Volume 104 — Arkansas Reports

Reed, Judge; 1. The court erred in requiring attorneys to disclose by whom they were employed. The authority of a regularly licensed attorney is presumed, and he can only be required to show his authority upon an affidavit of the adverse party, showing substantial reasons why the interests of the adverse, party are jeopardized. 1 Ark. 104; 2 Ark. 358; 40 Ark. 131; 159 Ala. 645, 650; 49 So. 255; 113 S. W. 618; 152 Ala. 243; 44 So. 637; 126 Am.

Martineau, Chancellor; STATEMENT BY THE COURT. On the 23d day of June, 1909, R. E. Wait, and the firm of Stanton & Collamore contractors and builders entered into an agreement in writing, whereby the contractors should provide all of the material and perform all of the work for the erection of. a two-story brick flat building to be situated on the property of Wait on East Sixth Street, between Rock and Sherman, in the city of Little Rock for the consideration of $21,073.

Elliott, Chancellor; STATEMENT BY THE COURT. At the general election held in Lincoln County on September 12, 1910, the question of public road tax was submitted to the voters of Lincoln County under Amendment No. 5 to the Constitution, which provides that a road tax not exceeding three mills may be levied if a majority of the qualified electors of the county shall have voted a public road tax at the general election for State and county officers.

The finding that all the purchase money except the first payment was “from proceeds of personal property of the estate — the proceeds of a small piece of land of the estate sold by the administrator for that purpose, and the rents and profits of the land in controversy,” • was wholly unsupported by the evidence. The testimony of Heard, if true, does not prove the finding.

Elliott, Chancellor; STATEMENT BY THE COURa. Appellee brought an action in ejectment against appellant for certain lots in the town of DeWitt, claiming title thereto under a deed from Hattie Carpenter, wife of appellant.

Carter, Judge; STATEMENT BY THE COURT. The plaintiff W. W. Chitwood sued the St. Louis, Iron Mountain & Southern Railway Company for damages alleged to have been sustained by the negligent killing of his horse, which occurred at a public crossing. W. W. Chitwood, for himself, testified: “The injury to my horse occurred about 6 or 7 o’clock in the morning on the 1st of April, 1911, at a railroad crossing in the town of Curtis.

E. Jeffery, Judge; The court had jurisdiction, and erred in dismissing the petition. 30 Ark. 518; 51 Pac. 691; 58 Ark. 618; 95 S. W. (Ark.) 998. Upon the suggestion of the defendant’s insanity and reasonable grounds for believing him to have been insane at the time of the trial, it was the duty of the court to impanel a jury to inquire into his condition, 88 S. W. 818; 69 Ark. 167; 133 S. W. 598; 72 Ark. 531.

<p>Appeal from Mississippi Circuit Court, Chickasawba District; Will J. Driver, Judge;</p>

Cowling, Judge; STATEMENT BY THE COURT. This is a suit against the appellants to recover damages for the alleged breach of a building contract. The firm of Roland & Gray were contractors and builders, and the other appellants were their bondsmen.

Francis Circuit Court, Hance N. Hutton, Judge; 1. The peremptory instruction to find for the defendant should have been given. The negligence of appellant, if any, was not the proximate cause of the injury, the fright of the horse being an efficient intervening cause. 87 Ark. 576; 76 Ark. 530; 86 Ark. 289 ; 69 Ark. 402 ; 89 Ark. 59; 53 Mich. 278; 124 Fed. 113; 47 Am. Dec. 578.

Defendant is a. corporation engaged in the sawing and manufacturing of lumber at Blytheville, in Mississippi County, Arkansas. Plaintiff was in its employ.

S. Maples, Judge; 1. The demurrer should have been sustained. The act under which this suit was brought imposes an absolute liability for the destruction of property by fire, and is constitutional. 89 Ark. 418; 165 U. S. 1; 121 Mo. 298; Id. 340; 12 Col. 294 ; 62 Conn. 340; 16 Gray (Mass.) 71; 145 Mass. 129; 46 Me. 95; 25 L. R. A. 161, 162. And contributory negligence is not a defense. 2 Col. App. 42; 2 Id. 169; 3 Elliott on Railroads, § 1223, and authorities cited. 2.

