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[ "258 Ark. 992", "530 S.W.2d 359" ]

[ { "author_str": "Harris", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Carleton Harris, Chief Justice. This personal injury action arose from an altercation in the polling place at Turrell, Arkansas, at the close of election day. Appellant, the then Sheriff of Crittenden County, injured appellee while the latter was being arrested, and appellee obtained a judgment for $30,000. From the judgment so entered, appellant brings this appeal, arguing only that the amount of the judgment is excessive. Appellee, K. E. Gahr, was an election judge at the Turrell polls in a runoff between appellant and R. L. Simmons on June 11, 1974. Two of appellant’s deputies, R. C. Smithey, and Charles Walker, according to the evidence, were in and about the area all during the day. Following closing of the polls, Mrs. Faye Drake, appellant’s designated poll watcher, stated that the box was being challenged by appellant, and Deputies Smithey and Walker then came in as Mrs. Drake handed the written challenge to poll officials. Smithey and Walker were requested to leave the premises since they did not have poll watcher’s permits. According to witnesses for appellee, Smithey refused to leave, and Alvin Fraley, officer of the day at the polls, and Ricky Stalls, township constable, then placed their hands under Smithey’s arms, lifted him up and carried him out the door.1 Appellee testified that Walker grabbed him and he struck Walker in the mouth.2 After the deputies were removed from the polling place, the doors were locked and the election judges and clerks proceeded with their duty of counting the ballots, but within a short time, the back door was apparently forcibly opened by the sheriff and several deputies who entered the room. It is not clear as to exact subsequent events, other than the fact that Gahr and Stalls were placed under arrest for assaulting the deputies. The sheriff testified that he told Smithey to arrest those who had assaulted him, while all bystanders who were not deputies, stated that the sheriff made the arrests. At any rate, according to appellee, one of the deputies placed handcuffs on his right hand, the sheriff choked him,3 and Deputy Akers hit him in the stomach with a long nightstick. Jerry Ray Akins testified that the sheriff was choking Gahr, and that he (Akins) was telling the sheriff while this was going on that Gahr had had a serious operation, “He was dragging him back towards the door, which he burst in, and he had him bent back over backwards ***;” that the sheriff finally let go of appellee, who then fell to the floor. The witness said that Akers poked Gahr in the stomach with a nightstick. Akins stated that after Gahr “started coming to, Sheriff Browder walked back over to where he was and said, ‘We are going to get you,’ or something you know.” Carl Miller testified that: “A deputy by the name of Butts walked over and caught ahold of Gahr’s arm and twisted it behind him and put the handcuffs on him, and when he done that, the Sheriff put his arm around his neck, choking him, and, of course, he was standing up there and they about choked him unconscious, and then Mr. Akers started to punching him in the stomach with a nightclub out there.” He said that by that time, Gahr was unconscious, and that he told the sheriff, “You done killed him.” The testimony of John B. Cage was in the same vein and he added, “The ladies there were asking him not to do it, said he had had an operation, choking him to death and all of that *** >> Thereafter, Gahr instituted suit against Browder and Akers, obtaining the judgment for $30,000 against the sheriff, and a judgment of $150.00 against Akers. As earlier stated, appellant does not question the substantiality of the evidence to support a judgment, but it is insisted that the verdict was excessive, and appellant’s principal argument is based upon the testimony of Dr. John E. Robinson, Jr., a general surgeon of Memphis. Dr. Robinson had first examined Gahr on November 23, 1973, for evaluation of an intractable duodenal ulcer and associated pancreatic tumors, and Gahr underwent surgery for this condition and his stomach was completely removed. One month after this operation, Gahr developed an intestinal obstruction which was removed in February, 1974. In March, 1974, appellee underwent surgery for a hyper-parathyroid condition. Robinson examined Gahr on the night of the assault, finding tenderness around the incision, but no other external signs of trauma. He did not think that the trauma aggravated any existing condition, although he did feel that Gahr would have had more discomfort from physical abuse received in the abdomen than someone who had never had surgery in that area. The witness mentioned that in September, 1974, Gahr underwent another abdominal operation for continued vomiting of bile, but the doctor said this was a pre-existing condition. However, he added that the vomiting “had been resolved by a change in his diet up until the time of this alleged beating.” Dr. Robinson also said that looking at the emotional aspects of the trauma, an ulcer patient’s condition would be aggravated; “Ulcer patients are very emotional and high strung, as a rule.” Appellant points out that the total medical expense, “some of which may not have been attributable to the injuries he received at Turrell was $337.85.” It is also contended that since the injuries based upon the actions of Deputy Akers were compensated by the jury in the amount of $150.00, the balance of the award was to compensate for the “armlock” or choking action taken by the sheriff. We do not find this contention tenable. Unquestionably, it was the view of the jury that the sheriff had control of Akers and, by a word, could have prevented the assault by the deputy; indeed, the evidence reflects that the sheriff had charge of the entire operation. As to damages suffered by appellee, it is argued that no effort was made to show that any time was lost from work, or that Gahr’s activities had been limited in any way by his injuries and that accordingly, “the sum of $29,662.15 was awarded by this jury for Mr. Gahr’s pain and suffering and nothing more.” We cannot agree with the above statement. It might first be mentioned, however, that Gahr detailed quite a bit of physical suffering himself, complaining of pain in his neck, tenderness around his abdominal scars, abdominal pain, and soreness of his body. Within a week after the assault, according to Gahr, there was a recurrence of frequent vomiting after meals, a condition which had been alleviated prior to the assault, and he testified of pain in his lower neck and jaw. Appellee subsequently underwent an additional operation to cure the recurrent vomiting. Let it be remembered that the evidence also reflected that Gahr had undergone surgery for a thyroid condition less than three months before the assault, the thyroid gland being located at the base of the neck. Of course, had appellee sought punitive damages, the entire amount awarded by the verdict would likely be quickly upheld, for the conduct of the sheriff, under the testimony of the witnesses, cannot be justified in any manner. Browder, a public officer, entrusted by the public to safeguard the rights of its citizens, was six feet tall and weighed two hundred and fifteen pounds,4 and though the sheriff testified that he only used so much force as was necessary in making an arrest, it would not appear a matter of necessity that he choke Gahr, who was five feet five inches tall and weighed one hundred and twenty-five pounds, into unconsciousness. As earlier stated, we cannot agree that the award was made simply on the basis of Gahr’s pain and suffering. The jury was instructed as to mental anguish, and this is an important element of damage, in 6 AM. JUR. 2d Assault and Battery § 183, it is pointed out that the prevailing view is that in an action for an assault and battery, damages for mental suffering may be recovered even though the plaintiff received no physical injury.5 Further: “Mental suffering reasonably certain to be endured in the future may be taken into account in estimating the amount of damages to be awarded. Other elements that may be taken into consideration in determining such damages include the affront to the plaintiff’s personality, and the indignity, disgrace, humiliation, and mortification to which he was subjected by the defendant’s conduct. “In an action for assault or battery, damages for mental suffering are usually allowed as compensatory damages.” This reasoning was followed in the Tennessee case of Garner v. State ex rel. Askins, 137 Tenn. App. 510, 266 S.W. 2d 358 (1953), where the sheriff and his deputy held the victim while a constable beat him with a blackjack in the course of arresting him for reckless driving. There, the trial court granted a remittitur from $4,050 to $750.00, stating that the plaintiff wasn’t hurt, “just his feelings.” The appellate court reversed, restoring the judgment to the full amount originally awarded by the jury and stated: “Plaintiff was entitled to recover compensation for all his injuries - those already suffered and those he is reasonably certain to suffer - including an allowance for his physical pain and mental anguish, for the affront to his personality, the indignity, disgrace, humiliation and mortification to which he was subjected by the conduct of this peace officer. “It is true that there are no set rules for determining the amount of damages which a plaintiff is entitled to recover for the wrongful conduct of an officer in a case like this. There is a wide range of variation in amounts in cases more or less similar, but there are numerous cases more or less similar to this in which there were larger judgments than the amount originally fixed by the jury in this case.” There are no Arkansas cases which deal specifically with the element of mental anguish in an assault and battery case and we thus have no precedent for a guide in the present litigation. As stated by the court in Garner, there are really no set rules for determining the proper amount of damages in a case of this nature, but it is evident from the testimony herein set forth that a jury could find that Gahr suffered not only intense physical pain, but deep mental anguish through worry, humilitation, and mortification occasioned by the attack upon him. Certainly, a jury could have found from the evidence of Dr. Robinson and Gahr that the frequent vomiting by appellee had been resolved prior to the assault; that the additional operation to correct this condition subsequent to the assault, had been occasioned by the sheriff’s attack upon Gahr. Of course, worry over what effect the injuries inflicted could have on his general physical condition, including the possibility of further surgery, could create considerable mental anguish. A jury could find that the embarrassment and humiliation of being choked and beaten in front of one’s friends and acquaintances, as well as being handcuffed like a common felon, by the very nature of these acts, would occasion extreme anguish. How does one measure financial indemnity for this type of damage? What figure properly compensates for such a humiliating and ignominious experience? There can be no set standard. In Turchi v. Shepherd, 230 Ark. 899, 327 S.W. 2d 553 (1959), this court said: “A comparison of awards made in other cases is a most unsatisfactory method of determining a proper award in a particular case, not only because the degree of injury is rarely the same, but also because the dollar no longer has its prior value. Even as far back as 1928, in the case of Missouri-Pacific Railroad Company v. Elvins, 176 Ark. 737, 4 S.W. 2d 528, this Court said: ‘In this connection it may be also, stated that the jury may consider to some extent that money today has much less purchasing power than it had twenty or even fifteen years ago. This is a matter of common knowledge to all, of which courts and juries may take judicial notice. ’ “Certainly, it is a matter of common knowledge that today’s dollar has greatly diminished in value during the past several years.” If, in 1959, it was a matter of common knowledge that the dollar had greatly diminished in value during the “last several years,” then it is certainly common knowledge that that statement is undoubtedly even more true today. We have concluded that the award, considering all of the elements mentioned, pain and suffering, anxiety over possible physical complications that might arise, embarrassment, humiliation, etc., support a generous award — but punitive damages not being involved — not so generous as awarded by the jury. Accordingly, the judgment is reduced to the sum of $20,-000. If, therefore, within seventeen calendar days, the appellee will enter remittitur for damages in excess of $20,000 the judgment will be affirmed. Otherwise, the judgment will be reversed and the cause remanded. Fogleman, J., not participating. Smithey testified that he was not asked to leave; that somebody simply said, “Throw them out.” He said when he was taken to the outside that one, “Stomped me and kicked me.” He said he was injured, though persons standing outside said that he was not attacked. Walker said that Stalls hit him in the mouth. The sheriff stated that Gahr took a “swing” at Deputy Butts, “started swinging with his right hand and kicking***.” He said when this happened, “I got him with an armlock and held him until Butts got the cuffs on him.” Deputy Akers was five feet eleven inches tall and weighed two hundred forty pounds. See Enein v. Milligan, 188 Ark. 658, 67 S.W. 2d 592, where we held that when the tort is intentional, damages for mental anguish are recoverable without physical harm. ", "ocr": true, "opinion_id": 7819879 } ]

