text:
    Miners’ Bank of Joplin v. Churchill.
    Opinion delivered December 11, 1922.
    1. Appeal and error — time for appealing — estoppel.—Where an appeal was dismissed on motion of appellees on the ground that it was not final in failing to adjudicate certain questions, and subsequently, by entry nunc pro tunc, the judgment was amended to show that such questions were determined, appellees could not move to dismiss a subsequent appeal taken more than six months after the original judgment but within six months from the amendment, since appellees, having .taken the position on the first appeal that the original judgment was not final, could not, on second appeal, take the inconsistent position that the judgment was in fact final.
    2. Judicial sales — payment of taxes due. — Cr.awford and Moses’ Dig., § 10056, providing that whenever land shall be sold in partition proceedings or at judicial sale the court shall order the taxes against such land discharged out of the proceeds of such sale, relates to all judicial sales, and not merely to sales in partition proceedings.

      3. Statutes — adoption prom another state. — Where a statute was adopted from another State, it is presumed that the Legislature adopted the previous interpretation thereof by the court of last resort of the State from which it was borrowed.
    4. Judicial sales — payment of taxes due. — Crawford and Moses’ Dig-., ^ 10056, providing that when land is sold at judicial sale the court shall order the taxes against such land discharged out of the proceeds, has reference to the date of sale, meaning the day on which the land is bid in by the purchaser, and not to the confirmation.
    5. Mortgages — payment op taxes prom proceeds. — A foreclosure decree need not contain a direction for payment of taxes out of the proceeds of sale, but the court may direct such payment at any . time before distribution of the fund.
    Appeal from Van Burén Chancery Court; Ben F. McMahan, Chancellor;
    affirmed.

      Brundidge <& Neelly, for appellant.
    The rule caveat emptor applies in this case. Crawford & Moses’ Digest, §§ 10055a, 10056, being § 166, Acts 1883, p. 199, does not apply to the facts in this case. It applies to cases where a tract of land is owned by two or more persons or tenants in common, and one party fails to pay his taxes and the land is sold. In such case the taxes may be taken out of his part of the purchase price. The statute has reference to land which has become delinquent for taxes, and where the court orders the taxes, etc., to be discharged out of the proceeds of such sale. The latter part of the section, § 10056, C. & M. Digest, refers back to the first part of the same section, being § 10055, Id., and, therefore, does not apply to foreclosure sales. 93 U. S. 424; 96 Fed. 910.

      J. F. Koone, for appellee, Patton.
    1. The appeal is too late, not having been perfected within six months after the rendition of the decree. C. & M. Digest, § 2140. A nunc pro tunc amendment relates back to the time when the. original entry was made. 69 Ark. 433; 108 Ark. 523; 134 Ark. 386; 74 Ark. 181.
    2. The statute in question appears to have been taken from the Ohio statutes, being in the exact language of section 77, vol. 2, Bevised Statutes of Ohio (1860), now appearing as § 5692 of Page & Adams’ General Annotated Code of the Statutes of Ohio, vol. 3 (1910), and comes to this State impressed with the construction ■ placed thereon by the court of last resort in that State, prior to its enactment here. The court’s construction..of the statute was contrary to appellant’s contention here. 13 Ohio St. 201; 30 Id. 436. That court’s construction was adopted with the enactment of the statute here. Lewis’ Sutherland Statutory Construction, vol. 2, § 4; 117 Ark. 457; 113 Ark. 552; 109 Ark. 479. Taxes in this State are charged against land from and after the first Monday in January each year, O. & M. Dig. § 10016. The sale in' this case was on January 11, 1919. The court, under this statute, could order the tax paid out of the proceeds of the sale either at the time of confirmation of the sale or thereafter.' 30 Ohio St. 436.
   McCulloch, C. J.

Appellant instituted an action in the Van Burén Chancery Court against appellees Churchill and Sutterfield to foreclose a mortgage on real estate, and final decree was rendered in the action on November 11, 1918, for recovery of the debt and for the sale of the mortgaged real estate by the commissioner of the court, who was directed to advertise and sell in the manner and upon the terms specified in the decree.

The sale was made by the commissioner on January 1.1,1919, after due publication of notice, and S. K. Patton became the purchaser at the sale for the price of $2,010, which was considerably less than the amount of the decree in appellant’s favor.

At the next regular term of the court, on May 12, 1919, the commissioner’s report of sale was confirmed by the court, and the commissioner was directed to pay the taxes for the year 1918, amounting to $561, out of the purchase price of the land. Appellant prosecuted an appeal to this court from that decree, but the appeal was dismissed by the judgment of this court on the ground that the decree appealed from was not final, in that it failed to adjudicate that any taxes were due, and failed to fix the amount thereof and render judgment for the same. Miners’ Bank of Joplin v. Churchill, 141 Ark 211.

At the next term of the court after the dismissal of the appeal, appellant filed a motion in the chancery court to correct the record of the former decree by ordering the commissioner to pay over to appellant, as plaintiff in the original decree, the amount which had been reserved for the payment of taxes. Thereupon Patton, the purchaser at the sale, filed a response to appellant’s petition and also asked the court to correct the former order nunc pro tunc by showing a specific finding of the court as to the amount of taxes, and directing the commissioner to pay the same. On the hearing of - these motions, the court entered an order nunc pro tunc so as to make it contain a finding by the court that the amount of taxes due on the land sold under the decree was the sum of $561.11, and directed that same he paid out of the proceeds of the sale. Another appeal has béen prosecuted from the decree of confirmation as amended nunc pro tunc.

Appellees again moved the court to dismiss the present appeal on the ground that it was taken more than six months after the order was made directing the payment of taxes.

It is conceded now that the order was final within the rule laid down by this court on the former appeal, hut appellees contend that, notwithstanding the order was amended nunc pro tunc, and long after the expiration of six months from the time of the order, the appeal must have been prosecuted within six months, notwithstanding the amendment, and that for this reason the present appeal is too late.

Counsel for appellees rely on the decision of this court in Chatfield v. Jarratt, 108 Ark. 523, where we held that an appeal runs from the date of the rendition of the judgment, and not from its entry, even though it is entered nunc pro tunc at a subsequent date or at a subsequent term. There is another principle, however, to he considered, which, we think is not in conflict with the decision in the case just cited, and which precludes appellees from insisting on a dismissal of the appeal for the reason that it was prosecuted after the time prescribed by the statute. This principle is that of estoppel, based on the fact that appellees, took the ¡benefit of a dismissal of the former appeal on the ground that there was nó final judgment, and, having received that benefit, they cannot take an inconsistent position by insisting that the judgment was in fact final.- In other words, they made their election to stand upon the proposition on the former appeal that the judgment originally appealed from was not final, and now they cannot be heard to insist that the decree was final at the time it was originally entered, and that the time for appeal expired six months thereafter, under the statute. There is no reason why this principle should not be applied here for the purpose of preventing an obviously unjust deprivation of appellant’s exercising his right of appeal.

Treating the case as being here properly on appeal, we approach the merits of the controversy and find that they relate to the question whether or not the taxes for the year 1918, which had fallen due prior to the date of the sale, could be treated as an incumbrance on the land to be borne by the purchaser, or whether it should be paid out of the proceeds of the sale.

It will be seen from the record that the decree was rendered on November 11, 1918, and the sale at which Patton became the purchaser was made by the commissioner on January 11, 1919; that the sale was confirmed and the order on the commissioners to pay the taxes out of the proceeds of the sale was rendered on May 12, 1919.

Our statute provides that a lien for taxes as between grantor and grantee shall attach on the first Monday in January of each year. Crawford & Moses’ Digest, § 10023. At the time of the sale there'was then unpaid taxes due on the land Avhich constituted a lien in faAror of the State and county. It was Avell established at common Mav that the rule of caveat emptor applied to purchasers at judicial sales, and that the purchaser took • the land subject to all incumbrances existing at that time, including tax liens. This rule was changed as to tax liens, however, by statute which is a part of the general revenue laws enacted by the General Assembly of 1883. Acts of 1883, p. 199. Section 166 of that statute is divided up into two sections by the digesters (Crawford & Moses’ Digest, §§ 10055-56) and reads as follows:

“In all cases where any tract of land may he owned by two or more persons as joint tenants, coparceners, tenants in common, and one or more proprietors shall have paid or may hereafter pay the tax, or tax and penalty, charged on his proportion of such tract, or one or more of the remaining proprietors shall have failed, or may hereafter fail, to pay his proportion of his tax, or tax and penalty, charged on said land, and partition of said land has or shall he made between them, the tax, or tax and. penalty, paid as aforesaid, shall be deemed to have been paid on the proportion of said tract set off to the proprietor who paid his proportion of said tax, or tax and penalty, and the proprietor so paying the tax, or tax and penalty, as aforesaid, shall hold the proportion of such tracts set off to him, as aforesaid, free from the residue of the tax, or tax and penalty, charged on said tract before partition, and the proportion of said tract, set off to the proprietor who shall not have paid his proportion of said tax, or tax and penalty, remaining unpaid, shall be charged with said tax, or tax and penalty, in the same manner as if said partition had been made before said tax, or tax and penalty, had been assessed. Whenever any land so held by tenants in common shall be sold upon proceedings in partition, or shall he taken by the election of any of the parties to such proceedings, • or when any real estate shall he sold at judicial sale, or by administrators, executors, guardians, or trustees, the court shall order the taxes and penalties and the interest thereon 'against such lands to be discharged out of the proceeds of such sale or election.”