<p>Appeal from Cross Circuit Court; W. J. Driver, Judge;</p> <p>STATEMENT BY THE COURT.</p> <p>Lena and Arthur Evans, minors, brought suit by next friend, against the railway company, claiming actual and exemplary or punitive damages for injuries resulting from sickness alleged to have been caused by the negligent and wilful failure of the railroad company’s agents to make a fire and keep comfortably warm its station house at Hickory Ridge, on December 19, 1909, when snow was on the ground, and while they were at said station as passengers intending to take the next train to another station on its line.</p> <p>The railroad company denied any negligence on its part in the failure to make the fire and such wilful misconduct on the part of its agents as would warrant the assessment of exemplary damages, and that any injury resulted to plaintiffs because of the failure of defendant to make the fire.</p> <p>The causes were consolidated on motion and tried together.</p> <p>The facts substantially are that Lena Evans, aged eight years, and Arthur, not yet three years old, were taken by. their mother to Hickory Ridge station, on appellant’s line on December 19, 1909, for the purpose of becoming passengers upon its train to Fair Oaks, and tickets were purchased authorizing their transportation. Snow was on the ground, and the weather was cold, and Lena’s feet were wet upon reaching the station from walking in the snow. There was no fire in the waiting room when they arrived, about thirty minutes before train time, and their mother requested the agent of defendants to build a fire. The agent agreed to do so, and shortly went into the waiting room, put some kindling and waste and coal into the stove, poured oil on it, and struck a match and started the fire. It did not burn, however, and later their mother stated she again requested that a fire be made, but the evidence is conflicting upon this point. None was made, and she and the children were taken by their cousin, Lee Barnett, an eighteen-year-old boy, who brought them to the station carrying Arthur in his arms, to the boarding house of Mrs. Clark, across the street, where there was a comfortable fire, and they remained comfortable until the train arrived.</p> <p>Lena had been sick, having chills, before that day, and had a chill that day, and a week or so later developed a case of pneumonia. Arthur had some trouble with his throat from which loss of voice resulted. The physicians testified, however, that he had stenosis of the throat which was caused by diphtheria, a germ disease, and could not have been occasioned by cold and exposure. They went from Hickory Ridge to Fair Oaks on the train, where they took the Iron Mountain train for Hamlin, from which station they walked about two miles to L’Anguille Spur, being unable to get a conveyance, and it being a flag station. Arthur was carried by G. A. Neal, and Lena walked. The snow was on the ground, and the day cold. Mr. Neal said they stayed at his house during Christmas, and that Lena had recovered from her sickness before they left, without the service of a physician, and that there was no complaining from Arthur, but that he was taken sick, and he thought he had a case of diphtheria after they left his house. The plaintiff, Leña, had been having chills all fall. They drove in a wagon from L’Anguille to his house.</p> <p>The court instructed the jury, giving three forms of verdicts in each of the cases, in one case as follows:</p> <p>“We, the jury, find for the plaintiff, Arthur Evans, and fix his damages at $...........................</p> <p>“Foreman.”</p> <p>“We, the jury, find for the plaintiff, Arthur Evans, for punitive damages, in the sum of $._________________________</p> <p>“Foreman.”</p> <p>“We, the jury, find for the defendent as to the suit of plaintiff, Arthur Evans.</p> <p>“Foreman.”</p> <p>The jury returned a verdict for Arthur Evans for punitive damages only for $250, the form submitted by the court being signed by the foreman and for Lena Evans for punitive damages in the sum of $250 likewise.</p> <p>From the judgments the railroad company appealed.</p> <p>1. There was no evidence to warrant the court in submitting to the jury the question of punitive damages. The third instruction is further erroneous in that it authorized the jury to award punitive damages, if they believed that the agent acted in a wilful or wanton manner, or if he acted without conscious regard of the rights of plaintiffs. 89 Ark. 261; 87 Ark. 123. The testimony is insufficient to sustain a verdict for punitive damages. The element of wilfulness and conscious indifference to the consequence of the agent’s acts is wanting. 53 Ark. 7; 84 Ark. 241; 80 Ark. 158.</p> <p>2. Where no actual damage has been sustained, exemplary damages can not be awarded. 84 Ark. 42; 70 S. W. 778; 26 S. W. 945; 34 S. W. 762 ; 54 S. W. 304; 56 S. W949; 74 la. 141; 7 N. W. 657; 60 Me. 288.</p> <p>1. The court’s charge on the question of punitive damages is incorrectly construed by appellant. It simply means that if the agent wilfully or wantonly persisted in leaving the waiting room without a fire, at the time knowing that his failure to build a fire was causing and would cause plaintiffs to suffer from the cold, and with conscious indifference to the rights of plaintiffs, the jury might assess punitive damages. The evidence fully warrants such a finding and the giving of such instruction. The evidence fully justified a verdict for actual damages, and the mere fact that the jury named the amount they found, “punitive damages,” if erroneous, was harmless.</p> <p>2. In an action of this kind it does not necessarily follow that, because there was no finding of actual damages, punitive damages can not be recovered. 70 Ark. 228; 94 Am. St. Rep. 744; 30 Id. 21; 46 So. 237; 73 Fed. 196.</p>

<p>Trial — improper argument. — Where defendant, being sued as a partner of certain persons, denied in his answer that he was such partner, it was reversible error to permit plaintiff’s counsel, in his closing argument, to assert that defendant admitted in his pleadings that such partnership existed.</p>

Wallace, Chancellor; STATEMENT BY THE COURT. The appellant, plaintiff below, alleged that he was the owner of lot No. 2 in block lettered “I” in the town of Dardanelle, State of Arkansas, by warranty deed from John C. Brooks, the owner of said lot; that from the 11th day of April, 1902, when he received his deed, he had been in the peaceable, open, continuous and adverse possession of the lot.

