a controversy had arisen between the parties as to the ownership and use of the tracks of the two railroad companies at Hoxie, Arkansas. That part of the contract relating to the controversy in the present suit reads as follows:
    “It is agreed between the parties hereto that, so long as the party of the first part shall use the Y tracks at Hoxie, Arkansas, the party of the first part shall maintain the south leg' of said wye from the headblock on its main line to the heel of the frog at the intersection of said south Y with the main line of the Kansas City, Fort Scott & Memphis Bailroad Company, as shown on accompanying bine-print, which is made a part of this agreement ; and that, so long as the party of the first part shall maintain the south leg of the said wye as aforesaid, it shall be entitled to use both legs of the Y as well as necessary tracks to enable it to transport engines and cars from the south to- the north leg of the Y, or vice versa. It is also agreed that the party of the second part, during the continuance thereof, may use, as it has heretofore, so much of the tracks of the party of the first part as it may need in moving engines and cars between the west ends of the legs of said Y. The use of the tracks of one party by the other shall be subject to the control and directions, as to time and manner of use, of the owner of the tracks; and the use by either party of the other’s main track shall be made under order of the owner’s train dispatcher.”
    On January 29, 1906, the St. Louis-San Francisco Bailway Company, which- had succeeded to the rights and property of the party of the second part in the contract dated September 27, 1895, entered into a contract with the St. Louis, Iron Mountain & Southern Bailway Company relating to the construction and joint use of a passenger station where the lines of said railroads crossed at Hoxie, Arkansas. On October 7, 1912, the St. Louis-San Francisco Railway Company entered into another contract with the St. Louis, Iron Mountain & Southern Railway 'Company for the construction and joint use of a freight station at said point to replace the old one, which had been destroyed by fire.
    W. E. Brooks, was the superintendent of the Missouri Pacific Railroad Company, which had succeeded to the property and rights of the St. Louis, Iron Mountain & Southern Railway 'Company under said contract, from June 1, 1917, to January 10, 1919. During this time no question was made about the right of appellee to use the wye tracks above referred to for all purposes. 0
    A. A. Miller was division engineer of appellee, and, ■during his time as said division engineer, had charge of the tracks at Hoxie, Arkansas. Appellee maintained the tracks there, including the south track of the wye, from June, 1912, until June, 1917. From this time until in February, 1920, the United States Government maintained the tracks at Hoxie, Arkansas, during the period of our part in the World War.
    According to the testimony of W. W. Wamsganz, he had been connected with the auditing department of appellee since April, 1909, and was familiar with bills presented by appellant with reference to maintenance charges for the wye tracks at.Hoxie. Appellant presented bills for one dollar a oar for switching charge over the wye as far 'back as April, 1915, and also during 1916. These bills were returned by appellee to appellant, because it did not think they were proper charges under the contract of September 27, 1895.
    Other evidence for appellee tended to show that it was necessary for appellee to use the north leg of the wye to reach the joint freight depot, and it was necessary to use the south leg of the wye to reach the joint stock pens.
    The Missouri Pacific Railroad Company owns the ends of the leg* of the wye located on its right-of-way, and the St. Louis-San Francisco Railway Company owns all the rest of the wye. The contract under consideration recites that 19 9/10 feet of track of the wye on the south leg is situated on the right-of-way- of appellee, and 161 2/10 feet of track of the north leg of the wye is on the right-of-way of appellee. In other words, the record shows that appellee owns the end of -both legs of the wye located on its right-of-way and appellant owns all the. rest of the wye.
    According to the testimony of witnesses for appellant, it acquired its rights under the contract about November 1, 1916, and the controversy about the wye tracks had started prior to that time, and has continued ever since. The freight station at Hoxie belongs to appellant, and it has permitted appellee to use the north leg of the wye to serve the freight-house. The passenger depot is partly on the property of appellant and partly on the property of appellee, and is owned jointly by the railroad companies. The stock pens are also owned jointly, but the freight station is owned by appellant.
    Appellant served notice on appellee that, after the 12th day of November, 1921, it would not be permitted to use or run its engines.and cars upon the tracks constituting the wye at Hoxie, Lawrence County, Arkansas. It is the contention of appellant that appellee should pay for cars that are moved over the north leg of the wye track to the joint freight depot, and it has used constant efforts to induce appellee to enter into a contract for continuance of the use of said wye tracks. Since the government has relinquished control of the railroads, the wye tracks at Hoxie have been maintained by appellant. During the course of the controversy, appellee has written to appellant that it would reimburse it for any amount expended by it in maintaining the south leg of the wye.
    Other facts will be stated or referred to in the opinion.
    The court found the issues in favor of appellee, and it was decreed that appellant be enjoined from interfering in any manner with the use of said wye tracks by appellee under the contract of September 27, 1895. To reverse that decree the appellant has duly prosecuted ■this appeal.

      E. T. Miller, E. L. Westbrooke, Jr. and E. L. Westbrooke, for appellant.

      Edward J. White, Harry L. Ponder and Thos. B. Pryor, for appellee.
   Hart, C. J.,

(after stating the facts). At the outset it may be stated that appellee first instituted proceedings against appellant before the Railroad Commission of Arkansas for an order requiring appellant to permit appellee to continue the joint use of the wye tracks at Hoxie, Arkansas, under the agreement of September 27, 1895. Upon a record which contains practically the same facts as the present one, the Arkansas Railroad Commission ordered appellant to permit appellee to continue the joint use of its wye tracks at Hoxie, Arkansas. Appellant prosecuted an appeal to the Pulaski Circuit Court, and that court confirmed the order of the-Arkansas Railroad Commission, upon the evidence and pleadings before said commission. Upon the appeal to this court, it was held that the action of the Railroad Commission amounted to the exercise of judicial functions, and that it had no such power. Hence it was held thatit could not determine the rights, of the two railroads under the contract of September 27,1895, relating to the joint use and maintenance of the wye tracks at Hoxie, Arkansas. It was pointed out that the parties must enforce their rights under the contract in the courts, and that the court having proper jurisdiction of the matter could, by appropriate orders, preserve the rights of the parties until the case was finally disposed of. Hence the judgment of the circuit court was reversed, and the cause was remanded with directions to it to quash the order of the Railroad Commission. St. Louis-San Francisco Ry. Co. v. Missouri Pacific Rd. Co., 156 Ark. 259, 245 S. W. 806.

The circuit court obeyed the mandate of this court, and subsequently suit was. commenced against appellant by appellee to compel the enforcement of its rights under the contract of September 27, 1895, and the prayer of the complaint is that appellant should he enjoined from interfering with the agreement existing at the time between the parties to this suit with reference to the wye tracks at Hoxie, Arkansas.

Counsel for appellant seek to reverse the decree under the general rule that one party to a continuing contract of mutual and dependent covenants, cannot require the other to perform executory stipulations while he fails or refuses to perform the contract on his part. Phillips & Colby Construction Co. v. Seymour, 91 U. S. 646, 23 L. ed. 341. Hence it is contended by counsel for appellant that the failure of appellee to maintain and keep in repair the south leg of the wye under the contract of September 27, 1895, releases appellant from compliance with the contract.