[ "261 Ark. 406", "549 S.W.2d 278" ]

[ { "author_str": "Harris", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Carleton Harris, Chief Justice. Appellee, Orley Woodard, a policeman of the City of Piggott from February 4, 1969, until May 27, 1976, upon retirement, claimed pay for holidays during his service on the force (Ark. Stats. Ann. 19-1713) and also claimed the maximum accumulation of “sick leave,” a total of 60 days’ pay at the rate in effect during his service on the force (Ark. Stats. Ann. 19-1720 [Í975 Supp.]). The circuit court found the plaintiff entitled to accumulated sick leave and entitled to pay for 68 holidays, totaling $2,-772.74. The judgment has been stayed pending appeal. For reversal, appellant first contends that there has been an illegal appropriation of city funds by the Legislature. A heterogeneous mixture concerning defects in the Legislative Act and other alleged reasons for reversal are mentioned under point two. The first point relates to an assertion that the acts in question are violative of Article 5, § 29 of the Arkansas Constitution. That provision provides: “No money shall be drawn from the treasury except in pursuance of specific appropriation made by law, the purpose of which shall be distinctly stated in the bill, and the maximum amount which may be drawn shall be specified in dollars and cents; and no appropriations shall be for a longer period than two years.” This provision is not pertinent. The language “No money shall be drawn from the treasury” has reference to the state treasury and does not refer to money held elsewhere. See Gipson v. Ingram, 215 Ark. 812, 223 S.W. 2d 595. Nor do we find merit in the arguments under point two. This' case was tried entirely on a stipulation which only included three paragraphs, first, the dates of Woodard’s employment as previously set out in this opinion, second, the amount of accumulated unpaid sick leave time, also previously mentioned, and third, the number of holidays during each pay rate, including the period of time for which each rate was applicable. The city contends that it has never adopted an ordinance providing for special pay and it asserts that such an ordinance is mandatory before Woodard can be paid. We do not agree. If this were the case, a city could vitiate a legislative act through inaction. In Mackey v. McDonald, 255 Ark. 978, 504 S.W. 2d 726, and cases cited therein, we pointed out that whenever an obligation is legally imposed upon a county by legislative enactment within the power of the General Assembly, it must be paid without regard to the existence or exhaustion of a specific appropriation so long as the county general fund is not exhausted. While that case involved the obligation of counties, the same logic holds true as to the obligation of cities. In 56 Am. Jur. 2d Municipal Corporations § 132, it is stated that the state may provide a metropolitan police system for municipalities and compel them to pay the expenses thereof, even though the municipality acts under a home-rule charter, such charter being subservient to the general laws. As has been pointed out so many times that no citation of authority is necessary, municipalities only have such authority as is given by the General Assembly. The act in question is a general law and Article 12, § 4 of the Arkansas Constitution prohibits a municipal corporation from passing any law contrary to the general laws of the state. To say that a city could nullify a general act by simply refusing to pass an ordinance or make an appropriation would, in actual effect, be the same as passing a law contrary to such statute. It is argued that the legislation is unconstitutional in light of Article 2, § 18 of the Arkansas Constitution which provides: “The General Assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens.” It is asserted that the Legislature has singled out certain type employees for special privileges, such privileges not being afforded to all employees of the city. This is not the test. In 16A C.J.S. Constitutional Law § 505, the subject is discussed as follows: “State and municipal legislation is subject to the constitutional requirement that no state shall deny the equal protection of the laws to any person within its jurisdiction; and it is valid as complying with, or invalid as violating, this requirement accordingly as it does or does not, within the sphere of its operation, affect and treat alike, with equality and uniformity, and without arbitrary or unreasonable distinction or discrimination, all persons similarly situated. Legislation which meets this test satisfactorily is not invalid because it is not all-embracing but instead is limited, for example, * * * as to persons, subjects, objects to which the legislation is to be applied, or evils or abuses to be remedied or corrected. Equal protection is not achieved through indiscriminate imposition of inequalities, but discrimination alone, irrespective of its basis or effect, is not the test of denial of equal protection of the laws by a statute. A discrimination which is merely technical and in no sense substantial or unjust does not render a statute void. Also, the constitutional requirement does not prevent a state or municipality from adjusting its legislation to differences in situations and making a discrimination or distinction in its legislation in respect of things that are different, provided the discrimination or distinction has a reasonable foundation or rational basis and is not palpably, purely, and entirely arbitrary in the legislative sense, that is, outside of the wide discretion which the legislative body may exercise. The courts will not lightly assume legislative arbitrariness, nor will they draw the dividing line between rational and arbitrary legislation with a view of remote possibilities, but instead they will refuse to set aside a statutory discrimination as a denial of equal protection of the laws if any state of facts reasonably may be conceived to justify it.” Our own cases are fully in accord. In Thompson v. Continental Southern Lines, Inc., et al, 222 Ark. 108, 257 S.W. 2d 375, this court held that when classification of subjects is made by legislation, such classification must rest on some substantial difference between classes created and others to which it does not apply, but where the statute or ordinance appears to be founded upon a reasonable basis and operates uniformly upon a class to which it applies, it cannot be said to be arbitrary. See also the early case of Willis, et al v. City of Fort Smith, et al, 121 Ark. 606, 182 S.W. 275. In the first place, the legislative act (Act 133 of 1955) granting the additional pay for holidays applies to all policemen and Act 393 of 1969 provides that “All firefighters and police officers employed in cities of the first and second class shall accumulate sick leave,” etc.1 So it is at once apparent that there is no discrimination as between the members of the class — all city policemen are included. It must be remembered that because of the nature of their duties, policemen are required to work on holidays, or, at least are subject to call, for the public cannot be left without police protection. This situation is vastly different from that of a secretary or a clerk, other office help, or sanitation workers, as there could but rarely be occasion for the services of these personnel on a holiday. Sick leave is controlled by Act 393 of 1969 (Ark. Stats. Ann. 19-1720) which provides for unused accumulated sick leave for policemen and firemen. The act points out that existing provisions for sick leave are not uniform, and are entirely inadequate. We think, under our decisions, these classifications are entirely reasonable, and appellant’s argument is found to be without merit. Appellant calls attention specifically to Article 12, § 4 of the Constitution of the State of Arkansas, as amended by Amendment 10 to the Constitution and says: “Realizing, of course, that cities only have such powers as may be given by the General Assembly, either express or implied, Article 12, Section 4 of the Constitution of the State of Arkansas specifically limits the Appellant herein from levying a tax or more than 5 mills and, also, specifically prohibits the Appellant from paying or issuing any type certificate of indebtedness in excess of the revenues from all sources for the current fiscal year. At the time of the trial of this case there was no way of knowing whether or not payment of this judgment would, by making such payment, put the Appellant in the position of exceeding its revenues from all sources for the current fiscal year.” There is absolutely nothing in the record to denote whether the allowance of appellee’s claim would necessarily cause the revenues of appellant for any year or years to be exceeded. We have said: “The burden of showing that payment of an obligation would constitute a violation of this amendment is upon the party making that assertion if a question of facf is involved.” Deason v. City of Rogers, 247 Ark. 1061, 449 S.W. 2d 410. In the same case, this court commented: “There is no way that this court or the circuit court could possibly ascertain, on the record, what the revenues or expenditures of the city amounted to in the year or years involved, what disposition may have been made of any surplus in any such year, or what other claims against any surplus might be outstanding.” Whether the statutes (19-1713 and 19-1720) are constitutional and thus valid, and we so find,2 is entirely a separate question from whether revenues are available to pay the judgment. Of course, such judgment cannot be paid if violative of Amendment 10, and though there is much law on the subject, that matter is not presently before us. Affirmed. A similar right to holiday pay was given to firemen in Act 132 ofl955 as amended by Act 264 of 1957. The Deason case also involved the question of the holiday pay for policemen, but the constitutionality of the statute was not attacked. ", "ocr": true, "opinion_id": 7820155 } ]