Martineau, Chancellor; STATEMENT BY THE COURT. This suit was instituted in the Pulaski Chancery Court by Gideon Johnson, a minor, against Ed Bradbury to redeem certain lands sold in June, 1902, for the taxes of 1901. Lawrence Johnson, father of Gideon Johnson, owned the land in controversy, and lived on the same as his homestead until June 6, 1900, when he died. Gideon Johnson and his mother, now Sallie Crane, continued to live on the place until January, 1909.

On the 6th day of July, 1909, a petition was filed in the county court of Craighead County for the formation of a drainage district under the provisions of chapter 46, sections 1414 to 1450, inclusive, of Kirby’s Digest. On the 5th of April, 1910, James A. Stuart and others became parties to the proceeding by filing their remonstrance against establishing the district. On the 3d day of September, 1910, the county court made a final order establishing the district.

Cotham, Judge; STATEMENT BY THE COURT. This is a suit for $1,071.43, by appellee against the insurance company on a policy insuring her against fire loss on hotel and office furniture at the Southern Hotel at Hot Springs. It was alleged that the conditions of the policy were complied with, that a loss had occurred, and judgment prayed for said amount, with 12 per cent, penalty and an attorney’s fee.

E. Bradley, Special Judge; 1. One who performs work and labor on the property of another without a contract has no lien; mere trespassers can have no lien. 71 Ark. 334-7. 2. In a cash sale no title passes until the cash is paid. 23 Oh. St. 311; 176 Mass. 158. The whole price must be be tendered. 40 Kan. 372. No title passed. 3.

Seed, Judge; The court erred in holding that no recovery could be had because appellant had made or filed no motion to retax his cost in the Boone Circuit Court, but had attempted to recover by presenting an account to the county court of Searcy County. Kirby's Dig., § 987; Id. § 1453 ; 4 Ark. 473; 10 Ark. 467 ; 47 Ark. 80; art. 7, § 28,. Const. 1874. Appellant adopted the wrong procedure.

<p>Appeal from Washington Chancery Court; T. Haden Humphreys, Chancellor;</p> <p>STATEMENT BY THE COURT.</p> <p>On the 27th of August, 1909, the appellant city of Fayetteville passed an ordinance providing that abutting property owners of property around the “Square” should lay and construct certain sidewalks and gutters “upon the grade heretofore established or that hereafter may be established.” Section 4 of the ordinance provides “that any person required by the provisions of this ordinance to construct any sidewalk, curb or gutter, who, after due notice, shall fail or refuse to do so for a period of thirty days, shall be guilty of a misdemeanor, and, upon conviction, shall be punished as provided in ordinance 336, passed June 12, 1908.”</p> <p>On the 29th of July, 1910, notice was duly served upon the appellees to build a sidewalk, curbing and guttering in front of appellee’s property. Appellees having refused to construct the sidewalk as ordered, in front of their business house on the “Square,” appellant proceeded to take up the walk which had been there for some years, and which had been used for seven or eight years by the public in the city, and proceeded to change the grade in front of the building to about two feet below where it had been and upon which the original sidewalk existed, and excavated out in front of the building about the same distance, and laid the sidewalk in front of appellee’s building, the surface of which was about nineteen inches below the floor level.</p> <p>About eight or ten years before, the then owner of the building lowered the "floor of the building so as to conform to the grade of the street as it was then being used by the city. From that time the public continued to use the sidewalk that was laid in front of the building, which conformed to the grade of the street at that time, until the present grade of the street was established and the new sidewalk was laid by the city. The old sidewalk was a flagstone walk. This suit was brought by the appellant to recover the cost of the construction of the walk in front of appellee’s building and to have a lien declared on the same for the payment thereof. Appellees filed an answer, and made their answer a cross bill, setting up that they were damaged by reason of the lowering of the grade of the sidewalk in front of their building in the sum of $400, and asked for judgment in that sum.</p> <p>The court, after hearing the evidence, found that the appellee had been damaged by reason of the lowering of the walk in the sum of $150; that the city expended in building the sidewalk $46.67, and rendered a judgment in favor of the appellee for the sum of $103.33, from which judgment both appellant and appellees prosecute an appeal.</p> <p>A city is not liable for damages to an abutting owner by reason of lowering the grade from the natural surface, except in case of negligence or unskilfulness on the part of the city’s agents. 86 Col. 110; 86 Pac. 789; 86 Id. 1046; Dillon, Mun. Corp. (4 ed.) § 995a; 28 Oh. Civ. C. Rep. 173; 85 N. E. 583; 26 Ark. 276; 31 Id. 494; art. 12, § 9, Const.; 14 la. 296; 121 N. Y. 13; 67 Ga. 386.</p> <p>1. A city is liable for damages resulting to an abutting owner from a change of grade. 39 Ark. 167; 69 Id. 600; 98 Id. 206.</p> <p>2. A city can not change the natural surface grade, recognized and treated as the grade of a street for a long time and acquiesced in by the owners of abutting property, even though no actual grade was ever established by ordinance, without compensation for actual damages. 35 L. R. A. 852; 141 111. 351; 120 Mo. 110; 23 L. R. A. 658; 96 Pa. 331; 31 Neb. 635.</p>