There are exceptions to this general rule, growing out of the nature of the thing to be done and the conduct of the parties. Under the terms of the contract of September 27,1895, it was. provided that, so long as the party of the first part, which was at that time the owner of the railroad now operated by appellee, shall maintain the south leg of the said wye, it shall be entitled to use both legs of the wye as well as the necessary tracks to enable it to transport engines and cars from the south to the north leg of the wye, or vice versa. The chancellor was justified in finding that appellee and its predecessor in title complied with this requirement of the contract until the first part of June, 1917. On this point a division engineer testified in positive terms that appellee and its predecessor in title had maintained the wye tracks under the contract from June, 1912, until June, 1917, and we do not think there is any satisfactory contradiction of his testimony. J. H. Quay, a section foreman' of appellant, testified that he had maintained the south leg of the wye for appellant during the years 1918 to 1920 and up to the time he was testifying. He said that he did this under instructions given him by his road-master. We think, however, the witness was mistaken on this point. No doubt he did the work under instructions from his roadmaster, but he was not doing it for appellant but for the United States Government until the 28th day of February, 1920. The division engineer testified positively that, during the period of government control, the United States maintained the wye tracks. Thus it will be seen that it cannot be claimed by appellant that appellee failed to maintain the south leg of the wye until at least after the 28th day of February, 1920.

The record shows that, before this time, appellant was demanding additional compensation from appellee for the use of the wye under the contract of September 27, 1895,. and appellee was at all times denying the right of appellant in this respect. The record also shows that the managers of the respective roads recognized, in April, 1918, that there was no chance of an agreement as to the construction to be placed upon the contract under consideration. It is true this was during the period of government control, but the same persons were retained as managers of the road during this period. In September, 1920, appellant gave notice to appellee of its intention to terminate said agreement. The matter has been- continually in process of litigation of some kind during these years. Appellee contended for its rights under the contract during- all this time and wrote to appellant that it would pay the cost of maintaining the south leg of the wye. It will 'be remembered that, according to appellant’s own evidence, it had taken charge of the tracks during the year of 1918 and ever since had maintained them. This action, together with the attendant circumstances, showed a tendency on its part to refuse to allow appellee to maintain the wye during these years, and it cannot now complain that appellee has failed to comply with the terms of the contract because the failure was caused by the refusal of appellant to allow appellee to repair and maintain the south leg of the wye. Its conduct in doing so, coupled with its repeated demands during these years to -appellee for an additional contract, warranted the court in finding that appellee was not guilty of such failure to perform the contract on its part as would release appellant from compliance with it.

The decree will therefore be affirmed.


text:
    Union & Planters’ Bank & Trust Company v. Pope.
    Opinion delivered April 16, 1928.
    1. Mortgages — jurisdiction to set aside confirmation order.— The chancery court had jurisdiction of a motion to set aside an order confirming a foreclosure sale, made on an adjourned day at the same term of court at which confirmation of the sale of lands had been made.
    2. Mortgages — when foreclosure sale fraudulent. — While mere inadequacy of price will not justify the chancery court in refusing to approve a foreclosure sale, yet, if the purchaser has been guilty of any unfairness or has taken any undue advantage, the sale will be regarded as fraudulent and will be set aside.
    3. Mortgages — inadequacy op price in foreclosure sale. — Great inadequacy of price in the foreclosure sale requires only slight circumstances of unfairness by the party benefited by the sale to raise a presumption of fraud.
    4. Judgment — control of court during term. — A court has the power to set aside or modify its decrees at any time during the term, and this rule applies to an adjourned day of the term.
    5. Appeal and error — harmless error. — The action of the chancery court in setting* aside a foreclosure sale without giving notice of the application to the purchaser held not- to constitute reversible error, where the circumstances established the mortgagor’s rights to have the sale set aside, as such notice was not a prerequisite to the exercise of the court’s jurisdiction.
    6. Appearance — effect of taking appeal. — An appeal by a purchaser at a foreclosure sale from the action of the court in setting aside the sale has the effect of entering his appearance to the application to set aside the sale.
    7. Costs — discretion of court in chancery. — Costs in chancery cases are within the discretion of the court.
    Appeal from Crittenden Chancery Court; J. M. Futrell, Chancellor;
    affirmed.

      STATEMENT BY THE COURT.
    Union & Planters’ Bank & Trust Company and Henry Craft, trustee, brought this suit in equity against J. H. Pope and his wife, Lady P. Pope, and T. A. Pope to foreclose a mortgage on certain real estate situated in Crittenden County, Arkansas, to secure the indebtedness of J. H. Pope in the sum of $30,000.
    The record shows that on the 16th day of March, 1921, J. H. Pope executed a mortgage on said real estate to Henry Craft, trustee, to secure the sum of $30,000, evidenced by a promissory note. On the 30th day of March, 1901, J. H. Pope and Lady P. Pope had conveyed to Thomas A. Pope a one-half undivided interest of a one-half undivided interest in said land. On the 30th day of March, 1921, T. A. Pope executed a mortgage on said lands to secure the note of J. H. Pope above referred to in the sum of $30,000. The mortgage contains the following:
    “And the said T. A. Pope hereby covenants with the said Henry Craft, trustee, that he will forever warrant and defend the title to said lands against all lawful claims whatever, except an interest in said land to the extent and value of $4,000, which the said Pope reserves from this conveyance, and except the claim of Clara Spates to a life estate in and to the southwest quarter of the northeast quarter of section 14, township 6 north, range 8 east.”
    ■On the 2d day of June, 1924, a decree of foreclosure was entered of record in said suit. The decree recites that the case was heard on the complaint of the plaintiff, together with the exhibits thereto, and the original note sued on, and the answer of Lady P. Pope and the separate answer of J. H. Pope. The decree also recites service of summons by a certified copy of the complaint upon T. A. Pope at Franklin, Tennessee. It was decreed that the plaintiff should recover of J. H. Pope $33,439.59, and it was also decreed that the land should be sold in satisfaction of said sum.