[ "265 Ark. 378", "578 S.W.2d 237" ]

[ { "author_str": "Hickman", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Darrell Hickman, Justice. Kenny J. Halfacre and Walter Andrew Duty were jointly tried, at their request, on charges of aggravated robbery. They were found guilty. Halfacre was sentenced to 15 years in the penitentiary; Duty was sentenced to 12 years. On appeal from the judgment of the Hempstead County Circuit Court they allege three errors: A .22 caliber pistol and $262.00 in currency were improperly admitted because a proper chain of custody was not established; the information was defectively drawn omitting critical language; and, the trial court erred in denying the appellants a post-trial evidentiary hearing on allegations of ineffective assistance of counsel. We find no merit to any allegation of error regarding the trial. However, there is merit to the appellants’ contention regarding the post-trial hearing. The facts are uncomplicated. James Green, the owner of Green’s Grocery and Service Station in Fulton, Arkansas, testified that two white males, driving a yellow Datsun 280Z, robbed him at about 4:00 p.m. on the 27th of January, 1978. He said they took all the bills and quarters in the cash register. He estimated the cash taken to be about $300.00. He immediately called the state police telling them that he had been robbed by two white males driving a yellow Datsun 280Z. He indicated they were headed toward the town of Saratoga. The police put out a radio alert to all local law enforcement officials and several police cars converged on the area. A sheriff’s vehicle, driving toward Saratoga, passed a yellow Datsum 280Z occupied by two white males going in the opposite direction. The officers in the sheriff’s vehicle made an immediate turn and gave chase. The Datsun left the highway and was stopped shortly thereafter by the sheriff’s vehicle in a churchyard. A state police vehicle arrived on the scene at about the same time. The suspects and their vehicle were searched. The officers found a blue-steel .22 caliber pistol and one officer took about $200.00 in currency from one of the appellants and another officer took about $62.00 in currency from the other appellant. The gun and the money were later turned over to the sheriff. The gun and the currency, after being identified by the sheriff during the trial, were admitted into evidence. He said he gave receipts to the officers for the items. The currency consisted of the following denomination of bills: fifty-two $1.00 bills, five $20.00 bills, seven $10.00 bills and eight $5.00 bills. Green, in his testimony, identified the appellants as the robbers and said that the gun used in the robbery appeared to be a blue-steel .22 caliber pistol. The appellants stated that it was error to admit the gun and currency because there was no proper chain of custody. However, their argument is actually that the gun was not shown to have been used in the robbery nor was the money shown to have come from Green’s Grocery. Green had testified that he was robbed at gunpoint and described the gun as a blue-steel .22 caliber pistol. Such a pistol was taken from the appellants ’ vehicle and introduced into evidence. In a similar case, it was shown that a gun similar to one used in the commission of a crime was properly admitted as relevant evidence. U.S. v. Cunningham, 423 F. 2d 1269 (4th Cir. 1970). In another situation, where a chrome-plated handgun was admitted into evidence, it was held that it was improper when prosecution witnesses testified that such a gun was not used in the robbery. Walker v. U.S., 490 F. 2d 683 (8th Cir. 1974). It, therefore, becomes a question of similarity and relevance. The handgun described by Green was similar to that taken from the appellants ’ vehicle; it was seized immediately after a report of the alleged robbery. The gun was properly admitted as evidence. We find that the admissibility of the currency was also proper for the same reasons. Green said that they took all the bills from his cash register. He immediately reported the robbery to the police. Vehicles converged on the appellants within fifteen to twenty minutes after the report was received and they were found to have in their possession $260.00 or $262.00 in bills of various denominations. There was testimony that over a “handful of quarters” were found in the vehicle the next day during a more thorough search of the vehicle. The quarters were located between the two seats in a console. The immediate report of the robbery, the definitive description of the suspects as being two white males driving a yellow Datsun 280Z and the arrest shortly thereafter, lend weight to the admissibility of the currency. In a similar situation we found that such currency was admissible as relevant. Logan v. State, 264 Ark. 920, 576 S.W. 2d 203 (1979). The information charged that the appellants “. . . on the 27th day of January, 1978, in Hempstead County, Arkansas, did willfully, unlawfully and feloniously and with physical force rob Green’s Grocery of an undetermined amount of cash, . . . . ” The Arkansas Statutes define aggravated robbery as follows: (1) A person commits aggravated robbery if he commits robbery as defined in section 2103 and he: (a) is armed with a deadly weapon, or represents by word or conduct that he is so armed; or (b) inflicts or attempts to inflict death or serious physical injury upon another person. Ark. Stat. Ann. § 41-2102 (Repl. 1977). The appellants argue that they could not be convicted of aggravated robbery because there was no allegation that either of the appellants were armed with a deadly weapon, represented by word or conduct that they were so armed, inflicted or attempted to inflict death or serious injury upon another person. We do not consider this argument on appeal because there was no objection before or during the trial as to the defective information. Ferguson v. State, 257 Ark. 1036, 521 S.W. 2d 546 (1975). We do not review errors raised for the first time on appeal. Haynie v. State, 257 Ark. 542, 518 S.W. 2d 492 (1975). After the appellants were convicted and sentenced, they wrote directly to the trial judge asking for a hearing on the question of effectiveness of their court-appointed counsel. On the motion of the State that the petition did not allege grounds for a new trial, the court found the petition to be actually in the form of a petition for Rule 37 relief and dismissed it without a hearing. We feel the petition did allege sufficient grounds for a hearing. Ark. Stat. Ann. § 43-2203 (Repl. 1977) sets forth reasons for which a new trial may be granted. The last reason reads: Where, from the misconduct of the jury, or any other cause, the court is of the opinion that the defendant has not received a fair and impartial trial. The petition, filed a few days after judgment, was not couched in conclusory language but specifically recited instances which could be considered as a basis for finding that their constitutional right to effective assistance of counsel had been denied. Deason v. State, 263 Ark. 56, 562 S.W. 2d 79 (1978). While such a matter can be raised by way of a petition for relief under Rules of Crim. Proc., Rule 37, a trial court is not precluded from hearing evidence on such a motion as grounds for a new trial. We suggested such a procedure in Hilliard v. State, 259 Ark. 81, 531 S.W. 2d 463 (1976). The trial court, having just finished the trial and observing the conduct of counsel, was in a unique position to hear and determine the matter; such a hearing enables us to review the matter on appeal. Therefore, we remand the matter for the court to conduct such a hearing and make findings and enter an appropriate order. Subject to the outcome of the hearing, we find no error in the record. Affirmed in part and remanded. We agree. Harris, C.J., and Fogleman and Holt, JJ. ", "ocr": true, "opinion_id": 7820636 } ]