J. Driver, Judge; 1. There is no testimony that appellant was connected with or interested in the sale of the whisky. The fact that he was captain of the boat does not make him criminally responsible for violations of the law. 58 S. W. 343; 23 Cyc. 256-7; 9 So. 536. 2. The venue is not proved. The middle of the main channel is the boundary line. 40 Ark. 502; 147 U. S. 239; 5 Am. St. 536; 123 111. 545. Island 37 is in Tennessee. 1.

The alleged demurrer was a mere protest. 2. The record shows on its face a majority favoring the new district. No evidence to the contrary was offered. 54 Ark. 185; Kirby’s Dig., § 7544. 3. The facts warranted a new district, and the court, a court of competent jurisdiction, so found, and it will be presumed to have acted upon sufficient evidence to sustain its finding. 53 Ark. 478; 38 Id. 157. The statute requires a majority of the electors residing in the district.

J. Driver, Judge; STATEMENT BY THE COURT. This suit was brought in a justice’s court, and judgment was rendered against appellant for $105 by default. An appeal was taken to the circuit court, and the case tried, the complaint alleging that appellant agreed by its agent on December 24, 1910, to pay appellee $105 for a wagon damaged by one of its engines in the operation of its road.

This suit was brought by appellants for damages for timber claimed to have been cut and removed from certain lands in township 17, range 7 east, Greene County, 1,560.71 acres of which was situated within the meandered line of Bagwell’s Lake, as shown on the map and plats of the General Land Office and the west fractional half of section 4, out of the lake abutting thereon.

Grace, Judge; 1. The dying declarations of Archard, the testimony of the physicians and the evidence of Bridwell arid Smith concerning the dying declarations were improperly admitted as evidence. None of them stand the legal test. The court did not find that the declarations or answers were made under a sense of impending death. 2 Wigmore on Ev. § 25; 9 Kan. 257, 282-5; 4 C. & P. 544; 2 Lewis. Cr. Cas. 148; Underhill on Cr. Ev. 131, § 103. 2.

The other parties named as defendants in the condemnation proceedings were necessary parties. Kirby’s Dig., § 4431; 49 Ark. 100, 103, 41 Id. 88; 58 Id. 484. Appellant did not show facts to entitle him to a vacation of the former judgment, and (2), the necessary parties were not brought before the court. Kirby’s Dig., § § 4431, subd. 5, 4433; 83 Ark. 17, 90 Id. 44; Kirby’s Dig., § § 6006, 6011; 49 Ark. 100; 74 Id. 43; 65 Am. St. 465; 62 How. Pr. 369; 26 La.

Wells, Judge; STATEMENT BY THE COURT. This suit was instituted by Mattie Thompson in her own right as widow and as next friend of Pebble, Vertie and Tom Thompson, children and only heirs at law of Tom Thompson, deceased, against the Southern Lumber Company, to recover damages for the death of Thompson, alleged to have resulted by reason of the negligence of the appellee company.

Martineau, Chancellor; STATEMENT BY THE COURT. This appeal involves the right of custody to a boy three years of age. The appellant claimed that when she was seventeen years of age she had intermarried with one Wriggin. She states that she became attached to Wriggin, and he asked her to marry him. She consented, but her mother objected to the marriage, and she and Wriggin agreed that they would marry any way and keep it a secret.

E. Jeffery, Judge; 1. The indictment states a conclusion merely; the demurrer should have been sustained. The evidence was insufficient. A conviction for forgery can not be upheld if another wrote the check. 2. The burden is on the State to show that, notwithstanding the misconduct of jurors, no prejudice resulted to the rights of the accused. / 1.

In order to charge a common carrier with special damages for delay in transportation of freight, notice of the circumstances * * * must be given prior to or at the time of the making of the contract of shipment. 74 Ark. 360; 71 Id. 571; 90 Id. 452 ; 88 Id. 77. 2.

Evans, Judge, on exchange; 1. The money was not subject to garnishment. 42 Ark. 62. 2. The bank had no knowledge of the transaction between Kuhi and Rimes. 36 L. R. A. 658; 17 Id. 326; 46 Id. 732; 10 Id. 705; 29 Id. 558; 114 Mo. 519; 21 S. W. 825. 1. The money was owned by Rimes and was subject to garnishment. 2 Shinn on Attachment and Garnishment, § 580; 20 Cyc. 1022; 4 Cush.