      A sale was duly had of said lands by a commissioner appointed for that purpose on March 14, 1927, and the Union & Planters’ Bank & Trust Company became the purchaser of the land at the sale for the sum of $140. Union & Planters’ Bank & Trust Company was the plaintiff in the.suit, and was the owner of the note by J. H. Pope for $30,000, said note having been transferred to it in due course of business. No exceptions were filed to the report of sale, and it was in all things approved and confirmed by the chancery court on March 21, 1927, which was a day of the March term, 1927, of the Crittenden Chancery Court.
    On the 21st day of March, 1927, the deed from the commissioner to the Union & Planters’ Bank & Trust Company was presented in open court, and, upon examination, was in all things approved. This was also on a day of the March term, 1927, of the Crittenden Chancery Court.
    On June 25, 1927, T. A. Pope filed a motion to set aside the sale of said land. In support of the motion he alleged that, under the terms of the trust deed, which is a part of the record in the case, T. A. Pope reserved an interest to himself in said lands of $4,000, and that he is ready to make the land bring that amount or more at a resale of the land. He alleges that his interest reserved in said land is a superior lien to the claim of the plaintiff. Therefore he prays that the sale and order of confirmation as to the interest of T. A. Pope in said land be set aside and that he be given an opportunity to assert his rights.
    On the '25th day of June, 1927, the following order was entered of record:
    “Union & Planters’ Bank & Trust Company, plaintiffs v. J. H. Pope et al., defendants. — No. 2960 — -Order.
    “On this the 25th day of June, 1927, being an adjourned day of the March term, 1927, of this court, there came on for hearing the motion of T. A. Pope, a nonresident defendant in this cause, who had heretofore not appeared in person or by attorney and on whom no actual process had been served, to set aside the sale of his interest in the lands described in the complaint, which sale was made on March 14, 1927, and confirmed by this court on March 21, 1927, by decree recorded in minute book N, . at page 156, and acknowledgment appearing* of record on page 157 of said minute book, and, the court having considered same, it is hereby ordered and decreed that said order of confirmation of said sale and acknowledgment of delivery of deed to the Union & Planters’ Bank & Trust Company of the interest of said T. A. Pope in the land described in the complaint filed in this cause, be and the same is hereby set aside. Ordered and decreed this 25th day of June 1927.”
    The Union & Planters’ Bank & Trust Company appeals to the Supreme Court to reverse this order or decree.

      B. J. Semmes, for appellant.

      R. H. Crockett and J. T. Coston, for appellee.
   Hart, C. J.,

(after stating the facts). The order appealed from was made on an adjourned day of the same term of the court at which a confirmation of the sale of the lands in which T. A. Pope had an interest was made. Hence the court had jurisdiction in the matter. Wofford v. Young, 173 Ark. 802, 293 S. W. 725.

The record shows that T. A. Pope owned the fee simple title to an undivided one-fourth interest in 1,360 acres of land which were embraced in the mortgage foreclosed. The consideration recited in his deed was $4,000, and the deed was executed to him on the 30th day of March, 1901, which was 27 years ago. Lady Pope, the wife of J. H. Pope, does not appear to have signed the mortgage. The mortgage was given to secure an indebtedness of $30,000 of her husband. This tends to show that the interest of T. A. Pope in said lands was worth much more than the sum of $140 for which the lands were bid in at the foreclosure sale by the plaintiff. In addition thereto, the mortgage executed by T. A. Pope contains an express exemption of an interest in said lands to the extent and value of $4,000. This indicates that the parties at the time believed that the interest of T. A. Pope in said lands was worth more than $4,000, and the legal effect of the clause was to reserve in said T. A. Pope the sum of $4,000 at the' foreclosure sale of his interest in said land. In other words, if the lands did not sell for more than $4,000, no legal sale of them could 'be made under the mortgage, for T. A. Pope had expressly exempted from sale his interest to the value of $4,000.

While this court has held that mere inadequacy of price will not justify a chancery court in refusing to approve a sale and deprive a purchaser of the benefits of his purchase, yet, if a purchaser has been guilty of any unfairness or has taken any undue advantage, the sale will be regarded as fraudulent, and the party injured will be permitted to set aside the sale. Great inadequacy in price requires only slight circumstances of unfairness in the conduct of the party benefited by the sale to raise the presumption of fraud. Stevenson v. Gault, 131 Ark. 397, 199 S. W. 112, Ann. Cas. 1918E, 433; Moore v. McJudkins, 136 Ark. 292, 206 S. W. 445; Chapin v. Quisenberry, 138 Ark. 68, 210 S. W. 641; and Wofford v. Young, 173 Ark. 802, 293 S. W. 725. In Schroeder v. Young, 161 U. S. 334, 16 S. Ct. 512, 40 L. ed. 721, the rule is stated that, where there is great inadequacy of price, coupled with circumstances tending to show that the land was sold in such manner that its full value could not be realized, the court is justified in setting aside the sale. Here there was notice, by the terms of the mortgage itself, that T. A. Pope had excepted from its provisions an interest in the land to the value of $4,000. Hence, under the circumstances described 'by the record, the chancellor was justified in setting aside the sale of the interest of T. A. Pope in said land; and it was his duty to have done so if proper notice of the application had been made.

Counsel for appellant seek to obtain a reversal of the order setting aside the sale on the ground that no notice of the application to vacate the sale was given to the Union & Planters’ Bank & Trust Company, under the rule laid down by this court in Miller v. Henry, 105 Ark. 261, 150 S. W. 700, and the general rule announced in an annotation to that case in Ann. Cas. 1914D, 758. It is true that, under the authorities there announced, notice should have been given to the purchaser of the application to vacate the sale after it had been confirmed. But, under the 'circumstances, this action of the court is only, in general, reversible error, and was not a prerequisite to the exercise of jurisdiction by the court. It is well settled in this State that a court has the power to set aside or modify its decrees at any time during the term, and this rule applies to an adjourned day of the term. Wofford v. Young, 173 Ark. 802, 293 S. W. 725.

Under the circumstances of this case, however, we do not think this error of the chancery court constitutes reversible error. The Union & Planters’ Bank & Trust Company was the plaintiff in the case, and, as such, was a party to the suit before it became a purchaser at the foreclosure sale. It does not make any difference whether T. A. Pope was legally served with summons in the mortgage foreclosure suit or not. He became a party to this proceeding by moving to set aside the sale under the foreclosure decree. While no notice was given to the Union & Planters’ Bank & Trust Company of the application of T. A. Pope to set aside the sale under the foreclosure decree and the confirmation thereof, the court did set aside said sale, and had the jurisdiction to do so. An appeal has been taken only from the action of the court in setting aside the sale, and the appeal to this court has the effect of entering the appearance of the Union & Planters’ Bank & Trust Company to the application to set aside the sale. Having appealed to this court, the plaintiff became a party to the proceeding, and must follow the cause to its conclusion or take the consequences. Hodges v. Frazier, 31 Ark. 58; Ben jamin v. Birmingham, 50 Ark. 443, 8 S. W. 183; Walker v. Walker, 147 Ark. 376, 227 S. W. 762; and Lingo v. Swicord, 150 Ark. 384, 234 S. W. 264.

Under the views we have expressed above as to the rights of T. A. Pope under the reservation or exception in his mortgage, he would have been bound to prevail if notice had been given to the plaintiff of his application to set aside the sale. Hence no useful purpose could be served by reversing the order setting aside the sale and remanding the cause, with directions to the chancery court to set aside the sale upon the facts established. This would be an empty victory for the plaintiff, and could result in no useful purpose.

The costs in a chancery case are within the discretion of the court, and it is our opinion that the costs of the appeal should be paid by the plaintiff, who is the appellant in the ease.