[ "265 Ark. 860", "581 S.W.2d 345" ]

[ { "author_str": "Hamilton", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Herman L. Hamilton, Jr., Special Justice. Appellants, Arkadelphia Federal Savings & Loan Association and Arkansas Savings & Loan Association Board, appeal from the Clark Circuit Court order directing issuance of a charter to Mid-South Savings & Loan Association for a new savings and loan in Arkadelphia, Arkansas. The Circuit Court reversed the Arkansas Savings & Loan Association Board decision denying the application, in its decision the Board stated: “There is not a public need for the proposed association and the volume of business in the area in which the proposed association would conduct its business is not such as to indicate a successful operation.” The Board also stated in its decision 45 underlying findings of fact as it viewed the record, and which it found to support denial of the application. Appellee, Mid-South Savings & Loan Association, had applied for a charter to establish a state savings and loan association in Arkadelphia. Appellant, Arkadelphia Federal had opposed the charter. The voluminous record of proceedings included economic reports, population growth charts, depositions of numerous witnesses for the applicant and for Arkadelphia Federal and proof presented at the Board hearing. Testimony was also presented at the Board hearing by a number of witnesses. In reviewing an application for charter as in this case, the Arkansas Savings & Loan Association Board is required by Ark. Stat. Ann. § 67-1824 (Supp. 1977) to make certain enumerated findings before approving the application. Among those required findings are, “There is a public need for the proposed association and the volume of business in the area in which the proposed association will conduct its business is such as to indicate a successful operation”. Ark. Stat. Ann. § 67-1824 (3), supra. Additional affirmative findings are required, and the statute provides “The Board shall not approve any charter unless the incorporators establish and the board shall have affirmatively found . ...” all those elements to exist. Thus, the Board’s failure to make any of the required affirmative findings prohibits its approval of a charter. The Board expressly found that there was not a public need in the proposed service area and denied the charter as required by Ark. Stat. Ann. § 67-1824 (3), supra. Having found against the existence of one of the required elements of the statute, the charter could not be granted. In reviewing the actions of the Board, in approving or denying a charter, we adopted the “substantial evidence rule”, reviewing the record as a whole, as set forth in Universal Camera Corp. v. National L.R. Bd., 340 U.S. 474, 71 S. Ct. 456 (1950). See Ark. Savings & Loan Board et al v. Central Arkansas Savings & Loan Assn., 260 Ark. 58, 538 S.W. 2d 505 (1976); While County Guaranty Savings & Loan Assn. et al v. Farmers & Merchants Bank of Des Arc, 262 Ark. 894, 562 S.W. 2d 582 (1978). In reviewing this record, the Circuit Court correctly stated the rule that the reviewing Court cannot substitute its judgment for that of the Board and must affirm the Board unless it finds no substantial evidence to support the Board. See Ark. Savings & Loan Board v. Sutherland, 256 Ark. 445, 508 S.W. 2d 326 (1974); Northwest Savings and Loan Assn. et al v. Fayetteville Savings & Loan Assn. et al, 262 Ark. 840, 562 S.W. 2d 49 (1978). We recently applied the substantial evidence rule in reviewing Board action relating to an application for a branch office for an existing savings institution. Independence Savings & Loan Assn. v. Citizens Federal Savings & Loan Assn. et al, 265 Ark. 203, 577 S.W. 2d 390 (1979). A review of the record in this case indicates that there was substantial evidence to support the decision of the Board, though we might have reached a different result. It would serve no useful purpose to review all of the evidence in this record, however, some of the factors which the Board could have considered as substantial evidence against granting this charter, reflected in the record, were as follows: (a) That Mid-South was not representative of the black community, having no black officers or directors and a minimum of black depositors and deposits pledged; (b) That Arkadelphia Federal was operating for a number of years on a slim profit margin and that its profit picture on that margin only resulted from the substantial size of its overall operations; (c) That evidence of substandard housing in the proposed service area was not proof of Arkadelphia Federal’s failure to meet the public need; (d) That interest rates paid by Arkadelphia Federal to depositors and interest rates charged by Arkadelphia Federal to borrowers did not materially differ from other institutions of comparable size; (e) That the population growth in Clark County and the proposed service area was not up to the State average and did not indicate substantial future growth; (f) That banking and savings institutions in the proposed service area had a surplus of savings deposits over the long term real estate loan requirements. We also note that the credibility and weight to be accorded to the witnesses is also the prerogative of the Board and not that of the reviewing Court. We are, therefore, unable to hold that the Board’s decision was not supported by substantial evidence in the record. The question of whether the Board’s action was arbitrary and capricious is a narrow one, more restrictive than the “substantial evidence” test, and is only applicable where the Board decision is not supported on any rational basis. To set aside a Board decision on that basis, it must be wilful and unreasoning and in disregard of the facts and circumstances of the case. White County Guaranty Savings & Loan Assn. et al v. Farmers & Merchants Bank of Des Arc, supra; Independence Savings & Loan Assn. v. Citizens Federal Savings & Loan Assn., supra. In view of the fact that the Board decision in this instance was supported by substantial evidence, we need not address that issue further. The Circuit Court judgment is therefore REVERSED. Hickman, J., not participating. ", "ocr": true, "opinion_id": 7820688 } ]

[ "267 Ark. 628", "593 S.W.2d 27" ]