Haden Humphreys, Chancellor; 1. The evidence clearly shows that appellee’s attorney occupied toward appellants a relationship of confidence and trust, and his controlling influence is admitted. The burden was on appellee to show the validity of the transaction and that it was not the result of undue influence. 9 Cyc. 410, and cases cited; 9 Cyc. 4.56, and cases cited; Id. 470; 34 Cyc. 1068, and note; 11 Wis. 303; 92 Mo. 250; 46 Mo. 147. 2.

Grace, Judge; STATEMENT BY THE COURT. This suit was brought by Harry Wirbel, a minor, by his mother, as next friend, to recover damages for a personal injury alleged to have been received on account of the negligence of the defendant, by reason of the collapse of a coal hoisting machine, on its premises in its yards, at McGehee, Arkansas.

Cowling, Judge; 1. Appellant was indicted as a principal, but on the trial the State relied upon the fact that he was present aiding and abetting the crime, under § 1563, Kirby's Dig. This statute does not relieve the State from so drawing its indictment that defendant may know exactly what he is charged with. Const. Ark. art. 2, § 10; Kirby’s Dig., § 2243; 64 Ark. 188; 37 Id. 275; 41 Id. 175; 34 Id. 435; 53 Pac. 709; 4 Okla. Cr. 224; 140 Am.

Cowling, Judge; STATEMENT BY THE COURT. This is a suit by Dilby against J. T. Corbell to recover a cultivator and attachments alleged to be worth $5.00. T. A. Kavener, a witness introduced by plaintiff, testified as follows: “I bought a cultivator from Mr. Bobo for Mr. Dilby.

. Appeal from Sebastian Circuit Court, Fort Smith District; Daniel Hon, Judge; STATEMENT BY THE COURT.

Lea, Judge; STATEMENT BY THE COURT. Appellant, who was constable of Big Rock Township, in Pulaski County, Arkansas, was indicted by the grand jury of that county on May 23, 1912, for murder in the first degree. On May 25 the prosecuting attorney filed a petition asking the circuit court in which the indictment was pending to suspend the defendant from office.

98 Ark. 178; 91 Id. 337; 38 Cyc. 1567, 1578. This case is settled by 98 Ark. 178. There was legal evidence of negligence on the part of the engineer. There was nothing to submit to a jury, and the court properly directed a verdict.

Reed, Judge; 1. The act is unconstitutional. Art. 4, § § 1 and 2, Const.; art. 7, § 28, Id.; 24 Ark. 161, 174; 58 Ark. 117, 121; 56 Ark. 148, 156; 138 Ind. 321; 24 Ark. 142. 2. Being such an act as may be shown to be unconstitutional by proof that it is arbitrary, unreasonable and unnecessary, and based upon alleged facts which were not true, it was error to refuse to permit appellant to introduce proof in support of its special plea.

H. Evans, Judge; Both the act of Congress of September 29, 1850, and the act of the State Legislature approved January 18, 1853, Acts 1852 and 1853, p. 176, were grants in praesenti. 85 Ark. 584; 97 U. S. 491, 24 L. Ed. 1095; 103 U.S. 426,26 L. Ed. 578. All persons acquiring portions of the public lands after the passage of the act take the same subject to the right-of-way conferred by it for the proposed road. 74 Kan. 494, 87 Pac. 687; 190 U. S. 267, 49 L. Ed. 639.

Martineau, Chancellor; STATEMENT BY THE COURT. Appellee filed his complaint on May 5, 1909, in the Pulaski .Chancery Court against Hugh McLennan, a building contractor, the appellant, surety on his bond, as such, and eighteen other defendants, alleging that he had agreed with the said McLennan for the construction of a building for an orphanage near the city of Little Rock, to be maintained as a home for indigent orphans, as a public charity; that the contract price of the…

On June 14, 1905, the Citizens’ Life Insurance Company-issued to R. L. Morris a policy on his life in the sum of $5,000 payable at his death to his wife, Mary C. Morris, appellee herein. The annual premium was $127, “less the dividends credited thereon.” The Citizens’ National Life Insurance Company succeeded to all the assets and liabilities of the Citizens’ Life Insurance Company.

Martineau, Chancellor; STATEMENT BY THE COURT. This is a suit by the Commissioners of Street Improvement District No. 186 against the Commissioners of Street Improvement District No. 157, seeking to have the appellants, the designated Commissioners of Improvement district No. 157, “perpetually restrained from attempting to do any act under color of any pretended office or authority in District No. 157,” and to have the assessment list in District No. 157 “ declared null and…

Humphries, Chancellor; STATEMENT BY THE COURT. This is a suit by the appellants as collateral heirs of 5. Alice Cox against appellee to falsify and set aside certain settlements of the latter as administrator of the estate of S. Alice Cox, deceased.