The contention of appellant is that the words, “or when any real estate shall be sold at judicial sale,” have reference to the preceding language concerning lands held by tenants in common, and that they do not relate to all judicial sales. We are of the opinion that this contention is not borne out by the language of the statute. In addition to that, it appears that this statute was copied from an Ohio statute enacted in the year 1859, which was interpreted by the Supreme Court of that State prior to the enactment of the statute here. In those decisions the language of the statute was construed contrary to the contention of appellant. Ketcham v. Fitches, 13 Ohio St. 201; Hoglen v. Cohan, 30 Ohio St. 436. The statute having been borrowed from another State, it is presumed that our lawmakers adopted the interpretation of it theretofore by the court of last resort of the State from which it was borrowed.

In the cases cited, the Ohio court construed the statute to mean that all taxes due and unpaid up to the date of the sale should be paid out of the proceeds of the sale, and should be paid by the commissioner when so ordered by the court.

It was also decided by the court that the statute, being in derogation of the common law, should be strictly construed, and that it did not embrace redemption from tax sale, but only embraced the discharge of tax liens due the State. In a later case it was decided by the court that the statute did not include local improvement assessments. Cincinnati v. Lingo, 13 Ohio Cir. Ct. 334; 7 Ohio Cir. Dec. 356; Cincinnati v. Sterritt, 57 Ohio St. 654.

In the present case the tax lien comes within the statute as interpreted by the Ohio court, which interpretation came to us by adoption. The language of the statute has reference to date of sale, meaning the day on which the land is bid in by the purchaser, and not to the confirmation. Robertson v. McClintock, 86 Ark. 255.

The question suggests itself as to when, under the statute, the order of the court must be made, whether at the time of-the decree or later, before the fund is paid out by the commissioner. We think that the statute itself declares that the tax shall be paid out of the proceeds of the sale, and it is not essential that the original decree directing foreclosure shall contain a direction for such payment, but the court may direct the payment at any time before the fund is disbursed. This is evidently the interpretation of the Ohio court from the discussion in Hoglen v. Cohan, supra.

It follows therefore that the court was correct in directing the payment of the taxes of the year 1918, which accrued and were payable prior to the date of sale, out of the proceeds of the sale in the hands of the commissioner.

Affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Daniels v. Wagner.
    Opinion delivered December 11, 1922.
    1. Replevin — bail bond. — Where a defendant in replevin, being arrested under a capias clause, executed a bond for her discharge under Crawford & Moses’ Dig., § 8645, stipulating that she would abide and-perform the judgment of the court, such bond is a bail bond, and not a bond for the delivery of property, and a recital in the bond that it is for the use and benefit of the ■plaintiff is mere sur-plusage, and would not change its character to that of a delivery -bond.
    2. Bail — remedy on bond.- — In the case of a bail bond in replevin, there must be an execution issued, and a return made against both defendant’s property and person of nulla bona and non est inventus before plaintiff is entitled to recovery against the sureties on the bail bond.
    Appeal from Pulaski Circuit Court, Second Division; Guy Fulh, Judge;
    reversed.

      Coleman, Robinson S House, for appellants.
    This was a bail bond under section 8645, Crawford & Moses ’ Digest. Appellee did not follow the provisions of chapter 7 of Crawford & Moses’ Digest to fix liability. An execution with, command to take the body of defendant and a return of non est must be had before the bondsmen can be held liable. 47 Ark. 388; 5 Ark. 691. The nature of the bail bond is not affected by naming the plaintiff as obligee instead of the officers. 6-Me. 229. Decisions construing delivery bonds- are not in point here. 114 Ark. 257.

      J. A. Comer and Cohn, Clayton S Cohn, for appellee.
    This case is ruled by 114 Ark. 257. The bond in the present case contained -all the requirements of a delivery bond and a bail bond, except, that it is not made to the sheriff to protect him, but was made to him for the use and benefit of the plaintiff. Under the above case it was a delivery bond, and the fact that other conditions were inserted would not change its nature. It cannot be held to be-a statutory bail bond. 82 Ark. 407. It would be a vain act not required by law to have execution against the body of defendant after the sheriff had stated in his return that he had made diligent search and had failed to find her.
   Wood, J.

Appellee instituted an action against Mrs. Lee Redler, to recover the possession of a seven-diamond cluster ring alleged to be of the value of $450. Mrs. Redler was arrested under the provisions of §§ 8642 and 8644 of Crawford & Moses’ Digest. She executed the following’ bond, under provisions of § 8645, C. & M. Digest:

“We, the undersigned, acknowledge ourselves to be indebted to W. E. Taylor, sheriff of Pulaski County, Arkansas, for the use and benefit of M. O. Wagner, in the sum of nine hundred ($900) dollars, conditioned as follows:
“Whereas, Mrs. Lee Redler has been taken into custody under a writ of replevin containing a capias clause, and desires to execute a bond for release, as. provided in § 8431, Kirby & Castle’s Digest. Now, if she wifi abide the order and judgment of the court of the above entitled action, and cause special bail to be put in and the same be required, then this bond shall be null and void, otherwise remain in full force and virtue.”

The bond was signed by Mrs. Lee Redler as principal and by Joe Daniels and M. J. Sullivan as sureties,- and Mrs. Redler was released from custody.

At the trial of the action in replevin the appellee recovered judgment for thé possession of the ring, and, in the alternative, for its value in the sum of $350. An execution was issued at the instance of the appellee commanding the sheriff “to have of the'estate” of Mrs. Redler the amount of the money judgment recovered by the appellee against her. The return on the execution was as follows:

“This writ came to hand on May 20, 1921, and after diligent search I failed to find the witliin-named Mrs. Lee Redler, and after diligent search I have failed to find any property belonging to the defendant subject to execution. This writ is therefore returned wholly unsatisfied. At said county as therein commanded.” Signed by the deputy sheriff.

Appellee then instituted this action against the appellants, setting up the bond in replevin and the proceedings as above set forth, and alleged that she had neither received the ring nor the value thereof, and that her judgment in replevin therefore was wholly unsatisfied, and prayed for judgment against the appellants in the sum of $350, the amount of her judgment in replevin.

The appellants entered a general demurrer to the complaint, which was overruled. Appellants then answered, admitting the proceedings in replevin as set forth in appellee’>s complaint, -and set up that the bond upon which appellee’s action was predicated was a bail bond; that appellants had offered to deliver the person of Mrs. Redler to the sheriff of Pulasld County in fulfilment and discharge of the provisions of the bond; that the sheriff’s office advised the appellants that the execution in his hands was for the property only, and that it did not want the person of Mrs. Redler; that the appellants at all times had been ready and willing to deliver Mrs. Redler to the sheriff of Pulaski County, or produce her in court, if so required, and had so notified the appellee and the sheriff to that effect.

In addition to the exhibits of the appellee’s complaint, she introduced the pleadings in the action in replevin, and the appellants introduced testimony tending to prove the allegations of their answer to-the effect that, after judgment was obtained against Mrs. Redler and before execution was issued, and thereafter, they offered to surrender Mrs. Redler at any time, in fulfilment and satisfaction of the requirements of their bond. - The testimony tended to show that the' appellants’ attorney was advised by the attorney for the appellee when the execution was issued, and that the appellants’ attorney then went to the sheriff’s office and examined the copy of the execution, and thereupon advised the sheriff’s office that the bondsmen were ready to surrender Mrs. Redler whenever it desired her, and that the sheriff’s office did not make any- request for her, and she was therefore not delivered to the sheriff.

By consent of the parties the cause was tried by the court sitting as a jury, and judgment was rendered in favor of the appellee against the appellants in the sum of $364.64, from which judgment is this appeal.

1. The bond upon which this action is founded and upon which appellee obtained her judgment follows substantially the.requirements of § 8645, C. & M. Digest, and was a bail bond. Under the facts of this record the trial court construed it otherwise, and in so doing erred.

The appellee contends that the judgment in her favor should be sustained under the authority of O’Brien v. Alford, 114 Ark. 257, but the language of the bond in that case is entirely different from the language of the bond under review. In O’Brien v. Alford, the bond contained the provision that the “defendant, M. F. Long, shall abide the order and judgment of the court in this action, and that he will deliver to the plaintiffs the property sought to be replevied in their complaint, or, in lieu thereof, will pay to them the value of said property, as the court may direct.” In the present case the bond reads: “Whereas, Mrs. Lee Redler has been taken into custody under a writ of replevin containing a capias clause, and desires to execute a bond for release, as provided in § 8431, Kirby & Castle’s Digest. Now, if she will abide the order and judgment of the court of the above entitled action, and cause special bail to be put in and the same be required, then this bond shall be null* and void. * * * ” Section 8431 of Kirby & Castle’s Digest, referred to in the bond, is the same as § 8645 of Crawford & Moses’ Digest.