Argument is made by counsel for appellant as to estoppel which should apply to Lady P. Pope. We do not deem it necessary to discuss or to determine this issue, for it is not involved in this appeal. No appeal was taken by Lady P. Pope, and the appeal of the plaintiff does not in any wise affect her rights in the premises. The record expressly shows that the plaintiff only appealed from the decree of the chancellor in setting aside the foreclosure sale in so far as it affected the interest of T. A. Pope.

Therefore the decree will be affirmed.


author: Wood, J.

text:
    Fayetteville v. Baker.
    Opinion delivered April 16, 1928.
    1. Certiorari — validity of order canceling lease. — Where an order setting aside a lease of certain rooms of the courthouse by the county court to a city shows on its face that the city was not present in court or that it received no notice of the cancellation of the lease, the order was void on its face, under Crawford & Moses’ Dig., § 6238.
    2. Certiorari — when appropriate remedy. — Where there is want of jurisdiction of the lower court, either of the subject-matter or of the parties or an excess of jurisdiction apparent on the face of the record, certiorari is the appropriate remedy.
    3. Certiorari — void judgment. — Certiorari lies to quash a void judgment, even though the judgment might have been vacated and set aside on appeal.
    4. Counties — control of county court over courthouse. — Under Const., art. 7, § 28, and Crawford & Moses’ Dig., § 2279, relating to the powers of the county court, that court had jurisdiction to lease rooms in the courthouse and a parcel of land on the courthouse grounds to a city for city uses, and such'contracts were not ultra vires.

    Appeal from Washington Circuit Court; J. 8. Maples, Judge;
    reversed.

      George A. Hurst, for appellant.
   Wood, J.

The city of Fayetteville instituted this action in the chancery court of Washington County against the county judge, the county clerk, and sheriff, to restrain them from removing from the two southeast rooms of the courthouse of Washington County all employees of the city of Fayetteville and all records, books, papers and other property belonging to the city of Fayetteville, and from a vault in the 'basement of the county courthouse of Washington County all records, books and papers belonging to the city of Fayetteville.

The plaintiff alleged, in substance, that, on the 18th of June, T923, it had leased from Washington County two rooms in the courthouse and a vault in the basement of the courthouse of Washington County for the use of the plaintiff as a police court, mayor’s office, council chamber, and office of the city water-plant, and other official city business; that the contract of lease which was entered into with the county court of Washington County was spread upon the records of such court. The contract was made an exhibit to the plaintiff’s complaint. Plaintiff further alleged that this contract was entered into for a period of five years from and after December 9,1922; that on the 25th day of October, 1926, plaintiff entered into a contract with the county court ■of Washington County, which contract was made an exhibit to the complaint, by which the city leased the rooms and vault as above described for a period of five years from and after December 9, 1927. It is alleged that, in the last contract, the city leased certain ground space on the courthouse grounds. The exhibits set out the terms of the contracts showing that the city agreed to pay to the county the sum of $40 a month in advance as rentals for the property leased from the county. The plaintiff alleged that it went into possession and was then in possession of the property mentioned in the leases, and had complied fully with the terms of the contract, and that its time under the leases had not expired; that, notwithstanding this fact, the county court of Washington County entered an order on its record at its April term, 1927, adjudging that the city of Fayetteville, on or about October 1, 1927, vacate the two rooms and the vault and the other property of the county then held and occupied by the city and its officials, and that one of the rooms be occupied by the county superintendent of schools and the other by the county farm and home demonstrator, and the rest of the property be used and occupied for county purposes only, and directing the sheriff to serve a copy of the order upon the city and to carry out and enforce the order on or before the first day of October, 1927. Plaintiff further alleged that on October 10,1927, the county court of Washington County entered an order on its records directing the clerk to issue a writ commanding the sheriff to remove the city officials and all of their records, books, papers, furniture, etc., and other property, and also to remove from the lot or parcel of land upon which the courthouse was situated all personal property and buildings belonging to the city of Fayetteville. Plaintiff alleged that no action in ejectment had been instituted against the plaintiff to recover the possession of the rooms and the lot; that the plaintiff had no notice whatever of the order and proceedings of the county court as alleged, and had not been given, an opportunity to be heard upon the lease contracts with the county. It further alleged that it was not necessary for the uses of the county that the county court make the orders mentioned, and it set forth the facts showing this to be the ease. It was alleged that the • officers mentioned were threatening to carry out the void orders of the county court, and, unless restrained, would so do. Plaintiff prayed that they 'be enjoined from executing such void order, and for all proper and special relief.

On the '21st of October, 1927, the defendants filed a demurrer and motion to dismiss, in which they set up, first, that the complaint did not state a cause of.action; and second, that the court had no jurisdiction of the subject-matter set forth in plaintiff’s petition. The chancery court sustained the demurrer, holding that it had no jurisdiction. The plaintiff excepted to the ruling of the court, and moved the court to transfer the cause to the law court. The cause was duly transferred to the law court, and plaintiff was by the court allowed to amend the prayer of its complaint so as to pray the circuit court for a writ of certiorari to bring up the records of the county court so that the orders of which complaint is made might be quashed by the circuit court.

The defendants renewed their demurrer and motion to dismiss the complaint in the circuit court. The circuit court, in the hearing upon demurrer, found that the order of the county court providing for the city offices was regular and valid; that the remedy of the plaintiff was by appeal from those orders, and that the circuit court at that time had no jurisdiction to issue a writ of certiorari. The court thereupon entered its judgment dismissing the complaint. The plaintiff stood upon its complaint, and prayed an appeal to the Supreme Court, which was by the court granted.

1. According to the allegations of the complaint, the orders of the county court were final orders or judgments rendered against the appellant without notice to the appellant. Such being the case, these orders were absolutely void. They show on their face that they were void because the county court, in these orders, in effect, set aside and canceled the lease contracts that had been entered into between the county court and the appellant without giving the appellant any notice whatever that such orders would be made. The orders themselves do not recite that the appellant was present in court or that it had received any notice of the contemplated cancellation of the lease contracts. The order of the county court of April 4, 1927, after reciting that the lease should be canceled, by directing that notice of such order be served on the city, shows that the order was ex parte, and that the city of Fayetteville had not been theretofore notified of the proceeding. The demurrer to the complaint admits this fact. Where there is a want of jurisdiction below, either of the subject-matter or parties, or an excess of jurisdiction, apparent on the face of the record, certiorari, says this court, “is the appropriate, if not the only, remedy.” Grinsteacl v. Wilson, 69 Ark. 587-591, 65 S. W. 110, and cases there cited. Our statute declares that all judgments and orders rendered by any of the courts of this •State against any one without notice, and all proceedings thereunder, shall be absolutely null and void. Section 6238, C. & M. Digest. See Sovereign Camp W. O. W. v. Wilson, 136 Ark. 546-51, 207 S. W. 45, and other cases in note to the above section of O. & M. Digest. “Certiorari lies to quash a void judgment, even though the judgment might have been vacated and set aside on appeal.” Browning v. Waldrip, 169 Ark. 264 (quoting syllabus 5), 273 S. W. 1032, and cases cited.