Elliott, Chancellor; I. This is a clear case of gift. 63 Ark. 100, 44 Pac. 126; 10 La. 85. 2. Appellee had no homestead right. 21 Cyc. 468; 99 Ya. 582. 3. As to who is entitled to a homestead, see 27 Ark. 648; 71 Id. 206; 66 Id. 382; 21 Cyc. 466; 37 So. 734. It extends to grandchildren. Cases supra. 1. The widow was entitled to the homestead. 57 Ark. 242; 71 Id. 594; 43 N. H. 308; 40 Id. 249; 29 Ark. 280; 46 Id. 159; Thompson on Homest. & Ex. § § 73, 77; 94 Ark. 107. 2.

It was error to consolidate the causes. 1 Bish. New Cr. Pr. § 1043 ; 25 Mo. 174; 71 Id. 180. 2. Defendant was entitled to twenty peremptory challenges aside from those allowed John McDonald. Bish. Cr. Pro. vol. 1, § 1042; 5 S. & R. 59. 3. Evidence of threats was clearly admissible. 55 Ark. 598. 4. Evidence of former difficulty was clearly admissible. The presumption of innocence follows throughout the trial. 1. The causes were properly consolidated.

The judgment is void. In unlawful detainer, no question of title, or estate, can be litigated. 9 Pac. 195; 34 Kan. 335; 40 Ark. 193; lb. 38; Kirby’s Dig., § 3698. The court had no jurisdiction to enter the judgment, and hence it is void. 109 U. S. 258; 131 Id. 176; 57 Ala. 628; 99 Mass. 267; 43 Mo. 502; 83 Va. 232; 83 Id. 338; 14 Cal. 479; 14 la. 211. 2.

Stacey Lemoyne was killed by one of appellant’s cars in its yards at Tulsa, Oklahoma, on the 23d day of May, 1910. On the 20th of January, 1911,-Nellie B. Lemoyne, his widow, was granted letters of administration on his estate by the county court of Tulsa County, in the State of Oklahoma, and oii the 1st day of April, 1911, she obtained letters of administration out of the probate court of Pope County, Arkansas, upon the estate of her deceased husband.

The court erred in refusing to transfer to equity. Kirby’s Dig., § 6770;76 Ark. 239; 91 Id. 231; 57 Ark. 367; 109 111. 237; 91 Ark. 231; 43 Id. 111. The statutory proceeding to condemn crossings is established to ascertain (1) the points of crossing, (2) the manner of crossing, and (3) the compensation for crossings, and no provision is made for an issue upon the right to condemn. Cases supra and also 59 Ark. 171; 78 Id. 83. 2.

This suit. is for damages alleged to have been caused appellee by the careless and negligent flooding of its coal mine by appellant. The companies own and operate adjoining coal mines in Johnson County, the Spadra Creek Coal Company’s, mine being north of the Eureka and on a higher level.

The Continental Gin Company sued B. B. Benton in a justice’s court on a negotiable promissory note for the sum of $225, with interest, alleging that it was long past due, that no part of same had been paid, and that it was in the possession of the defendant, having been turned over to him, marked “Paid,” by mistake. No answer was filed, and judgment by default was rendered, from which an appeal was taken to the circuit court.

E. Jeffery, Judge; STATEMENT BY THE COURT. Held: since the old road was not vacated, and rendered judgment “that the order of the county court opening a new road, as described, should be affirmed.

<p>Appeal from Ashley Circuit Court; Henry W. Wells, Judge;</p>

Curl, Chancellor; STATEMENT BY THE COURT. Upon the petition of the officers of the Saline County Bank, praying for the appointment of a receiver of that bank, the chancery court of Saline County, at chambers, on the 2d day of September, 1908, appointed a receiver for the bank in accordance with the prayer of the petition.

Elliott Chancellor; 1. Under the testimony appellant is entitled to a divorce either under the second or third clause of the fifth subdivision of section 2672, Kirby’s Digest; but, under the modern rule, actual personal violence or an apprehension of it is not essential to bring a case within the terms of a statute permitting a divorce for cruelty.

J. Driver, Judge; STATEMENT BY THE COURT. Appellant sued appellee for $375 upon a negotiable promissory note executed by him on April 1, 1909, payable to his order one year after date, with interest, which was indorsed. and on the next day transferred and delivered to appellant for a valuable consideration.

Cowling, Judge; STATEMENT BY THE COURT. On the 8th day of January, 1912, in Howard County, Arkansas, Walter Manasco killed T. D. Patterson by stabbing him with a knife. Patterson was a merchant at Umpire, In addition to his regular store, he had a warehouse a short distance away, but not connected with the store. The appellant, with one Park Hunter, was standing down on the warehouse gallery; Patterson went down there, and asked the boys what they were doing.

Reed, Judge; 1. The first and third instructions given on the part of appellee were erroneous in- that they authorized a recovery if the jury found either that the coupling was made with unnecessary and unusual force or that the appellant failed to give due notice, etc. There is no absolute duty to bring home actual notice, but a duty only to exercise reasonable care to give notice or warning.