It will be observed that the words “will abide the order and judgment of the court in this action” are practically the same in both cases, but they are used in entirely different connections. The context is wholly different. In O’Brien v. Alford, supra, the defendant bound himself to “abide the order and judgment of the court in the action and to deliver to the plaintiffs the property sought to be replevied,” etc. Here the defendant bound herself to “abide the order and judgment of the court and cause special bail to be entered, if the same be required. ’ ’ The bond also in the present case contains the express provision showing that Mrs. Redler, the defendant, “desired to execute the bond for release,” according to the provisions of the statute providing for the discharge of the defendant from arrest. In O’Brien v. Alford, supra, we said: “In the sense in which the terms ‘to abide the order and judgment of the court’ are used in the bond under, consideration, they mean the same as the terms ‘to perform the judgment of the court’ as prescribed by § 6863, supra. This would not be the case, of course, but for the other language used in the bond. In Duncan v. Owens, 47 Ark. 388, we held that these terms, when employed in connection with the capias clause of our statute in replevin, constitute a bail bond as specified by §§ 6858 and 6959, above.”

In the case at bar the words “will abide the order and judgment of the court in the above entitled action” are employed in connection with the capias clause. In the bond tbe obligors (appellants) acknowledge themselves to be indebted to W. E. Taylor, sheriff, “for the use and benefit of M. O. Wagner.” The bond was thus made payable directly to the sheriff, and was for his protection in case the defendant in replevin failed to surrender herself. The words, “for the use and benefit of M. O. Wagner,” could not have the effect of changing the character of the bond from a ¡bail to a delivery bond. The entire procedure under the capias clause of the replevin statute, supra, and providing for the discharge of the defendant, is, in a certain sense, for the 'benefit of the plaintiff in replevin. See Pease v. Norton, 6 Me. 229. The sheriff has no personal interest in the proceedings. The words “for the use and benefit” are not employed in the statute providing for the discharge of the defendant, and the addition of these words in a bond executed to the officer in his name, with the addition of the name of his office, could not, as we have said, have the effect of changing the character of the obligation from a bail to a delivery bond. The words “for the use and benefit of M. O. Wagner,” added after the name of the sheriff, were not essential under the statute to give validity to the bail bond, and these words, in connection with the other language of the bond, do not show that it was the intention of the parties to constitute a delivery bond instead of a bail bond.

We conclude therefore that this bond is a bail bond under the provisions of § 8645, Crawford & Moses’ Digest, and not a delivery bond under the provisions of § 8649, Crawford & Moses’ Digest.

2. Being a bail and not a delivery bond, the next question is, was the appellee entitled to judgment against the appellants on the bond? After the judgment in replevin was entered, the appellee had an execution issued which commanded the sheriff as follows: “That of the estate of Mrs. Lee Bedler you cause to be made the sum of $350 which M. O. Wagner lately in our circuit court recovered against Mrs. Lee Bedler,” etc. Under our statute (§ 454, C. & M. Digest) there could not be any liability on the bail bond under consideration until an execution had been, issued against the body of Mrs. Redlcir and the return made thereon that she could not be found. In this case the execution itself shows that it was not directed against, the body of Mrs. Redler. Furthermore, the undisputed testimony shows that, after the judgment was rendered against Mrs. Redler and before, as well as after, the execution was issued, appellants offered to surrender her to the sheriff. The return of the sheriff on the execution recites that “he was unable to find the within Mrs. Lee Redler,” but this return was not called for by the execution in the sheriff’s hands, and must therefore be treated as surplusage. The execution itself shows that the appellee was not proceeding against the person of Mrs. Redler, as it was only issued against, her property. But it was essential to recovery on the bail bond that the execution be issued against both her propert3T and person and that the return cf nulla bona and non est inventus be made on the' execution before appellee was entitled to recoverv against the appellants. Mayor and Aldermen v. Johnson, 5 Ark. 691; Duncan v. Owens, supra. In the above cases-we hold that, before there can be a recovery on a bail bond, there must be a capias ad satisfaciendum issued and a return thereon of non est inventus.

In the case at bar no showing was made by the ap pellee as to why the execution was not issued against the person of Mrs. Redler. On the contrary, the undisputed testimony shows that, if such an execution had been issued, she would have been surrendered by the appellants in obedience thereto.

The judgment in favor of the appellee against the appellants is erroneous, and the same is therefore reversed, and the cause remanded for a new trial.


author: Hart, J.

text:
    Williams v. State.
    Opinion delivered December 11, 1922.
    1. Rape — carnal abuse — evidence of prior intercourse. — In a prosecution for carnally knowing- a female under the age of 16, in violation of Crawford & Moses’ Digest, § 2720, evidence of acts of sexual intercourse between such female and defendant before that charged is admissible, where not too remote in point of time, as showing- the relation and intimacy of the parties, their disposition and antecedent conduct towards each other and as corroborating her testimony as to the act charged.
    2. Rape — instruction as to prosecutrix’s age. — In a prosecution for carnally knowing a female under the age of 16, an instruction which failed to mention defendant’s age as one of the elements of the offense was not error where no specific objection w-as made, and where, in other instructions, the jury were told that they could not convict unless -they found that prosecutrix •was under the age of 16.
    3. Criminal law — instruction—invasion of jury’s province.— In a proscution for carnally knowing a female under 16, an instruction referring to the female as a girl held not er- , roneous as invading the jury’s province where defendant in his testimony and his counsel in examining her referred to her as a girl.
    4. Criminal law — former testimony of absent witness. — Testimony given at the examining trial, where accused was present and had opportunity to cross-examine the witness, may be read in evidence on the trial without violating accused’s right to be confronted with the witnesses, where the witness is too ill to attend court at the term of court, as well"as where he is dead or out of the court’s jurisdiction or his whereabouts cannot be learned.
    5. Criminal law — former testimony of absent witness. — In determining whether the former testimony of a witness absent on account of illness should be admitted in evidence or the case be continued until the next term, -much must be left to the discretion of the trial court.
    6. Criminal law — absent witness — continuance.—Inhere the testimony of an absent witness, as given at accused’s preliminary examination, is of such a character that the rights of the accused can be better protected by the presence of the absent witness, the court should continue the case until the next term.
    7. Criminal LAW' — evidence.—In a prosecution for carnally knowing a female under 16, admission of her testimony that she contracted a venereal disease from defendant, who denied having had sexual intercourse with her, or that he had such disease, was not prejudicial, where the court told the jury that it was submitted solely for what it was worth in determining the truth or falsity of her testimony.
    Appeal from Prairie Circuit Court, Southern District; George W. Clark, Judge;
    affirmed.

      George W. Emerson and Cooper Thweatt, for appellant.
    ■ J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Hart, J.

Clint Williams prosecutes this appeal to reverse a judgment of conviction against him for carnally knowing a female person under the age of sixteen years, in violation of the provisions of § 2720 of Crawford & Moses’ Digest.

The first assignment of error is that the court erred in admitting other acts of sexual intercourse between the prosecuting witness and the defendant than the one charged in the indictment.

This assignment of error is based upon the testimony of the prosecuting witness to the effect that the defendant had intercourse with her on several different occasions and at different places in the southern district of Prairie County, Ark. This assignment of error is not well taken. By the weight of authority and the better reasoning in prosecutions for carnal abuse upon a female under the age of consent, acts of sexual intercourse between the prosecuting witness and the defendant prior to the act charged in the indictment may be given in evidence as tending to sustain the principal charge by showing the relation and intimacy of the parties, their disposition and antecedent conduct towards each other, and as corroborative of the testimony of the prosecutrix touching the particular act relied upon for a conviction.

It cannot be doubted that it is competent to show the behavior of the parties toward each other and other acts of impropriety and indecency, when not too remote in point of time. It would be contrary to reason to admit such evidence and yet exclude evidence of sexual intercourse which would tend to show that the crime charged was one likely to be committed by the defendant upon the person of the prosecuting witness. 22 R. C. L., § 40, p. 1205, and cases cited. See case note to Boyd v. State, (Ohio) 18 Ann. Cas. 441, at 443; case note to Cecil v. Territory (Okla.), 8 Ann. Cas. 457, at 459; case note to People v. Gibson (Ill.), 48 L. R. A. (N. S.) 236, and State v. Driver, 14 A. L. R. 917. This is also the effect of our holding in Williams v. State, 103 Ark. 70.

It is also assigned as error that, in one of its instructions to the jury, the court did not define the age of the prosecuting witness as one of the elements of the crime. This fault in the instruction should have been met by a specific objection. The court in other instructions plainly told the jury that it could not convict the defendant unless it found that he had sexual intercourse with the prosecuting witness within three years before the indictment was found, and that she was under sixteen years of age at the time. Doubtless, if the court’s attention had been called to the omission, it would have changed the language of the instruction to meet the objection of the defendant.

Again, it is claimed that the court invaded the province of the jury by referring to the prosecuting witness as a girl, in one of its instructions. We do not agree with the defendant in this contention. Throughout his own testimony the defendant refers to the prosecuting witness as a girl. His own counsel in examining her referred to her as a little girl.

The next assignment of error is that the court erred in introducing the written statement of Eosa Deer, taken at the preliminary examination of the defendant. Eosa Deer was the mother of the prosecuting witness, and, according to the testimony of the deputy sheriff, was sick in bed at Stuttgart, Ark., which is in a county adjoining that in which the trial was had.