2. This brings us to the question of whether or not the lease contracts set forth in appellant’s complaint were .beyond the jurisdiction of the county court to enter into them. Article 7, § 28, of the Constitution confers upon the county court jurisdiction in every case necessary to the local concerns of their respective counties. Section '2279, C. & M. Digest, among other things provides that the county court of each county shall have the following powers and jurisdictions: “To have the control and management of all the property, real and personal, for the use of the county; * * * to sell and cause to be conveyed any real estate or personal property' belonging to the county, and to appropriate the proceeds of such sale'for the use of the county; to disburse money for county purposes, and in all other cases that may be necessary to the internal improvement and local concerns of the respective counties.”

Under these broad general powers conferred upon the county court by the Constitution and statute, supra, we hold that it is within the jurisdiction of the county court to enter into a contract to lease the rooms in the courthouse and the parcel of land on the courthouse grounds to the appellant, under the facts stated in the complaint. These contracts therefore were not ultra vires. See Little Rock C. of C. v. Pulaski County, 113 Ark. 439, 168 S. W. 848. We are not called upon, under the allegations of the complaint, to determine whether the lease contracts entered into between the county court and the appellant were improvident or whether any' grounds existed for avoiding or cancéling such contracts.

It follows that the court erred in sustaining the demurrer and denying the appellant’s prayer for writ •of certiorari. The judgment is therefore reversed, and the cause remanded with directions to overrule the demurrer and for further proceedings according to law.


author: Smith, J.

text:
    Mansfield Lumber Company v. National Surety Company.
    Opinion delivered April 16, 1928.
    1. Mechanics’ liens — contractor’s bond. — A 'bond given by a contractor binding principal and surety to indemnify the owner against claims for labor and material, not having been approved , by the clerk of the circuit court, nor filed in the clerk’s office as required by Crawford & Moses’ Dig., §§ 6915, 6916, held not a statutory bond.
    2. Mechanics’ liens — contractor’s bond. — A bond by a contractor providing that such contractor should satisfy all claims and demands incurred under contract and indemnify the owner against all costs incurred by him, and providing that the surety shall pay all persons having contracts for labor or material, held for . the benefit of the owner and materialman and laborers, though not a statutory bond, and imposed liability on the surety for the costs of materials furnished in constructing the building.
    Appeal from Sebastian Circuit Court, Fort Smith District; J. Sami Wood, Judge;
    reversed.

      Dobbs & Young, for appellant.

      Warner, Hardin & Warner, for appellee.
   Smith, J.

Appellant, the plaintiff below, alleged the following facts as constituting a cause of action against appellee, the defendant below.

Plaintiff is a corporation engaged in selling building material, and the defendant Rambo-Miller Construction Company is a partnership doing business as a construction company, and the defendant National Surety Company is a corporation doing a surety and indemnity business. On June 12, 1926, the defendant Rambo-Miller Construction Company, hereinafter referred to as the construction company, entered into a building contract witb a committee of the First Baptist Church of Fort Smith to construct certain improvements on the church building, which bound the construction company to furnish all labor and material in the construction of said improvement. In conformity with the contract, the construction company entered into a bond with the National Surety Company, hereinafter referred to as the -surety company, as surety. So much of the bond as is necessary to consider here reads as follows:

“Know all men: That we, Rambo-Miller Construction Company, of Fort Smith, Arkansas, herein,after called the principal, and National Surety Company, hereinafter called the surety or' sureties, are held-and firmly bound unto the First Baptist Church of Fort Smith, Arkansas, hereinafter called the owner, in the sum of $35,000, for the payment whereof the principal and surety or sureties bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly, by these presents:
“Whereas, the principal has, by means of a written agreement dated June 12, 1926, entered into a contract with the owner for the furnishing of all labor and material and the construction of a -Sunday-school building and alterations and enlargement of the church auditorium, a copy of which agreement is by reference made a part hereof. Now therefore the condition of this obligation is such that, if the principal shall faithfully perform the contract on hi-s part and satisfy all claims and demands incurred for the same, and shall fully indemnify and save harmless the owner from all cost and damage which he may suffer by reason of failure so to do, and shall fully reimburse and repay the owner all outlay and expense which the owner may incur in making good any such default, and shall p-ay -all persons who have contracts -directly with the principal for labor -or materials, then this obligation shall -be null and void; otherwise it shall remain in full force -and effect. Provided, however, that no suit, action or proceeding by reason of any default whatever -shall be brought on this bond after six months from the day on which the final payment under the contract falls due.”

Plaintiff further alleged that, after the execution of the bond, the construction company purchased from it certain building material to be used in the construction of the improvement, and that, in, reliance upon said bond, plaintiff sold and delivered material to the construction company of the value of $568.70. An itemized statement of the material furnished was made an exhibit to the complaint. The construction company failed to pay for the material, as did also the surety company, upon demand, wherefore judgment was prayed against both the construction company and the surety company.

A demurrer ivas filed to this complaint by the surety company, which was sustained by the court, and, plaintiff refusing to plead further, the complaint against the surety company waá dismissed, and this appeal is from that judgment. '

It was held by this court, in the case of Thomas Mfg. Co. v. Prather, 65 Ark. 27, 44 S. W. 218, that, where a promise is made to one upon a sufficient consideration for the benefit of another, the beneficiary may sue the promisor for a breach of his promise, and that holding has since been adhered to by this court. Stewart-McGehee Construction Co. v. Brewster, etc. Mfg. Co., 171 Ark. 197, 284 S. W. 53. The question presented for decision is therefore whether the bond made a part of the plaintiff’s complaint was executed for the benefit of materialmen who furnished ‘material used in the performance of the building contract, or was for the exclusive benefit of the owner of the building.

It is virtually conceded by appellant that the bond here sued on is not a statutory bond, such as is authorized by §§ 6915 and 6916, C. & M. Digest, as it was not approved by the clerk of the circuit court of the county in which the building is situated, as is provided by § 6915, nor was it filed in the office of the clerk of the circuit court, as is required by § 6916. It is insisted, however, that, although the bond may not be a statutory bond, under which the surety would be liable to all materialmen and laborers, it is nevertheless a common-law bond, and.made, not for the benefit of the owner alone, but for the benefit of laborers and materialmen as well, and the correctness of this contention is the question for decision.