The warranty- — -“Have you at any time used alcholics to excess?” Answer, “No” — properly construed, means not a habitual excessive use of intoxicants, as held by the trial • court, but refers to a single excessive use of intoxicants, if shown, as well. Where an insured puts himself within the exception, there can be no recovery. 15 L. R. A. (N. S.) 206; 112 La. 574, 66 L. R. A. 322.

Elliott, Chancellor; 1. This act is a duplicate of the act passed upon in 96 Ark. 410, 415/416. 2. An improvement district is not a municipality, nor a county within the meaning of § 1, art 16. 55 Ark. 148. 3. The Legislature is the sole judge of whether notice of a special act was given or not. 59 Ark. 513, 61 Id. 21. 4. Assessment according to benefits does not violate the constitutional requirements of equality and uniformity. 48 Ark. 370; 96 Id. 410. 1.

E. Jeffery, Judge; 1. Appellants were parties to this proceeding as a matter of right, and had the absolute right of appeal to the circuit court. 85 Ark. 69; 36 Ark. 184; 37 Ark. 374; 40 Ark. 290; 52 Ark. 99; 71 Ark. 84; 85 Ark. 304; 51 Ark. 159; 70 Ark. 175; 91 Ark. 595; 61 Ark. 287; 91 Ark. 79. 2.

Elliott, Chancellor; STATEMENT BY THE COURT. This suit was brought by Carrie and Bennie Vinson, devisees under the will of Howard Beine, against the executor of his estate and all other of his relatives for a construction of the will and a determination of their rights in the estate thereunder.

Cowling, Judge; STATEMENT BY THE COURT. This is an appeal from the judgment of the circuit court of Polk County rendered on the 20th day of April, 1911, setting aside a judgment that had been rendered by that court on November 7, 1908, in favor of the appellant against the appellee in the sum of $50,000.

Shaver, Chancellor; 1. The court erred in sustaining the motion to make complaint more specific. The demurrer should have been overruled. 2. If the doctrine of ultra vires applies, it should be met by evidence. Demurrer is not the remedy. Verbal and mixed contracts have been upheld by this court. 90 Ark. 301; 92 Id. 213; 93 Id. 606; 94 Id. 572; 96 Id. 456; lb. 506. 1.

Guy Fulk, Judge; STATEMENT BY THE COURT. Appellants and appellee entered into the following contract: “This contract, made by and between the National Wagon-stock Company of Little Rock, Arkansas, a corporation, and B. A. Keopple and R. R. McIntosh, copartners, doing business under the firm name and style of Keopple & McIntosh. “Know all men by these presents that the National Wagonstock Company do hereby agree to take and have Keopple & McIntosh, as the sole logging…

Martineau, Chancellor; 1. It is only when a contract is ambiguous or uncertain that parol evidence is admissible to determine what the contract is. 4 Ark. 179; 75 Ark. 55; 86 Ark. 169; 90 Ark. 272; 93 Ark. 1. 2. Where a contract has been reduced to writing and signed by the parties, oral testimony is not admissible to show that they intended to make a different contract. 78 Ark. 574; 80 Ark. 505; 94 Ark. 130. 3.

Evans, Judge, on exchange; 1. The day and night superintendents of appellee having both testified that they had warned decedent of the dangers incident to his employment and instructed him how to avoid them, and having further testified that they warned and instructed their other minor employees, appellant ought to have been permitted, when he offered to do so, to introduce testimony of other minor employees to rebut the same. 48 Ark. 460.

Cowling,- Judge; 1. The act upon which the penalty and attorney’s fee are based is unconstitutional. Seetion 1, Fourteenth Amendment, U. S. Const.; Acts 1907, p. 144; 165 U. S. 169; 97 Ark. 100; 207 U. S. 73, cases cited at p. 77; 61 Pac. 307; 105 Fed. 31; 24 Am. Dec. 511; 47 L. R. A. 343; 49 Ark. 492; 38 S. E. (Ga.) 67; 70 Mich. 382; Id. 433; Id. 620;, 71 Mich. 35; 44 Pac. 149; 41 S. E. 240; 41 S. W. 684; 65 Ala. 193; 60 Miss. 641; 106 Ala. 501; 27 Col. 107. 2.

Evans, Judge; 1. The company is not responsible for the accident. Whayne had authority over the whole gang, and the rods were moved in the customary way. There being different methods to do the service, the company had a right to elect, and it was not negligence to so elect. 57 Ark. 76. No negligence is shown, and the custom was well known to plaintiff. Id. 26-28; 97 Id. 486; 87 Id. 511-513; 89 Id. 50. 2.