[ { "author_str": "Purtle", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " John I. Purtle, Justice. The trial court denied appellant’s petition for relief pursuant to Rule 37. Petitioner had alleged ineffective assistance of counsel and failure to knowingly, voluntarily, and intelligently enter a guilty plea. For his appeal from the adverse ruling on his petition the appellant urges the court erred in finding he knowingly, voluntarily, and intelligently entered a guilty plea and that the trial court failed to make statutorily required written findings of act and conclusions of law. We disagree with appellant on both arguments. Appellant had entered a guilty plea and charges of theft of property and aggravated robbery. He was sentenced to 35 years on the robbery charge and 15 years on theft. The sentences were, to be served concurrently. About two months after sentencing appellant filed his Rule 37 petition. The trial court conducted a hearing on the Rule 37 petition on October 3,1978, and overruled the petition in an order dated October 12, 1978. The appellant was represented by the public defender at the Rule 37 hearing. At the request of the court, the order, including the findings of fact and conclusions of law, was prepared by the prosecuting attorney. Appellant was granted a belated appeal from this ruling on June 18, 1979. Appellant and an accomplice were accused of using threats of physical force while taking property, having a value in excess of $100, from Thomas and Katherine Ladd on September 19, 1977. The accomplice pleaded guilty and was prepared to testify on behalf of the state at the appellant’s trial which was set for April 25, 1978. Appellant’s employed attorney, James Massie, was present and announced ready for trial on the date scheduled. Massie had worked out a plea bargain with the prosecutor and told appellant he did not feel they could beat the charges. Appellant was also charged as a habitual offender because he had at least three prior felony convictions. The retained counsel explained the minimum and maximum sentence the appellant. could receive. He also explained the charges and the possibility of conviction but left the decision to appellant as to whether he wanted to plead or go to the jury. After a conversation with his girlfriend, or wife, the appellant informed his attorney he desired to plead guilty. His attorney informed him that the prosecution had found fingerprints at the scene which indicated the appellant was there. The court asked the appellant if he wanted to plead guilty or have a jury trial. Appellant informed the court he wanted to plead guilty. Before accepting the plea, the court explained the penalty on the aggravated robbery was 50 years to life and the penalty on theft of property was 10 to 20 years. The following questions and answers are set out verbatim: The Court: Is anybody forcing you to do this? Defendant Scott: No, sir. The Court: You’re doing it of your own free will? Defendant Scott: Yes, sir. * * * The Court: “. . . may be sentenced to an extended term of imprisonment, as follows: Not less than 50 nor more than life.” So, apparently, it makes the minimum 50. The court then examined the habitual offender act and explained it carried a penalty of 10 to 50 years or life. The court again inquired of the defendant if he wanted to plead guilty, and he replied, “Yes, sir.” The court then stated: “You’re sure you want to do that? If you want to back out and have a jury trial, I have a jury in there ready to try you.” The defendant then stated he did not actually commit the robbery. Thereupon the court admonished the appellant not to plead guilty if he were not guilty. Then for at least the third time appellant stated he wanted to enter a guilty plea. The court proceeded to sentence him to 35 years on aggravated robbery and 15 years on theft with the sentences to run concurrently. After the Rule 37 hearing the court instructed the prosecuting attorney to draw up the order denying the petition. Appellant alleges this is in violation of Rule 37.3 (c) which requires the court to make written findings of fact and conclusions of law. The evidence clearly shows the appellant knowingly, intelligently, and voluntarily entered a plea of guilty. The record of the Rule 37 hearing clearly reveals appellant stated at least three separate times that he wanted to enter a guilty plea. He admits the court and his attorney advised him of the possible penalty. Further, he knew his fingerprints were found at the scene and that the accomplice would testify against him. In view of this record and the evidence, it appears his attorney advised him well. We stated in Byler v. State, 257 Ark. 15, 513 S.W. 2d 801 (1974), that a trial court must determine whether a guilty plea was intelligently and voluntarily made and that a silent record would not satisfy such requirement. That is still the law and we reaffirm it now. Although we were dealing with what was then called Rule 1, we have the same criteria for the present Rule 37. The record is not silent here; it is replete with testimony clearly showing the appellant was informed of the possible penalty, the right to a jury trial, and the probable evidence against him. At least three times he repeated his desire to plead guilty. We think the court met the requirements of Boykin v. Alabama, 395 U.S. 238 (1969), as well as requirements of Rule 24 and our prior decisions. The second point argued by appellant is the court failed to make written findings of fact and conclusions of law because the prosecuting attorney drafted the order at the request of the court. This is such a common practice it gives us no concern whatever. When the court approved and signed the instrument he adopted it as his own. It makes no difference who drafted the order so long as the court approved it. We hold this was in compliance with requirements of the law. Affirmed. Mays, J., not participating. ", "ocr": true, "opinion_id": 7820886 } ]

[ "267 Ark. 874", "596 S.W.2d 1" ]