According to the testimony of Eosa Deer, taken at the examining trial, she saw the defendant in the act of sexual intercourse with her daughter. Our Constitution provides that the accused shall be confronted. with the witnesses against him. Art 2, § 10 of the Constitution of 1874. But it has been uniformly held by this court that the testimony of a witness taken at an examining trial, where the defendant was present and had the opportunity to cross-examine the witness, may be given in evidence on the trial of the defendant, where such witness, at the time of the trial, is dead or is out of the jurisdiction of the court, or his whereabouts cannot be learned, without any violation of the constitutional right of the accused to be confronted with adverse witnesses. Sneed v. State, 47 Ark. 180; Kelley v. State, 133 Ark. 261, and Gray v. State, 143 Ark. 201.

Judge Cooley states the exceptions to the rule that the accused has the right to be brought face to face with the witnesses against him as follows:

“If the witness was sworn before the examining magistrate, or before a coroner, and the accused had an opportunity then to cross-examine him, or if there were a former trial on which he was sworn, it seems allowable to make use of his deposition, or of the minutes of his examination, if the witness'has since deceased, or is insane, or sick, or unable to testify, or has been summoned but appears to have been kept away by the opposite party.” Cooley, Constitutional Limitations, 7 ed. 451. To the same effect see Bishop’s New Criminal Procedure, 2 ed. vol 2, 1191 and 1201, and Greenleaf on Evidence, 15 ed. § 163.

The common-law rule has been announced to be “that if due diligence has been used, and it is made manifest that the witness has been sought for and cannot be found, or if it be proved that he was-subpoenaed and fell sick by the way, his deposition may be read, for-that, in such case, he is in the same circumstances as to the party that is to use him as if he were dead.” State v. Harvey, 28 La. Annual 105, and Archbold’s Criminal Procedure, vol. 1, p. 147-314. There is a conflict in the authorities in this country as to whether the witness must be permanently or critically ill or only too ill to appear at the term of the court at which his case is tried.

In Spencer v. State, 132 Wis. 509, 13 Ann. Cas. 969, it is held that such testimony is only admissible when the witness is ill with no hope of recovery. Other nases recognize a much broader rule in this regard. It has been' held that'where the witness has been duly subpoenaed and became sick so that he is unable' to attend the term of the court at which the case is to be tried, his evidence given on the former trial, or at the examining trial of the defendant, may be read in evidence. State v. Wheat, (La.) 35 Sou. 955, and People v. Droste (Mich.) 125 N. W. 87.

The whole subject is exhaustively treated by Prof. Wigmore. Wigmore on Evidence, §§ 1395-1417.

In sec. 1406, the learned author said:

"Any physical incapacity preventing attendance in court, except at the risk of serious pain or danger to the witness, should be sufficient cause of unavailability; and this has been almost universally recognized by courts. Certain distinctions, however, have from time to time received special notice, (a) The duration of the illness need only be in probability such that, with regard to the importance of the testimony, the trial cannot be postponed. (b) As to the degree of the illness, the traditional phrase, ‘so ill as not to be able to travel,’ sufficiently indicates the requirements of common sense; and the ‘ability’ is to be considered with reference to thn risk of pain or danger to the witness.”

This rule comports with sound reason, and is in accord with our own decisions on the question.

In McNamara v. State, 60 Ark. 400, the court quoted from G-reenleaf on Evidence substantially as laid down above. This, shows that the mind of the court was expressly directed to the rule in that case. There the subpoena had been issued for the witness, who could not be found, and the officer returned that he was informed by those who knew him that he was out of the State. The court said that the defendant had the power to cross-examine the witness at the coroner’s inquest, and was legally called upon to do so. The witness’ testimony taken at the coroner’s inquest was allowed to be read to the jury, without any showing that the witness was permanently out of the jurisdiction of the court.

Again, in Kelley v. State, 133 Ark. 261, the testimony taken at the coroner’s inquest of an absent witness was allowed to be read to the jury, on the showing by the sheriff that he had gone to the usual working place of the'witness to serve a subpoena on him, and was told that the witness had gone to Louisiana. The court held that the absence of the witness from the State was sufficiently established to justify the introduction of his evidence given before the coroner. If the State is not required to show that a witness who has left the State intends to remain permanently absent, it would seem that there would be no good reason to require the State to show that a witness who is ill is permanently so, and not merely too ill to attend at the term of the court at which the case is tried.

In the present case the absent witness was the mother of the prosecuting witness. The prosecuting witness testified that her mother was at home, sick in bed. She had been duly subpoenaed to attend the trial, and an attachment was issued for her, and the deputy sheriff, who was sent to serve it, reported to the court that she was sick in bed-and under the care of a physician. The court knew the length of the term of the court, the relationship of the absent witness to the prosecuting witness, the importance of her testimony, and all of the attendant circumstances. In cases of this sort much must be left to the discretion of the trial court in order to prevent the trial of cases from being unnecessarily delayed. Where the testimony of the absent witness is of such a character that the rights of the accused can be better protected by the presence of the absent witness, the court should continue the case until the next term. This course would depend upon the particular circumstances of each case.' No such showing was made here. When all the circumstances are considered, it cannot be said that the court erred in finding that the witness was too ill to attend at that term of the court, or erred in admitting the testimony of the witness taken at the examining trial of the defendant.

The action of the court in allowing the prosecuting witness to testify that she had contracted a venereal disease from the defendant is also assigned as error. The • defendant denied having sexual intercourse with the prosecuting witness, and denied having a venereal disease. The court told the jury that the evidence was submitted to it as a circumstance to be considered for whatever it might be thought worth in determining the truth or falsity of the evidence of the prosecuting witness, and for no other purpose. This had the effect of eliminating any prejudice that might have resulted to the defendant from the jury considering it as affirmative evidence tending to corroborate the testimony on the main fact.

.We find no prejudicial error in the record, and the judgment will be affirmed.


author: Hart, J. (after stating the facts).

text:
    Jacks v. Central Coal & Coke Company.
    Opinion delivered December 11, 1922.
    Corporation. — venue of suit against foreign corporation. — A foreign corporation doing business in the State and having designated an agent upon whom process may he served may be sued on a transitory cause of action in any county of this State by serving summons on the designated agent outside the county in which suit is brought.
    Appeal from Jackson Circuit Court; Dene II. Coleman, Judge;
    reversed.
    STATEMENT BY THE COURT.
    This is an action for personal tort brought by John Jacks against the Central Coal & Coke Company.
    The plaintiff was injured while in the employment of the defendant in one of its mines in Sebastian County, Ark., by coming in contact with k live electric wire, which the coal company had negligently failed to guard, and which had been charged with electricity at the time the plaintiff was injured. By coming’ in -contact with the wire the plaintiff was injured to the extent that the vision in his left-eye was wholly destroyed. He brought this suit against the defendant to recover damages for his injuries, in the circuit court of Jackson County, Ark.
    The defendant filed a motion to dismiss the case upon the ground that it was a foreign corporation and had no business, or property, or money due it, in Jackson County, Ark. It alleged that the plaintiff’s cause of action occurred in Sebastian County, Arkansas, where its property is located and where its business is transacted.
    The court sustained the motion, and dismissed the complaint of the plaintiff.
    From the judgment rendered the plaintiff has duly prosecuted an appeal to this court.

      Gustave Jones and G. L. Grant, for appellant.
    The court erred in dismissing the complaint of the plaintiff. The venue was properly laid. 115 Ark. 524; 59 Ark. 583; 140 Ark. 135.
    Service upon T. B. Pryor, agent, was sufficient to give the court jurisdiction. C. & M. Digest, § 1829.

      Pryor & Miles and John W. Goolsby, for appellee.
    There was no error in dismissing the plaintiff’s complaint. C. & M. Digest, sec. 1174. The court did not have jurisdiction. 140 Ark. 135.
   Hart, J. (after stating the facts).

The sole issue raised by the appeal is whether or not the court erred in sustaining the motion of the defendant to dismiss the complaint on the ground that it could not be properly sued in Jackson County, Ar.k.

.It is conceded that the State may require a foreign corporation to submit to the terms imposed by the statute as a condition precedent to carrying on business in the State. Under our Constitution, among those terms may be the designation of an agent to receive service of process in suits brought in the courts of this State. Art. 12, sec. 11 of the Constitution of 1874.

Sec. 1826 of Crawford & Moses’ Digest, in. prescribing the terms upon which a foreign corporation may do business in this State, provides that it shall designate its general office or place of business in this State, and shall name an agent upon whom process may be served.

Sec. 1829 provides that service of summons and other process upon the designated agent shall be sufficient service to give jurisdiction over such corporations to any of the courts in this State, whether the service was had upon said agent within the county where the suit is brought or is pending or not.

. In construing these sections, in American Hardwood Lbr. Co. v. Ellis & Co., 115 Ark. 524, and Pekin Cooperage Co. v. Duty, 140 Ark. 335, this court sustained the proposition that a foreign corporation may be sued on a transitory cause of action in any. jurisdiction where it may be found, in the sense that service may be perfected by serving the summons upon the designated agent of such corporation in another county than that in which the suit was brought.