The leading case on this subject in this State is that of Eureka Stone Co. v. First Christian Church, 86 Ark. 212, 110 S. W. 1042. This case was decided by a divided court, and was later to some extent distinguished in the ease of Morris v. Nowlin Lbr. Co., 100 Ark. 268, 140 S. W. 6, in which last-mentioned case two members of the court voted to expressly overrule the first-mentioned case. It was not overruled, and has since been followed, but it has always been recognized as a borderline case, the doctrine of which yus not to be in any manner extended. The liability there sought to be enforced against the surety depended upon the construction of article fifteen of the bond, which read as follows: “That there shall be no liens filed on said building or work, either for labor done thereon or for materials furnished in its construction, and the contractor shall pay all artisans, materialmen and laborers doing work on or about said building or other-work; and if, for any cause, such lien shall .be filed by any person, then and in such casé the contractor shall pay and satisfy the amount that may be due and owing, ’ ’ etc.

In the opinion construing this bond it was said that the intention of the parties in executing it was to be gathered from -the whole instrument, and that, if it was intended to secure, the payment of materials furnished to the contractor, the materialmen should recover on the bond as one executed for their benefit, but that, if the bond only secured the church — the owner — against claims and liens, then it became a bond of indemnity to the church, and the materialmen were not entitled to recover thereon. The materialmen sought to recover in that ease upon the clause of the contract which provides that the .contractor shall pay -all the materialmen, but it was said, in answer to this contention, that the -subject in contemplation of the parties was the protection of the church against liens that might be asserted against the building. This view was adopted because the majority were of the opinion that the language immediately preceding, as well as that which follows, the portion of the bond quoted showed that the object in view was to protect the church from the filing of liens and to provide for their payment in case they were asserted.

Here, however, more comprehensive language was employed. The bond first provides that the principal— the construction company — “shall faithfully perform the contract on his part and satisfy all claims and demands incurred for the same, and shall fully indemnify and save harmless the owner from all cost and damage which he may suffer by reason of failure so to do, and shall fully reimburse and repay the owner all outlay and expense' which the owner may incur in making good any such default.”

If the bond contained only the provisions just stated, it could well be said, as was held in the Eureka Stone Company case, supra, that the bond was for the benefit of the owner only, and was intended to protect the owner against liens that might be asserted against the building by laborers and materialmen whose demands had not been discharged by the contractor. But the bond here sued on further provides that the construction company and its surety “shall pay all persons who have-contracts directly with the principal for labor or materials.”

If effect is given to the language last quoted as adding anything to the portion of the bond first quoted, it must be held that it was intended to impose the obligation, not only that the contractor should faithfully perform the contract on its part and satisfy all claims and demands incurred in its performance, and fully indemnify and save harmless the owner “from all cost and damage which he may suffer by reason of failure so to do, and shall fully reimburse and repay the owner all outlay and expense which the 'Owner may incur in making good any such default, ” as is first provided, but shall, in addition, “pay all persons who have contracts directly with the "principal for labor or materials,” as is further provided.

The improper use of pronouns appearing in the bond suggests the high degree of probability that the bond executed was such a blank form of bond as would have 'been used had §§ 6915 and 6916, C. & M. Digest, been complied, with by having it approved by and filed with the clerk of the circuit court, and there would be no question about liability under the statutory bond, as the purpose of the statute is to give all laborers and materialmen a cause of action on the statutory bond, the proper execution of which operates to deprive them .of a lien on the building which the statute gives where no statutory bond is executed. In other words, while the bond is not a statutory bond, in that it was not executed in the manner provided by the statute, its provisions and conditions are broad enough to cover the liability imposed by the statute had it been executed as the statute requires. We are of the opinion therefore that the bond was not executed for the sole benefit of the owner, but for the benefit of materialmen and laborers as well, and the demurrer to the complaint should not therefore have been sustained.

Opposing counsel have submitted briefs reviewing many cases from other jurisdictions in which sureties have been held liable under somewhat similar bonds for the satisfaction of the demands of materialmen and laborers, and other cases in which somewhat similar bonds were held to have been executed solely for the benefit of the owner. We do not review these cases, for to do so would require • a discussion of the points of difference between the various bonds construed. Moreover, it is believed that the cases of Eureka Stone Co. v. Church and Morris v. Nowlin Lbr. Co., supra, and the subsequent cases which have followed them, fully announce the principles which must control here.

The judgment of the court below is therefore reversed, and the cause remanded with directions to overrule the demurrer.


text:
    State v. Guthrie.
    Opinion delivered April 16, 1928.
    1. Embezzlement — conversion of customer’s money. — An instruction that an allegation that the officer of a corporation converted a customer’s money to his own use would be sustained, if the testimony showed that such money was mingled with that of the corporation, under such officer's order or with his permission, held proper.
    2. Embezzlement — -instruction.—On a trial of an officer of a corporation on embezzlement of a customer’s money mingled with that of the corporation, the court correctly charged the jury that the testimony must show that defendant knew that the corporation was insolvent and unable to pay such money out of its funds or assets.
    3. Embezzlement — wrongful intent.- — Wrongful intent to convert another’s property, thereby depriving him of i-t permanently, is an essential ingredient of the crime of embezzlement.
    Appeal from Sebastian Circuit Court, Fort Smith District; J. Sam Wood, Judge;
    affirmed.

      H. W. Applegate, Attorney General, and John' L. Carter, Assistant, for appellant.
   Smith, J.

Appellee was tried -and acquitted under an indictment charging him with the crime of embezzlement. Evidence offered to support the allegations of the indictment was to the following effect: Appellee was the president and managing officer of the John A. Guthrie Mortgage Company, a corporation engaged in the business of selling real estate mortgages, for which service a brokerage fee was charged. A note to the order of the corporation would -be executed and secured 'by a mortgage on land owned by the maker of the note. The corporation would transfer the note and mortgage to the purchaser, and would account to the borrower for the proceeds of the sale, less the brokerage fee. ' Such a note and mortgage were executed to the corporation by James H. Ruth and wife, and the same were sold by the corporation for a sum which netted $990, less the brokerage fee. This money was not paid to Ruth, after demand. Upon receiving this money it was mingled ■with other money belonging to the corporation, and this was done under the direction and with the permission of appellee as managing officer of the corporation, but without the knowledge or consent of Ruth.

The corporation was insolvent, and was unable to pay Ruth the sum of money which had been collected by the corporation for his account. The testimony was conflicting as to whether appellee was" aware of the insolvency of the corporation, and there appears to 'be legally sufficient testimony to support a finding either way upon that question. Appellee testified that he considered the corporation solvent at the time the transaction with Ruth was had, as an audit of the corporation’s affairs had shown the corporation to be solvent.

Over the objection of the State the court gave ail instruction numbered 11-A, which reads as follows:

“You are instructed that, before you can convict the defendant of the charge of embezzlement in this case you must find that the defendant, John A. Guthrie, at the time the money of Ruth was intermingled with the funds of the Guthrie Mortgage Company, if you find it was so intermingled, had personal knowledge of that fact or took some part in the intermingling of said money with the funds of the Guthrie Mortgage Company, and, if you find that the money of Ruth was intermingled with the funds of the Guthrie Mortgage Company with tlie knowledge or by the direction or by permission of the defendant, you must further find, before you can convict him, that, at the time of such intermingling, the defendant, Guthrie, knew that the Guthrie Mortgage Company was insolvent, and unable to pay said money to Ruth out of its funds or assets.”