[ { "author_str": "Hays", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " M. Steele Hays, Judge. This is a Workers’ Compensation case. The single issue presented is: whether a minor child of a deceased worker, whose death is the result of a work related injury, is entitled to the maximum compensation rate under the Worker's’ Compensation Act as a matter of law, or entitled only to the extent to which the minor child is actually dependent upon the deceased parent. The facts are not in dispute: James H. Moppin and Jo Ellen married in 1967 and had one child, Brad Moppin, aged six years. In February of 1976 they were divorced and child support of $108 per month was ordered in the decree. In July of 1976, James Moppin was killed, and a claim for benefits under the Workers’ Compensation Act was filed by Jo Ellen Moppin on behalf of Brad Moppin. The contention of claimant was that Brad Moppin was entitled to the maximum benefits ($77 per week) as a matter of law. Respondent contends that claimant was entitled to no more than $108 per month on behalf of her minor son, that being the amount of child support decreed in the Moppin divorce case. In the hearing below, claimant elected to stand on the contention of entitlement to the maximum benefits as a matter of law and offered no proof of dependency of the minor child. Respondent called Mrs. Moppin to the stand, and some information regarding her social security benefits, employment history, health, wage levels and earnings was provided. Mrs. Moppin testified that Mr. Moppin had, at different times, provided clothes, gifts, and some food and baby sitting in addition to the child support, and that he had given her money, paid medical expenses and had provided a horse to Brad and paid the expenses. By stipulation her 1975 & 1976 federal income tax returns were added to the record. Relying on the opinion of the Workers’ Compensation Commission in the case of Cole v. Roach Manufacturing Company, W.C.C. No. C607399, filed on September 18, 1978, the Administrative Law Judge held that as a matter of law the dependent minor was entitled to the maximum benefits under the Act. The Full Commission affirmed in an opinion filed on June 28,1979, and although it refrained from couching the award of maximum benefits “as a matter of law” that conclusion is inescapable for the reason that it affirmed the decision of Administrative Law Judge “in its entirety.” Respondent appeals to this court, alleging that the Commission erred in deciding that a minor child is dependent upon a deceased parent as a matter of law and not subject to the partial dependency provisions of the Workers’ Compensation Act. The dependency provision of the Act appears in Ark. Stat. Ann. § 81-1315. Prior to the adoption of Act 1227, Extended Session of 1976, the benefits were payable to persons “wholly dependent” upon the deceased employee. The statute reads as follows with the 1976 changes appearing in capital letters: (c) [Beneficiaries — Amounts.] Subject to the limitations as set out in Section 10 [§ 81-1310] of this Act, compensation for the death of an employer shall be paid to those persons who were wholly AND ACTUALLY dependent upon him in the following percentage of the average weekly wage of the employee, and in the following order of preference: First. The widow if there is no child, thirty-five per cent (35%), and such compensation shall be paid until her death or remarriage. PROVIDED, HOWEVER, THE WIDOW SHALL ESTABLISH, IN FACT, SOME DEPENDENCY UPON THE DECEASED EMPLOYEE BEFORE SHE WILL BE ENTITLED TO BENEFITS AS PROVIDED HEREIN. To the widower if there is no child, thirty-five per cent (35%), and such compensation shall be paid during the continuance of his incapacity or until remarriage. PROVIDED, HOWEVER, THE WIDOWER SHALL ESTABLISH, IN FACT, SOME DEPENDENCY UPON THE DECEASED EMPLOYEE BEFORE HE WILL BE ENTITLED TO BENEFITS AS PROVIDED HEREIN. Second. To the widow or widower if there is a child, the compensation payable under the First above, and fifteen per cent (15%) on account of each child. Third. To one child, if there is no widow or widower, fifty per cent (50%). If more than one child and there is no widow or widower, fifteen per cent (15%) for each child, and in addition thereto, thirty-five per cent (35%) to the children as a class, to be divided equally among them. Appellee relies largely on two decisions dealing with the cited section of the Act: Holland Construction Company v. Sullivan, 220 Ark. 895 (1952) and Chicago Mill and Lumber Company v. Smith, 228 Ark. 876 (1958). These decisions support the point the appellee asks us to uphold. In Holland a claim for benefits was brought on behalf of a minor son of a deceased father, whose death occurred after the minor son had been legally adopted by other parents. The deceased worker had been contributing nothing whatever to the minor. The Commission held that the minor was not entitled to any compensation based on a finding of fact that actual dependency did not exist at the time of death and concluded as a matter of law legal dependency did not exist at the time of death. The Circuit Court reversed the Commission as to the question of dependency as a matter of law, leaving undisturbed the finding of fact regarding actual dependency. The circuit court’s award of compensation was affirmed by the Arkansas Supreme Court and, thus, compensation was allowed a minor child adopted by other persons, not actually dependent upon the decedent. It seems inescapable that had the partial dependency section been applied to this factual situation the result would have been a determination of entitlement as a matter of law, but with the result that nothing was actually due under the language of the partial dependency provision. In Chicago Mill and Lumber Company v. Smith, supra, a somewhat similar result was reached in that the decedent was contributing nothing to his widow, minor step child, minor natural child (by a previous marriage) and minor illegitimate child. Compensation was awarded to the three children by the Commission but not to the widow on the theory that she was not actually dependent. The Circuit Court affirmed. The employer appealed the allowance to the children, and the widow cross-appealed the denial of benefits to her. The Arkansas Supreme Court held that the widow as well as the children were entitled to compensation and affirmed as to the children and reversed as to the widow, saying: It would be possible to construe this provision of the Act [81-1315(c)] as depriving a widow or child of any compensation when, as here, the husband and father was completely void of any sense of his family obligation. But it is a rule that remedial legislation shall be liberally construed. We believe the legislature used the term “wholly dependent” in the sense of applying to those ordinarily recognized in law as dependents, and this would certainly include wife and children. Hence, in the Chicago Mill case, as in the Holland case, minor children who were neither wholly nor actually dependent upon a deceased parent were held entitled to compensation, and clearly the benefits to which they were found to be entitled could not have come under the partial dependency provision, for the reasons stated. This leads us to a consideration of the case of Roach Manufacturing Company v. Cole, 265 Ark. 607 (1979), on which the appellant must find footing for the position that the partial dependency provision applies. We agree with appellant that under the language employed in the Roach case [and, for that matter, in a number of decisions by way of dictum prior to Roach: Kelley v. Southern Pulpwood Company, 239 Ark. 1074 (1965); Sherwin-Williams Company v. Yeager, 219 Ark. 20 (1951); Smith v. Farm Service Cooperative, 244 Ark. 119 (1968)], dependency is a question of fact rather than of law. Nor is it simply a matter of semantics, for appellant argues that the issue is one of fact, and it follows that the partial dependency provision of the Act, supra, applies. If there is support for this argument, it must be found in the Roach decision, for, as we have stated, the rule prior to Roach was clearly contrary to what appellant argues. (See: Holland, supra and Chicago Mills, supra.) But the issue can not be resolved that simply, for the reason that Roach does not provide the answer. In Roach, while the court clearly states the issue of dependency to be one offact, the holding of the case itself affirms the Commission’s award of maximum benefit to a dependent minor who was receiving nothing from the deceased parent — it did so on a finding that there was substantial evidence to support the Commission’s award of maximum benefits to the minor child, who was found to be “wholly and actually” dependent upon the decedent. Thus, in the case before us, a much stronger argument for “actual dependency” exists, inasmuch as the decedént was contributing at least $108 per month under the decree of divorce plus whatever value might be placed upon the additional contributions he was making. Appellant’s argument has the force of logic, as it would seem the reasoning in Roach leaves it irrefutable that the partial dependency provision must apply whenever a dependent is not totally supported by the deceased parent. But to reach this result would mean doing two things: (1) giving greater effect to the Roach decision than it gave its own result, and (2) concluding that the legislature, by adding the words “and actually,” intended to alter the interpretation of § 81-1315 (c) as to minor dependents, that has prevailed since the inception of the Act, and thereby make a distinction between minor dependents residing with their parents as opposed to those who were not. This would read into the wording of Act 1227 an intent to place minor dependents not residing with the decedent under partial dependency provision. If that were the case, a very drastic change would come about, at least potentially, because the modest amount now provided under § 81-1315 (c), would be lessened substantially. The case before us provides the illustration: under § 81-1315 (c), Brad Moppin, would receive $77 per week, but under the partial dependency section, he would receive (we can only estimate as there are no findings in the record) something approximating one fourth of that amount. The impact of this result on dependent children of deceased workers who are either divorced or merely separated at time of death is such that we are not willing for that end to come about simply by taking what might be said to be the logical followrthrough of the Roach decision, particularly where we think that such a result is clearly not supported by either the legislative intent behind Act 1227 or consistent with the result as reached in the Roach decision. We think it is entirely conceivable that in certain instances a minor child, whether residing with the parent or elsewhere, may have independent resources and therefore capable of being non-dependent upon a deceased parent for purposes of Workers’ Compensation benefits, and it follows, therefore, that we may depart from the dependency as a matter of law standard and award compensation where the expectation and the need are real or “actual’ ’. It is said to be the “great weight of authority” that dependency is a question offact as opposed to a question of law. Wilson v. Hill, 71 A. 2d 425 (Del. 1950); Koepel v. E. I. Du Pont de Nemours and Company, 183 A. 516. It is clear that the court in Roach interpreted the language of Act 1227 as reflecting an intent by the legislature to require evidence of actual dependency by both a widow and a minor child, citing Williams v. Edmondson, 257 Ark. 837 (1975). But the court also made an important distinction as between the two (where neither was receiving any actual support) and that distinction is that a minor child continues to have an expectancy of future support which the court found lacking as respects the widow. The eiid resultis this: in Roach, a minor child who was receiving no actual support at the time of injury was awarded maximum benefits under § 81-1315 (c) bécause of her expectancy of future support; in the light of that interpretation we are unwilling to say that a minor actually dependent and receiving support from the decedent is entitled to less than the benefits provided in § 81-1315 (c). Any other result would not be in keeping with the libera] and benevolent spirit of the Workers’ Compensation Act. Triebsch v. Athletic Mining and Smelting Company, 218 Ark. 379 (1951); Batesville White Lime Company v. Bell, 212 Ark. 23 (1947). We conclude that the decision of the Commission affirming the Administrative Law Judge’s finding that the minor child of James H. Moppin should be affirmed, but such decision is modified by eliminating the words “as a matter of law”, the award being on the basis of substantial evidence that Brad Moppin was actually dependent upon the decedent at the time of death. Affirmed as modified. ", "ocr": true, "opinion_id": 7820931 } ]

[ "267 Ark. 1159", "594 S.W.2d 47" ]