In those cases it was expressly contended that transitory actions against foreign corporations must be brought in the county where service of summons could be had upon the agent of such corporation designated in the manner provided by the statute. The court said that the language of the statute should not be so limited, and, as above stated, held that in transitory actions service of summons might be had on- the designated agent of the foreign corporation within the State outside of the county where the suit was brought. '

But it is insisted that the rule announced in those oases does not control here, and that the venue in the case at bar is governed by sec. 1174 of Crawford & Moses’ Digest. This section provides that an action other than one of those mentioned in sacs. 1164 and 1165 against a nonresident of this State, or a foreign corporation, may be brought in any county in which there may be property of or debts owing the defendant.

It may be stated here that an action for personal tort is not one of those mentioned in secs. 1164 and 1165. In this connection it may also be stated that sec. 1176 provides that every other action may be brought in any county in which the defendant, or one of the several defendants, resides, or is summoned. Both of these sections are a part of our civil code, which was enacted many years before secs. 1826 and 1829, prescribing* the terms upon which foreign corporations may do business in this State and the manner of obtaining personal service upon them, were passed.

A comparison of secs. 1174 and 1176 with secs. 1826 and 1829 of the Digest will show that they were enacted to serve different purposes and to operate in different fields. The language of sec. 1174 shows that it refers to constructive service upon nonresidents and foreign corporations, and means that they may only be sued by constructive service in counties where they have property or debts owing them. The reason is that, in cases where constructive service is obtained against nonresidents or foreign corporations, the court can only acquire jurisdiction over their property and not over their persons. This is shown by sec. 1176. It is evident from the language used in it that a natural person who is not a resident of this State might be sued in this State if found within its borders and served with summons, although he might be merely passing through the State, or visiting here for a short time, and not transacting any kind of business in the State.

So in Moores v. Winter, 67 Ark. 189, it was held that an action for a common-law tort is a personal action which may be maintained in any county in the State where the defendant is found and served with process. An action for personal tort is transitory in its nature. The rule that the defendant might be sued and served with process wherever found, in transitory actions, did not obtain in the case of foreign corporations. The reasoil is that presence within the territorial limits of the State is necessary to give jurisdiction. in cases where personal service is required. In cases of foreign corporations the mere passing through the State of the chief officer of the corporation would not. give the courts of this State jurisdiction of the corporation. The corporation could not come into this State that way. But it is present in the State when its officers transact business in behalf of the corporation in the State, under authority conferred by the laws of the State. So it was deemed necessary by the Legislature to prescribe the terms upon which foreign corporations might do business in this State, and to provide for personal service upon them in cases where they might be sued as the result of transacting business here. Hence secs. 1826 and 1829 were passed.

As we have already seen, these sections have been construed by the court to mean that a foreign corpora-tion may be sued on a transitory cause of action in any county in this State where it can be found, in the sense that service may be perfected by serving the summons upon the agent of the corporation designated by it to receive service. In short, we have held that a foreign corporation which has complied with our own statute with regard to the transaction of business in this State may be sued in a purely personal action which is transitory in any county in this State, by serving the summons upon the designated officer of such corporation outside of the county wherein the suit-is brought.

It follows from the views we have expressed that the court erred in sustaining the motion of the defendant to dismiss the case against it, and for that error 'the judgment will be reversed and the cause remanded for further proceedings according to law.


text:
    Lanier v. Norfleet.
    Opinion delivered December 11, 1922.
    Notaries — residence in county. — Residence in the county wherein he is appointed is essential to constitute either a de jure or de facto notary public, and where a notary public permanently removes from the county in which he was appointed to act, affidavits subsequently taken by him in another county are nullities.
    Appeal from 'Crittenden Circuit Court, First Division; W. W. Bandy, Judge;
    affirmed.
    STATEMENT OF FACTS.
    On the 28tli day of August, 1922, W. J. Lanier instituted an action against M. B. Norfleet, Sr., in the Crittenden Circuit Court, to contest Ms nomination for senator in the TMrty-second Senatorial District of the State at the primary election of the Democratic party-held on August 8, 1922.
    The specific grounds of the contest were stated in the complaint, and need not be repeated here, because they are not necessary to a decision of the issue raised by the appeal.
    With the complaint was filed an instrument in writing’, signed by ten reputable citizens of Crittenden County, Art., who are members of the Democratic party, to the effect that the statements in the complaint were true to the best of the knowledge, information and belief of each of the subscribers thereto. Then follow the signatures of the ten persons, and it purports to have been subscribed and sworn to before O. F. Templeton, notary public.
    Among other grounds, the defendant, Norfleet, moved to dismiss the complaint because O. F. Templeton was not at the time a duly commissioned and acting notary public. On this point the case was tried upon an agreed statement of facts as follows:
    “That O. F. Templeton was formerly a citizen of Clay County, and was granted a commission as notary public by the Governor of the State of Arkansas while residing there. That subsequently the said O. F. Temple-ton moved to Crittenden County, Arkansas. That in the year 1921 he assessed his personal property in Crittenden County for taxation; that he paid his poll-tax due for the year 1921 in Crittenden County, Arkansas, and that he'voted in Jasper Township in Crittenden County, Arkansas, in the primary election held August 8, 1922, and since his removal to Crittenden County he has continuously resided there and has continuously exercised the duties of notary public under the commission as issued to him in Clay County, Arkansas, and that he has received no additional appointment as notary public in any county in the State of Arkansas from the Governor, and that his term of office under his Clay County appointment expires February 24, 1923; by the terms of that appointment, and as such notary public, under the Clay County commission, he took the affidavits of the affiants to the affidavit supporting the complaint filed in this cause. That-O. F. Templeton has filed no bond in Crittenden County, where he has exercised the duties of notary public, but- immediately after the execution of the Clay County commission the said O. F. Templeton filed in the office of the Circuit Clerk of Clay County, Arkansas, a bond conditioned as required by the statute. That said O. F. Templeton is now and lias been since his appointment. single and unmarried, but the family of his father reside and are citizens of Clay County, Arkansas, and that said Templeton has made trips to Clay County, visiting the said family of his father.”
    The court held that O. F. Templeton was not a notary public at the time he attempted to take the affidavits in question, and dismissed the complaint for want of jurisdiction.
    From the judgment rendered the plaintiff, W. J. Lanier, has duly prosecuted an appeal to this court.

      Berry & Wheeler, W. J. Lanier and Frank Berry, for appellant.

      1. Templeton was a notary public de jure, and there was no defect in the affidavit. From territorial days up to 1901 the office of necessity was a county office. See Law of Arkansas Territory, 1835, p. 438; English, Digest 1848, p. 752; Acts 1848, p. 32; Constitution, 1868, art. VI, § 16; Acts 1874, p. 61. But the Legislature of 1901, Acts 1901, p. 148, provided “that the powers and authority of notaries public shall be coextensive with the State for the purpose of swearing witness and taking depositions” and this was further enlarged by the act of 1905, Acts 1905, p. 687. 107 Ark. 272; 84 Ark. 537; Const. 1874, art. 19, § 4.
    2. If he ceased to be a notary public de jure when he removed from the county, he was, at any rate, a notary public de facto, and his acts cannot be questioned collaterally, as is attempted here. 38 Ark. 150; Id. 571 ; 49 Ark. 439 ; 55 Ark. 81; 38 Conn. 449; 9 Am. Rep. 409; 132 Ark. 58; 65 Ark. 343; 129 Ark. 286; 133 Ark. 277; 147 Ark. 178; 134 Ark. 535; 42 Ark. 46.

      Rudolph Isom, J. W. House, Jr., L. G. Going and 8. II. Mann, for appellee.
    The filing of the affidavit was jurisdictional. C. & M. Digest, § 3772; 136 Ark. 217; 206 S. W. 131. Templeton vacated his office of notary public by removal from Clay County. Art. 19, §4, Const. 1874. It is a county office. C. & M. Digest, § 7969. That it was the legislative intention that only persons residing in the ■county were eligible for this office is made clear by §■§ 7976 and 7975, Id. And the last named section does away with the contention that he was still a de facto officer, even though not such de jure. Removal for temporary purposes is protected by the Constitution, art. 19, § 7. But here the removal was permanent.
    Where a vacancy is created by statute a judicial determination is not necessary. 140 Am. St. Rep. 181; 113 Id. 512 and note 517; 100 Calf 537; 131 Ky. 384; 22 R. C. L., p. 438, § 93, and p. 256, § 264; 54 Pac. 805; 61 Atl. 172; 27 Tex. App. 558; 141 Mich. 31; 104 N. W. 324.
   Hart, J. (after stating the facts).

Sec. 3772 of Crawford & Moses’ Digest confers a right of action on any candidate to contest the certification of vote as made by the county central committee, and provides that the action shall be brought in the circuit court within any county in the circuit or district wherein any of the wrongful acts occurred, if the contest is for a circuit or district office. It provides further that the complaint shall be supported by the affidavits of at- least ten reputable citizens, within a designated number of days.

This court has held that the filing of the affidavits in the manner prescribed by the statute is a prerequisite to the exercise of jurisdiction by the court in a contested election case brought under the act. Logon v. Russell, 136 Ark. 217, and Ferguson v. Montgomery, 148 Ark. 83.