Guy Fulk, Judge; STATEMENT BY THE COURT. The appellants petitioned the circuit court for an injunction against the appellee, setting up that the Secretary of State, Earle W. Hodges, is preparing to publish and submit to the voters for adoption or rejection an act to prohibit the manufacture, sale or giving away in the State of Arkansas of any alcohol, or any spirituous, ardent, malt, vinous or fermented liquors, or any compound or preparation thereof, commonly caled tonics,…

H. Evans, Judge; STATEMENT BY THE COURT. On the 22d. day of September, 1908, the chancellor, in vacation, appointed a receiver for the Saline County Bank upon a petition therefor by the officers of the bank.

Wells, Judge; 1. The rule with reference to the skill, diligence and foresight which a railway company must employ to provide for its passéngers a reasonably safe track and equipment and to maintain them in a reasonably safe condition does not go to the length of requiring it to anticipate every possible accident. 52 Ark. 517-524. A carrier of passengers is not an insurer of their safety. 57 Ark. 418, 422. 2.

J. Driver, Judge; 1. The peremptory instruction should have been given, as there was no evidence to support a verdict. Where the verdict is grossly contrary to law, though in accordance with the instructions of the court, and was totally unsupported by any legal evidence, the judgment will be reversed. 28 Ark. 550; 34 Id. 632; 5 Id. 640; 7 Id. 462; 25 Id. 49. 2. Delivery of a contract is absolutely necessary to its validity.

H. Humphreys, Chancellor; STATEMENT BY THE COURT. This suit'is by appellees to charge certain funds in the hands of the receiver of the Bank of Siloam with a trust and to have same applied to the payment of their claims in preference to the claims of general creditors; and from the decree directing it done the receiver appealed. The Bank of Siloam closed its doors August 6, 1910, and a receiver was on that day appointed.

Elliott, Chancellor; 1. This case, in the fact that appellant’s answer was ignored and decree rendered without giving him time to produce his proof, is similar to that of Silver v. Luck, 48 Ark. 268, wherein the court said: No valid judgment could be given against him until the issue raised by the’ answer had been in some way disposed of.” 2. A decree rendered in vacation is not only voidable, but is an absolute nullity. 71 Ark. 226; 75 Ark, 415. 3.

H. Humphreys, Chancellor; STATEMENT BY THE COURT This is an action instituted by Tegarden Brothers to recover a balance of $4,000 alleged to be due for the purchase money of a concentrating plant constructed on certain land in Marion County, and to enforce a mechanics’ lien thereon. No question is raised as to the right to enforce the lien.

Guy Fulk, Judge; It was incumbent on appellees to show in this complaint that they had a legal right to have appellant certify the petitions out to be voted on by the people of the respective counties, and, failing in that, the demurrers should have been sustained, and the complaints dismissed. 1 Ark. 11; Id. 121; 6 Ark. 9; Id. 437; 26 Ark. 482; Id. 100; 27 Ark. 382; 45 Ark. 122; 48 Ark. 80; 87 Ark. 379.

Wood, Chancellor; STATEMENT BY THE COURT. Appellant brought an action of ejectment against appellees in the circuit court for the possession of certain lands in Ashley' County, deraigning title thereto from Peter McQueen through the devisee and her heirs under his will. It also claimed under a commissioner’s deed issued in a suit for the collection of overdue taxes.

E. Jeffery, Judge; STATEMENT BY THE COURT. Appellant, Yol Hamer, was indicted for the crime of rape, alleged to have been committed upon the person of Charlie Holder, a seventeen-year-old girl. She was the half--sister of appellant’s wife, and had been living with them since she was a small girl. His wife was sick and away from home at the time, leaving there appellant, Charlie Holder, and two of the children.

S. Maples, Judge; 1. The court’s ninth instruction on the question of self-defense ignores the principle that one on his own premises may, without retreating, stand his ground, and repel the invasion of one who comes in violent or tumultuous manner, and is not the law. Kirby’s Dig., § 1796. 2.

Shaver, Chancellor; STATEMENT BY THE COURT. The appellee filed suit for confirmation of title to the forty acres of land in controversy. Appellant filed an intervention and response. The petition was then amended by appellee to allege that he was the owner of the land in controversy, and had been for more than seven years; that it was unimproved and uninclosed, and that he had continuously paid the taxes during the seven years under title as deraigned in his petition.

<p>Appeal from Arkansas Chancery Court; John M. Elliott, Chancellor;</p>

Grace, Judge; 1. The court erred in not dismissing the jury on appellant’s motion. 82 Ark. 188. 2. Under the indictment, appellant could not have been legally convicted unless he himself fired the fatal shot.

Evans, Judge; 1. The burden rests upon one who asserts the homestead right to show affirmatively that land was his homestead at the time the lien of the judgment attached. 75Ark. 228; 76 Ark. 575; 53 Ark. 289, 299; 51 Ark. 87. Present residence upon the land, coupled with the present intention to make the land in question his homestead, is essential and necessary to impress the homestead character. 57 Ark. 170; 78 Ark. 479. 2.