It is insisted by the State that this instruction is erroneous and resulted in the acquittal of the accused, inasmuch as it imposed upon the State the burden of showing, not only that Ruth’s funds were intermingled with those of the corporation with the knowledge or by the direction of appellee, but that appellee knew, when this was done, that the corporation was insolvent and unable to pay said money to Ruth out of its funds or assets. As other indictments, based on similar transactions, are pending against appellee, in which the same instruction will probably be given, the State has perfected this appeal to have it determined, before other trials are had, whether the instruction is a correct declaration of the law. It is the insistence of the State that, if Ruth’s money was converted to the use of the corporation by appellee or under his direction, without the knowledge or consent of Ruth, it is immaterial that appellee may not have known that the corporation was in fact insolvent when that transaction occurred.

The indictment charged appellee with having converted Ruth’s money to his own use, and it may be first said that the instruction correctly charged the jury that this allegation would be sustained if the testimony showed that Ruth’s money was mingled with that of the corporation under appellee’s order or with his permission.

This subject is extensively discussed in the case of State of Washington v. Thomas, 123 Wash. 299, 212 Pac. 253, 33 A. L. R. 781, and in the annotator’s note to that case. In that case the Supreme Court of Washington quoted with approval the following statement of the law from 14A C. J., page 244:

“Also — at least where the crime charged involves guilty knowledge or criminal intent — it is essential to the criminal liability of an officer or servant of a corporation that he actually and personally do the acts which constitute the offense, or that they be done by his direction or permission.”

The Washington case also quotes approvingly at some length from the case of Milbrath v. State, 138 Wis. 354, 131 Am. St. Rep. 1012, 120 N. W. 252, in which case a corporation took over and converted assets previously held for a client by a partnership which the corporation succeeded. It was there said:

“The evidence is ample-to support the contention that it was put in the corporation safe and mingled with the funds of the insolvent corporation and deposited in its bank account, with the consent and by the act of the defendant conjointly with Wagner. * * * There cannot be much doubt that this constituted a conversion of .the money by the defendant and Wagner. But was the money converted to their own use? One may convert money of another to his own use by paying it out upon his private or personal debt. Guenther v. State, 137 Wis. 183, 118 N. W. 640. If this is true, he can convert the money to his own use by putting it into the treasury and mingling it with the funds of an insolvent corporation which is under his control and management, and of which he is a stockholder and officer in charge. The benefit he receives in the first case by discharge of his personal debt is equal to the whole amount of the money so paid. The benefit which he receives in the second case is not equal to the whole amount of the money so paid. But the extent to which defendant was benefited does not constitute the test. It is paid to his own use in either case. It. is paid into that which is a mere instrumentality created by him under sanction of law, but as. much under his control and as subservient to his will as the furniture of Ms office or the books of account in which he records his. transactions. Under such circumstances there is no room for the legal fiction of separate corporate personality or for distinction between the defendant’s acts as officer of the corporation and Ms acts as an independent natural person. ’ In that case the defendant was charged individually, as here.”

The majority are also of the opinion that the court correctly charged the jury that it was essential that the testimony show and the jury find therefrom that appellee knew the corporation “was insolvent and unable to pay said money to Ruth out of its funds' or assets,” and that this is true because a wrongful intent to convert another’s property, thereby depriving him permanently of it, is an essential ingredient of the crime of embezzlement. If appellee did not know, or was not charged with knowledge of facts from which notice would necessarily be imputed, that the corporation was insolvent, there was no embezzlement of Ruth’s money, as that would be payable to and recoverable by him upon proper demand of the corporation, and appellee must have known that the necessary or probable consequences of mingling Ruth’s funds with those of the corporation would be to deprive Ruth thereof before he would be guilty of the crime of embezzlement, and if he did not have this knowledge, or if it were not necessarily imputed to him by the facts and circumstances shown in the testimony, then he was not guilty of embezzlement, and the instruction so correctly declared the law.

It is therefore the opinion of the majority — in which Mr. Justice Wood and the writer do not concur — that the instruction was a correct declaration of the law under the issues joined, and the judgment of the court below is therefore affirmed.


author: Humphreys, J.

text:
    Foote v. Blanks.
    Opinion delivered April 16, 1928.
    Fraudulent conveyances — conveyance to nephew. — A debtor’s conveyance of property to his nephew was not fraudulent as to a creditor subsequently obtaining a judgment, where the nephew paid in cash the fair market value of the property for the purpose of enabling the debtor to pay pressing obligations.
    Appeal from Ashley Chancery Court; E. G. Hammock, Chancellor;
    affirmed.

      Y. W. Etheridge, for appellant.

      Compere & Compere, for appellee.
   Humphreys, J.

On the 26th day of August, 1927, appellant obtained a judgment in the circuit court upon a note against J. P. Blanks, one of the appellees, for $1,000. On September 9 following he brought this suit in the cironit court of AsMey County against appellees, to set aside certain conveyances of real estate and bank stock by J. P. Blanks to the other appellees for the alleged purpose of defeating appellant and his other creditors from collecting their claims against him, thereby defrauding them. It was alleged that J. P. Blanks was insolvent, and rendered so by conveyances of his real estate and bank stock to his co-appellees, without consideration, and with knowledge by the grantees that the conveyances were made to defeat his creditors. The lands were conveyed by several deeds of conveyance on the 17th day of February, 1926, to L. W. Blanks, a nephew of J. P. Blanks, who subsequently conveyed a part of them to the Elon Company and a part to the Hamburg Investment Company, two corporations which were owned by his brother and himself. On the same day J. P. Blanks assigned his stock, amounting to $19,000, in the Hamburg Bank to L. W. Blanks, who subsequently transferred it to his mother, L. G-. Blanks.

Appellees filed an answer, admitting the conveyances were made, but denying that they were voluntary and without consideration, or that they were made for the purpose of defrauding the appellant and the other creditors of J. P. Blanks.

The cause was submitted to the court upon the pleadings and depositions of the witnesses, which resulted in a dismissal of the complaint of appellant, based upon substantially the following findings, to-wit:

“That each of the conveyances were made in good faith, and for a reasonable and fair consideration, and that none of them were made for the purpose of hindering or delaying the creditors of J. P. Blanks, and that said J. P. Blanks was not insolvent at the time he-made said conveyances herein mentioned by him to L. W. Blanks, and that L. W. Blanks paid a fair consideration in each and every instance, and there was no fraud in any manner in said conveyances to L. W. Blanks, and that L. W. Blanks had a perfect right to transfer said hank stock to L. Gr. Blanks and the lands to the Elon Company and the Hamburg Investment Company, and that none of the parties herein made or received said conveyances with any intent to defraud any creditors of the said J. P. Blanks.”