This makes it necessary to decide whether or not' O. F. Templeton was a notary public de jure or de facto, at the time the instruments in question purport to have been subscribed and sworn to before him.

This court has held that a notary public is a public officer. Sonfield v. Thompson, 42 Ark. 46, and Gray v. Hodges, 107 Ark. 272.

After the admission of the State in 1836, by an act of the General Assembly of November 23, 1837, it was provided that the Governor should, by and with the advice and consent of the Senate, appoint one notary public in each county. Revised Statutes of Ark., p. 588. Sec. 6 of the same act provides that if any notary die, resign, or remove from the county, or be removed from office, his record book and all his public papers shall be delivered to the clerk of the county court to be delivered to his successor.

The Legislature of 1848 amended the act so that the county court of each county might appoint one notary public. Acts of 1848, p. 32.

The Legislature of 1874 provided that the Governor may appoint a convenient number of notaries public for each county, who shall be citizens of the county for which they are appointed, and who shall file in the office of the recorder of deeds for the county a bond to the State, for the faithful discharge of their duties, in the sum of $1,000 with security to be approved by the clerk of the circuit court of the county, and who shall hold office for the term of four years. Crawford & Moses’ Digest, § 7969. . .

The Legislature of 1905 amended the act to give a notary public power coextensive, with the State for the purpose of swearing witnesses, taking affidavits, etc. Sec.- 7970a.

.Section 7975 is the same,provision as that quoted above as section 6 of the Revised Statutes.

It is contended that, under these sections of the statute, a notary public is a State officer, and, although from a particular county, he may remove to another county in the State and still continue to be a notary public until his term of office expires. In making this contention, counsel lay special stress on the fact that, under the statutes, a notary public may take affidavits or acknowledgments in any county in the State. We cannot agree with counsel in this contention. Whatever the extent of the territorial jurisdiction conferred upon him, he is an officer of the county. One purpose contemplated by (lie statute, as expressly shown by its language, is that the Governor may appoint a convenient number of notaries for each county. The same section further provides that they shall be citizens of the county for which they are appointed and file a bond with the recorder of deeds for the county.

Sec. 7975, which, as we have already seen, was a part of the Revised Statutes, provides that, if any notary die, resign, or remove from the county, or be removed from office, his record book and all his public papers shall be delivered to the county clerk. All these provisions clearly indicate that it was the intention of the Legislature for a notary public to be a county officer, and that his permanent removal should work an abandonment or forfeiture of Ms office. TMs is in accord with the provisions of art. 19, sec. 4 of our present Constitution, which reads as follows:

“All civil officers for the State at large shall reside within the State, and all district, county and township officers within their respective districts, counties, and townships, and shall keep their offices at such places therein as are now or may hereafter he required by law.”

The general rule is that if the law requires an officer to reside in the county or district in which he holds his office, and during his term he ceases to reside in such county or district, his removal to another county or district operates as an abandonment of his office, and creates a vacancy therein.

Of course, this would -not apply to a merely temporary removal for business or pleasure, with no intention of abandoning his office. People v. Brite, 55 Cal. 79; Yonkey v. State, 27 Ind. 236; Relender v. State, 149 Ind. 283, 49 N. E. 30; Lyon v. Commonwealth, 6 Ky. (3 Bibb) 430; Curry v. Stewart, 71 Ky. (8 Bush) 560; McGregor v. Allen, 33 La. Ann. 870; State v. Shirving, 19 Neb. 497, 27 N. W. 723; In re Bagley, 27 How. Pr. 151; Crawford v. Saunders, 9 Tex. Civ. App. 225, 29 S. W. 102, and Ehlinger v. Rankin, 9 Tex. Civ. App. 424, 29 S. W. 240.

It follows, by necessary implication, from the language used in the several sections of the statute and the section of the Constitution above quoted, that the office of notary public would undoubtedly become vacant by the removal of the incumbent from the county in and for which he was appointed a notary public. It cannot in any sense bo said that, because he may act in any part of the State in taking affidavits and acknowledgments, he becomes a State officer. Such a holding would be contrary to our previous decisions bearing on the subject. To illustrate: In this State a justice of the peace has always been a township officer, vested under the Constitution with limited judicial powers. In addition to being a judicial officer, the justice is a ministerial officer. The taking of acknowledgments to deeds and the administering of oaths are ministerial acts. These duties are in no wise connected with the judicial powers of the justice, and, being ministerial, it has been held that the officer performing them is not limited to his appropriate territorial jurisdiction in the performance of them, but that he may take affidavits and acknowledgments in any part of the State Biscoe v. Byrd, 15 Ark. 655.

In Relender v. State, 49 N. E. 33, in construing a substantially similar provision of the Constitution of Indiana, the Supreme Court of that State said: “Members of a board of commissioners are certainly county officers, and, by the positive command of the Constitution, they are required to reside within the county where they serve as such officers, and perform such duties as the law may direct. The provision of our fundamental law which restricts residence of a county officer to his county must be construed as requiring him to be a resident thereof, not in the general sense of that term, but he is required to actually reside therein during the time he is the incumbent of the office. This holding is fully supported by the decision in the appeal of State v. Allen, 21 Ind. 516. That the title of a public officer may be terminated and his office vacated by abandonment, is a rule of law settled beyond controversy. As the Constitution exacts of a county officer the duty to actually reside in the county in which he holds his office, if he violates this provision of ¡the law, by voluntarily ceasing to reside therein during his term, it will operate as an abandonment of the office, and ipso facto a surrender of all of his right and title to the office.” (Citing authorities).

The undisputed evidence shows that Templeton had removed permanently from Clay County, of which he was a citizen when he was appointed a notary public, to Crittenden County, of which he was a citizen at the time he took the affidavits in question. Consequently, having abandoned his office by his permanent removal to another county, it became vacant, and he was no longer a de jure officer. An officer de facto must not only perform the duties of the office with public acquiescence, but lie must also be in possession of it. Faucette v. Gerlach, 132 Ark. 58.

It is true that tlie record shows that Templeton was exercising the function of notary public, taking affidavits, acknowledgments, etc., at the time he signed the jurat to the affidavits in question as a notary public, but it cannot be said that he was in possession of the office.

As we have already said, the act with regard to the appointment of notaries public and their duties must be read together and construed as a whole. When this is done, it is evident that the Legislature intended to make a notary public a county officer, and to create a vacancy in such office when he removed to another county.

This is indicated not only by sec. 7969, describing the qualifications of the notary, but also by the provisions of sec. 7975, ordering the delivery of his public papers to the county clerk when any notary dies, resigns, removes from the county, or is removed from'office. By necessary implication the statute, when construed in connection with the clause of the Constitution above quoted, makes a permanént removal from the county an abandonment of his office, and creates a vacancy in it. The office is a statutory one, created for the convenience of the inhabitants of a county, and for their convenience the notary may exercise his functions in any part of the State, but this does not make his office migratory. After Templeton removed permanently from Clay County, he abandoned his office and thereby created a vacancy in it. He did not attempt or pretend to keep an office in Clay County, and he could not carry it with him. Therefore he did not remain in possession of his office and thus perform one of the essential requirements of an officer de facto.

It follows that the circiut court was correct in holding that Templeton was not either a notary public de jure or de facto, and that therefore there was no compliance with sec. 3772 of the Digest in filing with the complaint the affidavits of ten reputable citizens. The complaint was properly dismissed for want of jurisdiction, and the judgment will be affirmed.


author: Smith, J.

text:
    Cruce v. Hill.
    Opinion delivered December 11, 1922.
    Appeal and error — proceedings after remand. — Where, in an action by a taxpayer to recover from a commissioner of a road improvement district sums illegally paid to him by the board of commissioners, the Supreme Court, on appeal, remanded the cause with directions to ascertain the amount illegally paid and to render judgment therefor, the -trial court had no authority to-entertain a counterclaim by defendant’s administratrix for a per diem, f-o-r his attendance at board meetings, in -the absence of of a direction therefor in the mandate of the Supreme Court.
    Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      Strait & Strait, for appellant.

      J. Allen Eades, for appellee.
   Smith, J.

This is the second appeal of this case, the opinion on the former appeal being found in 146 Ark. at page 61. The question raised on the former appeal was whether Cruce, who was a member of the board of commissioners of a road improvement district, was entitled to receive compensation for services, rendered in superintending the construction of the road. The case arose on the suit of a taxpayer to recover back from the commissioner, for the benefit of the district, salary paid the commissioner for 'such services. The court below denied the plaintiff the relief prayed, on the ground that the contract was an advantageous one for the improvement district; but. we reversed that decree for-the reason that the contract between the commissioner and the district was illegal, and, being illegal, it was unimportant to determine whether it was advantageous or not.

The opinion on the.former appeal concludes as follows: “It follows, from what we have said, that the court should have granted the relief prayed, and the decree will therefore be reversed and the cause remanded, with directions to ascertain the sum paid appellee (not including the per diem allowed him as a commissioner), and to render judgment against appellee for its recovery, and to enter an order restraining the commissioners from further employing appellee in any capacity, so long as he continues in office as a commissioner of the district.”