[ { "author_str": "Penix", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Marian F. Penix, Judge. Appellant Davis appeals from a jury conviction on Aggravated Robbery and a sentence of 25 years. He appeals also from a sentence of an additional two years upon the revocation of probation. Davis was charged with the robbery of the First National Bank Main Branch of Camden, Arkansas which occurred April 23, 1979. OnJanuary31,1979, Davis pled guilty to a charge of Criminal Use of a Prohibited Weapon. He was fined $100 and placed on five year probation. A Petition for Revocation of Probation was filed and scheduled to be heard April 25, 1979. Davis’ court appointed counsel moved for a continuance and it was granted. On May 4, 1979, Davis’ attorney filed a Notice of Defense stating he intended to raise a defense to the bank robbery charge and to the alleged violations of conditions of probation, his lack of capacity as a result of mental disease or defect, to conform his conduct to the requirement of law and to appreciate the criminality of his conduct. On May 4, the trial court ordered Davis committed to the Arkansas State Hospital for observation and examination. On May 22, Davis filed a Motion for Continuance to enable his counsel to acquire medical information and records relative to Davis’ prior commitment in a mental institution in Buffalo, New York in January, 1978, and because no report had yet been issued by the Arkansas State Hospital. Before trial, Davis received the State Hospital report. On June 22, 1979, Davis was convicted. I Davis contends there was error in the court’s denial of the Motion for Continuance to secure the medical records from New York and to secure records of Davis’ military service. Davis contends he was forced to trial without proper preparation. Not guilty by reason of mental disease or defect must be proven by a preponderance of the evidence. Davis’ attorney received a discharge diagnosis summary from New York which described Davis’ “acute schizophrenic episode”. It noted that Davis had been brought to the New York Medical Center following his appearance at a TV station where he posed as an FBI agent. It noted that Davis did this because voices told him to do so. It also pointed out Davis’ thought content was delusional and he complained of hearing voices and seeing things. The New York doctors were the only ones who examined and treated Davis for a condition where Davis complained of committing an unlawful act upon the command of voices. Davis’ attorney sought to obtain the New York hospital’s supporting data and basis for its diagnosis as noted in the discharge summary. Because of certain required procedures Davis’ attorney had not yet received the data and records. The trial court refused to allow a continuance, finding the reports of the Arkansas doctors were sufficient for a determination by the jury. The Arkansas doctors’ testimony was that Davis was without psychosis. Also, the court found whatever the New York reports contained would be added evidence only to that already introduced and were unnecessary to Davis’ defense. The court noted that on the issue of insanity Davis had the State Hospital report of May 24, 1979 which indicated he was without psychosis, able to assist in his defense and probably sane at the time of the offense. Further, Davis had the reports from the South Arkansas Mental Health Center stating on August 19, 1977 and December 15, 1978, Davis was without psychosis and able to assist in his defense. With the additional discharge summary from New York, the trial court concluded there was adequate medical information on the issue of insanity and therefore denied the motion for continuance. Factors which must be considered by trial courts in exercising their discretion in granting or denying a motion for continuance are the probable effect of the testimony or evidence, the likelihood of procuring the evidence, and its relevancy. Worley v. State, 259 Ark. 433, 533 S.W. 2d 502 (1976). There was no showing if the evidence did exist and was obtained that it would be relevant to the issue of Davis’ sanity at the time of the offense and at trial. Davis relies on Westbrook v. State, 265 Ark. 736, 580 S.W. 2d 702 (1979). However, in the instant case, Davis was not denied crucial evidence. In Westbrook, the defendant had asked for records from the State Hospital relative to two prior commitments. He had been granted the same on paper but had not received the records at the time of trial. Davis had in his possession all the state medical records pertinent to his mental condition. He was not denied evidence which was crucial to his defense. Here there is no showing that there was additional material evidence obtainable. We cannot say the trial court abused its wide discretion in refusing a further continuance. II Davis contends the court erred in denying Davis’ challenges for cause against two prospective jurors. The prosecuting attorney was questioning the prospective juror Willie Arnold. Mr. Arnold stated in reference to finding Davis guilty or innocent he (Arnold) would “go along with the bunch’ ’. Davis contends that under the rationale of McCree v. State, 266 Ark. 465, 585 S.W. 2d 938 (1979), Mr. Arnold should have been excused. In McCree, the Supreme Court held it was proper for the trial court to excuse for cause a prospective juror who indicated he was unequivocally opposed to the death penalty. In that case the state was seeking the death penalty. In reviewing the entire exchange during voir dire it appears Mr. Arnold misunderstood what was required of him as ajuror. The court explained to him what his duty was and determined Arnold would in fact stick by what he felt was right regardless of what the other jurors thought. In questioning the prospective juror Sylvia Nutt, Ms. Nutt stated she could not definitely say she would not be biased because she herself had been a victim of a theft. In response to the trial court’s questions, she did indicate, she would try her best to be fair and.impartial to both the State and to Davis, and there was no indication she had already made up her mind as to Davis’ guilt or innocence. There is no evidence she had made a pre-judgment. Our Supreme Court has allowed large discretion in the trial court’s determination of a prospective juror’s bias or prejudice as affecting his qualifications to serve. The question of the impartiality of the jury is a judicial question of fact within the sound discretion of the trial court. Strode v. State, 257 Ark. 480, 517 S.W. 2d 954 (1975). III Davis alleges error in the court’s answer to the jury on its query during deliberations. Prior to rendering a verdict the jury returned and asked: The jury is concerned that if by chance the young man is incarcerated, is it possible he will receive some form of psychiatric help while he is in prison? The court’s response was: All right, now, ladies and gentlemen, the only way I can possibly answer that question is that the Department of Corrections is operated by a Board of Corrections, which is a part of the executive branch of government. The judicial branch of the government, or the Courts, have no control over the Department of Corrections. The Department of Corrections of course has the authority to administer such medical or mental services as they may be deemed the inmates might need. That’s as far as I’m permitted by law to answer that question, because I could give you no guarantee one way or the other, certainly. We find nothing in the court’s response which could be construed as erroneously invading the province of the jury. See Moore v. State, 231 Ark. 672, 331 S.W. 2d 841 (1960). Finding no reversible error, we affirm. Affirmed. Howard and Newbern, JJ., dissent. ", "ocr": true, "opinion_id": 7820988 }, { "author_str": "Howard", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " George Howard, Jr., Judge, dissenting. I dissent inasmuch as I am of the view that the trial court erred in not excusing Mrs. Sylvia Jo Nutt for cause, over the objections of appellant’s attorney, which required the defendant to exercise one of his peremptory challenges in order to excuse Mrs. Nutt from serving as a juror. During voir dire, the following exchange took place between the attorney for appellant and Mrs. Nutt: MR. KE AT ON: Have either of you been either the victim of a robbery or had one of your'friends or relatives, loved ones, who have been the victim of a crime, robbery or any type of crime? MRS. NUTT: We had a robbery. We had a robbery last year. Our property was returned to us quickly. MR. KEATON: Okay, do you think that’s going to cause you any I guess, somewhat sympathetic feeling toward another victim who is the victim I guess of — what appears to be the victim of a crime. MRS. NUTT: I hope not. MR. KEATON: You think it might cause a few problems? MRS. NUTT: Well I hope that it wouldn’t. But I can’t say definitely that it would. * MR. KEATON: Okay, I guess what you’re really shying is that it might? MRS. NUTT: There’s a far out chance that it might. MR. KEATON: Okay. Even though like you already heard the Court instruct you as to what the law is and you know, what your duties are, and even after considering that, you still I guess in your mind, would be saying a slight reservation that it might cause you some problems to be somewhat sympathetic to I guess First National Bank. MRS. NUTT: I’d make every effort for it not to be. The following exchange took place between the Court and Mrs. Nutt: THE COURT: Mrs. Nutt, if you were selected to serve on this jury, could you go into the jury box and be both fair and impartial to both the State of Arkansas and this defendant? MRS. NyTT: I would hope so. I would try my best to. THE COURT: Okay. In other words, now we’re here to listen to the witnesses tell us what happened. MRS. NUJT: That’s right. THE COURT: Because something happened last month, last year, ten years ago to you, is not going to affect you in determining the innocence or guilt of this defendant, would it? It could have no bearing, could it? MRS. NUTT: Ithad no bearing on what happened to me. I hope that I’d be able to separate that from my own personal experience. THE COURT: So you keep saying ‘hope,’ and ‘try’ and all that, and what — I guess I’m at a loss to understand how it could affect what the facts in this case are. MRS. NUTT: I’m a real bad person at being able to see both sides. THE COURT: You want to see both sides, and that’s what both of them want you to see, and if you go in the jury box, will you listen to what the witnesses say, and determine guilt or innocence, solely on the basis of what you hear from the witness stand? MRS. NUTT: I think I could. I can’t be any more definite than that. THE COURT: Í realize — I say it’s just like my wife, I think. Will you? Let me put it that way. MRS. NUTT: I will. THE COURT: All right. I think that she’s being as honest as she can be, and I think we sometimes nitpick as I call it with jurors when they are trying to be honest, and say, T really think I can,’ and I believe you can, and having known you for a long time, I believe you can. Your challenge is denied and your exceptions is saved. Inasmuch as it is plain from the record that appellant ultimately exhausted all of his challenges, the ruling of the trial court may not be characterized as harmless error. In Glover v. State, 248 Ark. 1260, 455 S.W. 2d 670, our Supreme Court made it clear that every accused is entitled to a fair trial by a panel of impartial and indifferent jurors. A failure to accord an accused this right violates the standards of due process. David Newbern, Judge, dissenting. ", "ocr": true, "opinion_id": 7820989 }, { "author_str": "Newbern", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " David Newbern, Judge, dissenting. I believe the trial court’s abuse of discretion in denying the appellant a continuance for the purpose of attempting to obtain additional medical evidence from New York was patent. I can, in no meaningful way, distinguish this case from Westbrook v. State, 265 Ark. 756, 580 S.W. 2d 702 (1979), and the majority opinion certainly does not do so. In Westbrook, the accused sought medical notes which Arkansas hospital diagnoses were based upon. The supreme court held refusal to grant a continuance to permit the defendant to obtain them was error. I do not know what the trial judge meant by “added evidence.” If he meant “cumulative evidence,” I think he was wrong. A discharge summary showing a ‘ ‘schizophrenic episode’ ’ is hardly the kind of powerful evidence the detailed medical notes leading to that diagnosis might have been. The appellant needed that evidence because it, unlike the local reports, was indicative of his condition prior to the alleged offense. It apparently would have been as diametrically opposed as possible to the reports of the Arkansas agencies with respect to the probable condition of the appellant at the time the offense was committed. Thus, I cannot agree that it would in any way have been cumulative. For the very reason that it would have been “added evidence,” I believe it was necessary to grant the continuance. Nor does it matter that the appellant did not know for certain he could obtain the reports he sought. Note the language of the opinion in the Westbrook case:' Due to the nature of the defense we feel it was necessary that appellant have these records, if they exist, in order to fully prepare his defense. . . ! It may be that something in these records would have enabled appellant to furnish stronger proof on his behalf. [580 S.W. 2d at 707. Emphasis supplied.] For this reason, I dissent. ", "ocr": true, "opinion_id": 7820990 } ]