Appellant contends for a reversal of the judgment upon the ground that J. P. Blanks was insolvent when he instituted this suit, and that the property in question was conveyed to a relative and close friend, who admitted that he purchased same for the purpose of helping his uncle and who, it is claimed, was unable to satisfactorily explain the transactions. Appellant cites the case of Harris v. Smith, 133 Ark. 250, 202 S. W. 244, in support of his contention. The court said in that case that: ‘ ‘ The various transactions were out of the ordinary, and Harris’ explanation of them was unsatisfactory. The learned chancellor correctly found that the stock of merchandise was transferred to the Wyss Lumber & Trading Company without consideration and in fraud of appellees and other creditors, and that the moneys deposited in the City National Bank in the name of Wyss Lumber & Trading Company belonged to B. P. Harris.”

The record in the instant case does not reflect that the several transfers were made without consideration, and that the vendor and vendee were unable to make a satisfactory explanation of the transactions. On the contrary, it appears that the conveyances were made for adequate considerations, and that the consideration received was applied to the payment of bona ficle debts of J. P. Blanks. It also appears that his obligations were pressing, and the only way he could meet them was to sell a large part of his holdings. His nephew came to his rescue, and bought most of his property for a fair market value. He used his mother’s insurance money to buy the bank stock, and paid twenty cents above par for it. After purchasing it he transferred the stock to his mother. He had anlple funds with which to purchase his uncle’s property, and actually paid him cash for it, which was used to pay his uncle’s pressing debts. After conveying the property in question, J. P. Blanks had a large block of stock left in the Boyle Dry Goods Company, and other assets amounting to about $2,500. These transfers were made two year's before the institution of this suit, and just what became of the Doyle stock and his other assets in "the interim does not appear. The rule applied in the Harris case, supra, was that announced by Mr. Chief Justice Hill for the court in the case of Wilks v. Vaughan, 73 Ark. 174, 83 S. W. 913, which is as follows:

“It is thoroughly settled in equity jurisprudence that conveyances made to members of the household and near relatives of an embarrassed debtor are looked upon with suspicion and scrutinized with care; and when they are voluntary they are prima facie fraudulent, and when the embarrassment of the debtor proceeds to financial wreck, they are presumed conclusively to be fraudulent as to existing creditors.”

The rule was applicable and controlling under the facts in the Harris case, supra, but cannot be applied in the instant case, because the facts are entirely different in the two cases. In the Harris case the conveyances were made without consideration and to defraud his creditors, while in the instant case they were made for fair considerations and for the purpose of paying the pressing debts of J. P. Blanks. The findings of the trial court were in accordance with the weight of the evidence. The decree is therefore affirmed.


text:
    Bodnar v. State.
    Opinion delivered April 16, 1928.
    1. Criminal law — misconduct of jurors. — Uncontradicted affidavits filed by accused, after her conviction for selling whiskey, in support of a motion for new trial, stating that two of the jurors, while eating dinner during their separation on the day of the trial, talked about 'the case, saying that from outside reports about people being drunk and fighting at her house she was bound to he guilty whether officers found liquor in her house or not, held to make out a prima, facie case of misconduct by such jurors.
    2. Criminal law — jurors receiving information outside of court. —It is improper for jurors to receive information concerning the merits of a case they are trying, except in open court and in the manner provided by law.
    3. Criminal law — affidavit supporting the motion for new trial. —Uncontradicted affidavits supporting defendant’s motion for new trial, on the ground of misconduct of jurors, must be accepted as true.
    4. Criminal law — knowledge of juror’s misconduct. — Knowledge of accused’s husband, during the trial, of misconduct of jurors while separated, is not ■attributable to accused so as to charge her with negligence in failing promptly to file a motion for new trial on that ground, and filing a motion for a new trial at the same term at which the verdict was rendered, nearly three weeks after conviction, was timely, under Crawford & Moses’ Dig., § 3218.
    Appeal from Sebastian Circuit Court, Greenwood District; J. Sam Wood, Judge;
    reversed.

      A. V. Anderson, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted for selling whiskey in the circuit court of Greenwood District of Sebastian County, and subsequently on? the 10th day of January, 1928, was convicted and adjudged to serve a term of one year in the State Penitentiary as a punishment for the crime, from which judgment this appeal has been duly prosecuted.

On the day of her conviction she filed a motion for a new trial, which was overruled on the following day. She then prayed an appeal to the Supreme Court, which was granted. On the first day of February following, during the same term of court, she filed a motion to set the verdict aside and to grant her a new trial on account of the misconduct of Carter and Hannah, two of the jurors who tried her case, upon the additional ground that they obtained information about her case and talked to each other concerning the same while separated during the noon hour, contrary to the admonition of the court. ’The allegation of misconduct in the amended motion for a new trial was. supported by three affiants, one of them being appellant’s husband, to the effect that, on the day of the trial, while said jurors were eating dinner, during their separation .by permission of the court, they talked about appellant’s case, saying that, from all outside reports about people being drunk and fighting at appellant’s house, she was bound to be guilty, whether what the officers found in her house was liquor or not. It was alleged in the motion that appellant received no information of the conversation or that the two jurors had talked to parties during the noon recess, until after her conviction. The jury were unable to agree upon a verdict before dinner, but did agree and return a verdict of guilty a short time after the noon recess.

Appellant assigns as reversible error the refusal of the court to grant a new trial on account of the alleged misconduct of said jurors.

The uncontroverted affidavits filed by appellant in support of her motion for a new trial made a prima facie case of misconduct on the part of the two jurors. Shropshire v. State, 86 Ark. 481, 111 S. W. 470; Brackenridge v. State, 27 Tex. App. 513, 11 S. W. 630, 4 L. R. A. 360.

Receiving information .by jurors relative to the merits of a case they are trying, except in open court and in the manner provided by law, is improper. Capps v. State, 109 Ark. 193, 159 S. W. 193, 46 L. R. A. (N. S.) 741, Ann. Cas. 1915C, 957.

The State did not contradict the statement contained in the affidavits, hence they must be accepted as true. The integrity of the trial was impeached by allowing the jurors to receive information of appellant’s guilt or circumstances tending to show her guilt from other sources than through the sworn testimony of witnesses in the case, introduced and examined in the regular way. According to the trend of conversation between the two jurors, the outside reports which they received influenced them in arriving at the guilt of appellant.

It cannot be successfully contended that appellant was negligent in filing her amended motion for a new trial. The knowledge of her husband was not attributable to her on account of the marital relationship. Under our statutory system of criminal procedure a defendant is allowed to move at any time during the term of court at which convicted to set the verdict aside on account of the misconduct of any of the jurors trying the case. Section 3218 of Crawford & Moses’ Digest provides that the application for a new trial must be made at the same term at which the verdict is rendered, unless the judgment is postponed to another term, in which case it may be made at any time before judgment. It was said in the case of Corning v. Thompson, 113 Ark. 237, 168 S. W. 128, that a motion for a new trial should be made at the same term at which the judgment is rendered.

The judgment is reversed, and the cause is remanded for a new trial.