After the remand of the cause Cruce died, and the cause was revived in the name of the widow as special administratrix. She filed a counterclaim" against the district covering an amount claimed to be due Cruce by the district for per diem in attending board meetings as a commissioner of the road district, and depositions were taken on that issue.

The court below refused to consider this new testimony, and entered a decree containing the following recitals: ‘ ‘C. E. Cruce received the sum of $2,100 paid to him as and by way of salary for services rendered upon said roads, which, under the decision of the Supreme Court in this cause, was held to be illegal and improperly paid to him, and defendant offered in testimony proof that the said C. E. Cruce was a member of the board of commissioners,- and as such attended meetings of said board of commissioners, and asked for credits for the number of said board meetings held at the rate of $5 per day as an offset and credit upon the amount so received, which said testimony and consideration of said counterclaim and credits was by the court excluded at a hearing thereof, for the reason that the court held that, under the decision of the Supreme Court in said cause on appeal therein, he was not authorized to consider or determine said credits.”

We think the court below correctly interpreted and followed the direction of this court on the remand of the cause. The direction was to ascertain the sum paid Cruce for the illegal services, and to render judgment therefor. There was no question in the case at that time of a counterclaim, and permission was neither asked nor given to bring that issue into- the case. The language quoted in the parenthesis, “not including the per diem allowed him as commissioner,” was inserted to show that we were making no ruling oil that subject, as it .was not before us. The issue of compensation as commissioner was brought into the case only by amending the pleadings after the remand of the cause and taking further testimony, and, as has been said, no authority for that action was given.

The case of Felker v. McKee, 154 Ark. 104, is decisive of the question presented here. In that case we held that, where a chancery case was tried on its merits and was reversed on the appeal, and remanded for further proceedings according to law and not inconsistent with the opinion, it was not within the discretion of the lower court to permit the parties to further develop the case, unless the mandate contained specific directions authorizing that to be done. Deason & Keith v. Rock, 149 Ark. 401.

The court below therefore properly refused to consider an issue not raised on the original appeal, and, as the decree accords with the direction of this court, it is affirmed.


text:
    Taylor v. Board of Commissioners of Cache River Drainage District No. 2.
    Opinion delivered December 11, 1922.
    1. Drains — legislative approval of assessments. — The Legislature may assess betterments in improvement districts and ■ validate assessments made by other agencies, such as drainage commissioners, though such assessments were not approved by the county court.
    2. Constitutional law — notice of special act — legislative question. — Objection that no notice was given of intention to apply for the passage of a special act cannot be raised in the Courts, since that matter is addressed solely to the Legislature.
    3. Constitutional law — due process — act validating drainage assessments. — Act No. 273 of Acts Ex. Sess. 1920, confirming drainage assessments miade by the board of commissioners of a drainage district, is not arbitrary and capricious in providing that any property owner aggrieved may show cause against his assessment within twenty days after approval of the act, twenty days for such purpose constituting due process of law.
    4. Drainage — collateral attack on assessment. — The method provided by statute for attacking the validity of an assessment of benefits is exclusive, and a collateral attak upon an assessment which has become final because of the failure to 'attack it within the time and manner provided by law will not lie unless the assessment is void on its face.
    5. Drains — validity op act confirming assessments. — An attack upon the validity of a special act confirming drainage assessments on the ground that it contains no provisions for assessing damages in favor of landowners whose lands were taken in the construction of the ditch will not be considered where no claim for damages against the district was .presented.
    6. Constitutional law — manner op passage op act. — Whether the passage of an act was obtained in a fraudulent and surreptitious manner cannot be considered by the courts, which cannot inquire into the motives of the legislators, nor the means by which they were induced to act.
    Appeal from Greene Chancery Court; Archer Wheatley, Chancellor;
    affirmed.

      George A. Burr, for appellants.
    The answer set up a good defense. 83 Ark, 54; 172 TJ. S. 269; 181 TJ. S. 324; 237 S. W. 80; 131 Ark. 59; 198 S. W. 262; 97 Ark. 334; 86 Ark. 1; 119 Ark. 188; 181 TJ. S. 324; 181 TJ. S. 371; 181 TJ. S. 396; 239 TJ. S. 478; 216 S. W. 680; 240 TJ. S. 555; art. 2, sec. 22, Const, of 1874. Equity will relieve from an act of the Legislature procured by fraud. 4 H. & MeH. 6; 3 Smed. & Mar. 715; Kerr on Fraud & Mistake, p. 295; 20 Amer. Dec. 372.

      Fuhr é Futrell, for appellee.
    The demurrer was properly sustained. 117 Ark. 30; 138 Ark. 131; 138 Ark. 471; 139 Ark. 130. Act No. 273, Acts of 1920, is valid. 83 Ark. 344; 98 Ark. 113; 112 Ark. 357; 143 Ark. 270; 144 Ark. 632. The answer set up conclusions. 144 Ark. 632; 145 Ark. 51.

      George A. Burr, for 'appellants, in reply.
    The answer sets up facts. 145 Ark. 51; 144 Arki 632.
   Smith, J.

This suit was brought by the commissioners of a drainage district in Greene County to enforce the payment of certain delinquent drainage assessments against lands lying in that county. The delinquency of the lands was not denied, but the owners filed answers attacking the assessments.

The answers alleged an attempt to organize a drainage district under the provisions of act 279 of the Acts of 1909, which, with the amendments thereto, appear in C. & M. Digest as sections 3607-3654. That assessments of benefits had been made by the commissioners, but had not been approved by the county court, as required by the provisions of the act under which the proceedings were being had. That by a special act of the General Assembly, No. 273, which was passed at the extraordinary session in 1920, the proceeding was lifted out of the county court and the assessments approved and confirmed by said act, subject to a proviso contained therein, that any property owner who felt aggrieved at his assessment might, within twenty days after the approval of the special act, show cause, in the chancery court of Greene County, against said assessments. The act provided that, if such showing was not made within the twenty days limited, the assessments should become final and incontestable. It was alleged in the answers that this special act was passed without notice to the landowners, and that its passage was procured by false representations to the General Assembly concerning its purposes and provisions. It was also alleged that the assessments so approved and confirmed by the General Assembly were arbitrary and confiscatory, in that they were greater than the value of the lands at the time said assessments were confirmed, and larger than the value of the lands will be or would be after the improvement proposed and contemplated by the confirmation was fully completed, and that the effect of said assessments was to destroy the value of the land.

A demurrer to the answers was sustained, and a decree rendered condemning the land to be sold.

The authority of the Legislature to assess betterments in improvement districts has been repeatedly recognized, and the Legislature may validate assessments • made by other agencies. Sudberry v. Graves, 83 Ark. 344; Moore v. Board of Directors, 98 Ark. 113; Gibson v. Spikes, 143 Ark. 270; Burr v. Beaver Dam Drainage Dist., 145 Ark. 51.

It is true the assessments .had not been approved by the county court. But that fact did not deprive the Legislature of its power to approve and confirm them. McCord v. Welch, 147 Ark. 362; Payne v. Road Imp. Dist. No. 1 of Howard County, 149 Ark. 491.

The allegation that the landowner had no notice of the pendency of the special act cannot be considered by us, for the reason that this court has many times held that all questions relating to the sufficiency and form and proof of notice of intention to apply to the General Assembly to pass a special act are matters addressed solely to the Legislature. Gibson v. Spikes, supra.

It is argued that, although the Legislature may make an assessment of benefits in an improvement district, or may validate such an assessment made by some other agency, the Legislature cannot do so arbitrarily and capriciously; and it is insisted that the allegations of the answer are such as to require the courts to review an assessment having legislative confirmation. It appears, however, that the act gave landowners twenty days in which to show cause against any particular assessment; and this court has held that an act giving twenty days for that purpose constituted due process of law. St. L. I. M. & S. R. Co. v. Drainage Dist., 138 Ark. 131. The special act provided a forum in which the assessments might be attacked, and gave time for that purpose, and the law is, as announced in numerous decisions of this court, that the method provided by statute for attacking the validity of an assessment of benefits is exclusive, and must be pursued within the time and manner provided by the statute, and that a collateral attack upon such an assessment, which has become final because of the failure to attack it within the time and manner provided by the 1aw, will not lie unless tlie assessment is void on its face. Pierce v. Drainage Dist. No. 17, 155 Ark. 89, and cases there cited.

Another attack on the special act confirming the assessment of benefits is that it made no provision for the assessment of damages in favor of landowners whose lands were taken in the construction of the ditch. In answer to this attack, it may be said that- the case presents no question of the assertion of a claim for damages against the improvement district. The relief prayed is that the payment of delinquent assessments be enforced, and this was the relief granted by the decree appealed from.

The allegation that the passage of the act was obtained in a fraudulent and surreptitious manner is disposed of by the opinion in the case of Little Rock v. North Little Rock, 72 Ark. 195, where it was said: “It is equally clear that we cannot inquire into the motives of the Legislature in passing the act nor into the means by which they were induced to enact it. The allegation in the complaint that the passage of the act was obtained in a fraudulent and surreptitious manner cannot be considered, for we have no right to inquire into or consider such matters. If courts should enter upon such inquiries, and annul laws because they seem to be unwise or impolitic, or because improper influence was brought to bear upon the Legislature to secure their passage, no one could rely upon any law until it had been submitted to the courts for their approval. The adoption of such a rule would invest the courts with legislative as well as judicial powers, and would be clearly in violation of the provision of our Constitution which declares that one department of the government shall not exercise the powers conferred upon another and different department.” See also, the annotated case of Atchison, T. & S. F. Ry. Co. v. State, 40 L. R. A. (N. S.) 1, 28 Okla. 94, 113 Pac. 921.

No valid defense against the assessments having been shown, a decree directing the sale of the lands for nonpayment thereof was properly entered, and is affirmed.


text:
    Papan v. Thomason.
    Opinion delivered December 11, 1922.
    1. Landlord and tenant — conversion op crop. — Evidence that a landlord in possession of a crop refused to divide -it in kind or to sell and divide the proceeds, as provided in the contract 'under which the crop was grown, held to establish a conversion.
    2. Landlord and tenant — date op conversion op crop. — A tenant entitled to one-half of a crop, who has made several demands either for a division or sale, as provided by contract, has a right to treat the date of the last demand and refusal -as the date of conversion and to sue for value on that date.
    3. Landlord and tenant — conversion—tender op advances. — A tenant -suing the landlord for conversion of his half of the crop is not required as a condition of suing to tender the amount of advances made by the landlord where the contract was that the advances were to be paid out of the proceeds of the crop, and the plaintiff offered to make payment in that manner.
    4. Landlord and tenant — conversion op crop — waiver.-—Where, after an action for conversion was brought by a tenant against his landlord for refusal to deliver half of a rice crop to which plaintiff was entitled, defendant allowed plaintiff to sell the crop, which he did for a -lower price than was obtainable -at the time of the conversion, held that such acceptance and sale of the crop by plaintiff was not a waiver of the conversion, unless it was was tendered and accepted as such, -and that .the delivery of the crop operated only to reduce the damages.
    Appeal from Arkansas Chancery Court, Northern District; John M. Elliott, Chancellor;
    affirmed.

      George G. Lewis, for appellant.
    The proof fails to show conversion. Cooley on Torts (3rd ed.) vol. 2 p. 859; 119 Ark. 343; 34 Ark. 427; 26 R. C. L. 1131; 10 Ark. 211; Bowers on Conversion, secs. 2 and 570; 38 Tenn. 51; 35 Tenn. 275; 78-Wis. 329. The amount of the lien must be tendered before the cause of action accrues. 38 Cyc. 2058; 79 Ark. 95.

      J. F. Eoltsendorf and Chas. B. Thweatt, for appellees.
    The lease should be construed most strongly against the grantor or the person who prepared it. 24 Cyc. 215; 112 Ark. 1; 115 Ark. 166; 235 S. W. 1001. It was implied that tenant was to receive his share within a reasonable time... 24 Cyc. 1472; 145 Ark. 119. If appellee was an employee, tiren appellant should have delivered one-half the crop as wages. 112 Ark. 354; 87 Ark. 475; 54 Ark. 346; 48 Ark. 264. There was a conversion here. 38 Cyc. 2029; 7 R. C. L. 824; 31 L. R. A. 698. The conversion was not waived. 29 Ark. 365; 83 Ark. 10; 89 Ark. 342; 38 Cyc. 2102-3; 148 Ark. 117; 26 R. C. L. 1113 and 1155. The appellee was entitled to the highest market value. 38 Cyc. 2096; 26 R. C. L. 1151.
   Smith, J.

Papan and Thomason, the parties to this litigation, made a contract in writing for growing a crop of rice in the season of 1919. Papan owned the land, and was to furnish the fuel, etc., and was designated as the party of the first part. Thomason was to do the work, and was designated as the party of the second part.

The contract provided that “said second party agrees to seed one hundred eighty acres with rice, and furnish all necessary labor to raise, harvest, and deliver said crop to nearest railroad station or rice mill, and take care of it until settlement is made, for one-half of the crop. Said second party further agrees to do and perform everything necessary to produce said crop, free of expense to first party, except those things especially mentioned herein that said party agrees to do.”

Papan specifically reserved the granary, where the rice was to be stored, and where it was stored after it liad been harvested. Papan advanced money during the year to the extent of $1,277.54 to enable Thomason to make the crop, and it was agreed between them that these advances should be repaid when the crop was sold.

There were two kinds of rice grown; one kind being known as Blue Bose, of which there were four cars, and a division in kind was made of it, each party receiving two cars; the other kind of rice was called Early Prolific, and there were 3,849 bushels of it, all of which were stored in the granary, the possession of which Papan had reserved in the contract.

The suit was brought by Thomason on the theory that Papan had converted the crop to his own use, and the court below found the fact so to be, and stated the account between the parties on that theory, and the correctness of that finding is the question in the case.

The testimony of the parties is sharply conflicting, and each lias substantial corroboration; but the court found the fact to be that Papan had converted Thomason’s interest in the crop, and on that finding charged Papan with its value. The basis of this finding was that Papan had refused to divide the rice in kind, and had also refused to sell the rice and divide the proceeds of the sale.

The contract is somewhat ambiguous, and leaves in doubt the question whether it creates the relationship of landlord and tenant or that of employer and employee; but the parties agree that this is immaterial, and that the controlling question is one of fact, that question being whether Papan converted the rice.

According to Thomason and the testimony in his behalf, he made a demand for a division of the rice or for a sale of it and a division of its proceeds on six different occasions, the last of such demands having been made on January 9, 1920, and the court fixed the value of the rice as of that day.

There appears to have been no valid reason why the division should not have been made. According to Thomason, the reason assigned by Papan for refusing to make the division was that the price would p:o up, and Papan did not want to sell, and he warned Thomason and Ms employees not to move the rice. The court below evidently credited this testimony, and we cannot say that the finding based thereon is clearly against the preponderance of the evidence, although, as we have said, it was all disputed by Papan and certain witnesses who testified in his behalf. The refusal to divide either the rice or the proceeds thereof, as demanded by Thomason, constituted a conversion and warranted a suit for so doing. Pickering v. Moore, 31 L. R. A. 698; 7 R. C. L. p. 824; Fenton v. Price, 145 Ark. 116; Hooten v. State, 119 Ark. 343; Ray v. Light, 34 Ark. 421.

The testimony shows that the price of the rice had advanced sharply from the time of the first demand for a division until January 9,1920, at which time its market value was $3.25 per bushel. The market advanced slightly, after that, and then commenced to decline and continued to do so, until the rice, for which a price of $6,254 could at one time have been obtained, was finally sold for $1,490.

Papan insists that, if Ms refusal to divide the rice be treated as a conversion of it, he should be charged with its value at the time when Thomason says he first refused, and that at that time the rice was worth much less than $3.25 per bushel.

If the conversion occurred prior to January 9, 1920, then Thomason would have had the right to fix the value of the rice as of the date of the original conversion; but he also had the right to renew his demand for a division at a later date, and this he did at a time when the rice was still in Papan’s possession and subject to division, and Papan should then have divided the rice, although he had previously refused to do so. Thomason had the right, at his election, to fix the date of this last refusal as the date of the conversion, for the purpose of computing its value. See sec. 66 of article on Trover in 26 R. C. L., p. 1151, and cases cited in the notes to the text.

It is argued that Thomason was not entitled to maintain this suit, for the reason that he did not tender Papan the amount due for advances made. In answer to this argument, attention is called to testimony of Papan himself that the advances made by him were to be paid for out of the proceeds of the crop at the time.it was sold; and Thomason testified that he asked Papan how he (Papan) expected him to pay the advances unless the rice was sold, and he told Papan that if it was sold the purchaser might send him (Papan) a check for the advances, and Papan answered that he had a way of getting his money, and again refused to sell the crop or to divide it. It appears therefore that Thomason made a tender of payment in the manner contemplated by the contract when he proposed that the advances be deducted from the proceeds of the sale.

It is finally insisted that, if there was a conversion, there was also a waiver of that act. The basis of this contention is that Papan permitted Thomason to ship the rice to a mill, where it was toll-milled and $700.of the proceeds of the sale then made was paid to Papan, and the remaining $790 was held by the mill until this suit was filed, when that sum was deposited with the clerk of the court, subject to its orders.

This action, to which Papan finally consented, appears to have been what the contract provided should have been done in the first instance, the provisions of the contract being that the second party (Thomason) should “deliver said crop to nearest railroad station or rice mill, and take care of it until settlement is made, for one-half of the crop.”

It is not contended that this was not the best disposition that could then have been made of the rice, or that a better price could have been then obtained for it.

The conversion of the rice was therefore not waived, and Papan was only entitled to be credited with its value at the time of its sale, for the law is that when property has been wrongfully converted, the acceptance of a return thereof by the owner does not waive the conversion, unless it is tendered in satisfaction thereof, and, unless so accepted, the return thereof will only reduce the damages for the wrongful conversion to the extent of the value of the property when returned, and does not defeat an action for the conversion thereof. Norman v. Rogers, 29 Ark. 365; Plummer v. Reeves, 83 Ark. 10; Midland Valley R. Co. v. Fay & Eagan, 89 Ark. 342; Fenton, v. Price, supra; Sloan v. Butler, 148 Ark. 117.

The decree of the court below accords with the views here expressed, and is therefore affirmed.