[ "268 Ark. 1031", "598 S.W.2d 427" ]

[ { "author_str": "Newbern", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " David Newbern, Judge. This action arose in the course of probate of the estate of the late Senator John L. McClellan. It was initiated by a petition, filed with the probate court by the executor, which sought a determination of ownership of specified personal property in the possession of the Senator’s daughter, Mary Alice McDermott, and some property in her name which was in the Senator’s possession when he died. The petition asserted there was controversy whether the named items should be included in the estate. The court held the property was all part of the estate. We agree. In 1963 the Senator created a trust of a $10,000 savings account. The trust instrument named Mary Alice McDermott as trustee and provided that other assets might be added to the corpus. The trust, by its terms, ceased to exist in 1973. During the ten year duration of the trust, the Senator transferred to “Mary Alice McDermott, Trustee,” stock certificates in Home Theaters Corporation and certificates of deposit in Capital Savings & Loan, Heber Springs Savings & Loan, and Arkansas Valley Savings and Loan. As amended, the petition sought determination of ownership, as between the estate and the appellant, of all these items as well as shares in Metropolitan National Bank. The bank stock was discovered in the Senator’s lockbox after his death. The stock consisted of several certificates issued to Mary Alice McDermott, without designation as trustee. To one of the certificates was attached to a blank stock power signed by the appellant, Mrs. McDermott. It is undisputed that Senator McClellan supplied the purchase money for each of these items. In the course of several hearings at which only lawyers for the executor and the appellant and other beneficiaries of the estate appeared, the appellant presented her affidavit in which she contended that, upon termination of the trust, Senator McClellan gave her the items mentioned as to which she had been designated “trustee” and that he had also given her the bank stock. At some point, the bank stock had split, and the added shares were issued in her name. She stated the bank stock certificates were found in the Senator’s lockbox at his death because, at his request, she had agreed to sell some of the stock to persons selected by him. She had no recollection of signing the blank stock power. The appellant’s affidavit showed she had “returned” the passbook of the Capital Savings & Loan account to the Senator so he could “add . . . sums and otherwise handle this for my benefit,” and at sometime the account had been converted to a certificate of deposit. She stated further that she had voted the Home Theaters stock, and those stock certificates had always been in her possession. The appellee presented some of Senator McClellan’s personal records showing that Senator McClellan paid income tax on the interest which was credited to the accounts represented by certificates with the savings institutions mentioned above. He also reported the dividends on the bank stock as income taxable to him. In her affidavit, the appellant said she sent the bank dividend checks to the Senator so that he might pay the income taxes. She said: It is and was my belief that the amounts represented by the checks mailed to him were used to pay income taxes, and amounts representing the balance were given to me, although no exact formal accounting was furnished. It is thus unclear whether any money sent by the appellant to the Senator was actually returned to her, as we cannot determine the meaning of the word “given” in this context. In the affidavit, the appellant said her father’s intent in making these substantial gifts to her was to see to it that his descendants by his first wife were adequately provided for, as he feared his spouse, now his widow, would not be as generous with them as with her own children. 1. Jurisdiction a. Basic Authority The appellant contends the probate court has no authority to try title to property where the contest is between the estate and a “stranger,” i.e., one who is not a beneficiary. Hilburn v. First State Bank of Springdale, 259 Ark. 569, 535 S.W. 2d 810 (1976); Snow v. Martensen, 255 Ark. 1049, 505 S.W. 2d 20 (1974). The gist of the argument is that, while “Mary Alice McDermott” is a beneficiary of the estate, “Mary Alice McDermott, Trustee,” is not, and these cases which would permit resolutions of title questions among the beneficiaries and the executor will not permit such resolutions between the estate and a person who, in her capacity as “trustee” is not a beneficiary. While we agree that an action against an individual is different from an action against that person as trustee, we do not find that distinction important here. Although the designation of Mary Alice McDermott as “trustee” with respect to some of the assets in question is relevant to the question whether they were gifts to her after the trust terminated, this is not an action against her as trustee. Rather it is an action to determine whether the items are hers as an individual, as she asserts, or property of the estate. The question is not whether she holds the items as trustee but whether she owns them outright as opposed to the estate. Her response to the evidence presented showing they are in the estate is that they were gifts to her. We hold Snow v. Martensen, supra, authorizes the probate court to undertake resolution of this sort of title dispute between the estate and a beneficiary, Dictum in the Hilburn case repeats that proposition. b. Remedies Upon oral argument of this case, the appellant urged that the probate court, unlike a court of equity, has no power to compel conduct and thus to require a party to convey property or, in the alternative, to appoint a commissioner to transfer the title. Although this point was not argued strongly in the appellant’s brief, it was sufficiently mentioned. It was argued strongly in a brief submitted to the trial court. The application of the point to this case seems to be that to get the bank stock transferred out of the name of the appellant and into the name of the executor, and to get the theater stock and the certificates transferred from “Mary Alice McDermott, Trustee,” to the executor will require an equitable remedy, and thus the probate court lacks jurisdiction. We wholeheartedly agree that the probate court is not a court of equity and thus it may not grant purely equitable remedies, other than ones which may be authorized by statute. Merrill v. Smith, Special Administrator, 226 Ark. 1016, 295 S.W. 2d 624 (1956); Arkansas Valley Trust Co. v. Young, 128 Ark. 42, 195 S.W. 36 (1917). It is troublesome to us to think that the distinction we retain between law and equity courts might make necessary a separate lawsuit in a case like this one just to get the same person who sits both as chancellor and as probate judge to give a traditionally equitable remedy as chancellor based on proof already before him as probate judge. A more egregious waste of time is hard to imagine. But the plain answer to the problem raised by this appellant is that the appellee has sought no equitable remedy, and the probate court did not propose to grant one. We presume that if an equitable remedy is needed in the future, the parties will seek it in the proper court. 2. Adequacy of the Petition The appellant contends the petition fails to state a cause of action. There is no requirement of which we are aware that a petition filed by an executor to settle questions of ownership between the estate and a beneficiary state a claim or cause of action in the sense that a complaint must. We can only assume the appellant makes this argument on the premise that she is a third party or stranger to the estate. We have disposed of that contention above in part l.a. of the opinion. 3. Amendment of the Petition The appellant argues the petition was amended on March 16, 1979, to add items to the list of those in controversy between the appellant and the estate after evidence had been taken on March 14, 1979, and that no such amendment should have been allowed. The appellant cites no authority on this point. In our view, the executor could have amended to add items or could have filed fresh petitions at anytime alleging ownership or controversy among the parties with respect to items he claimed to be in the estate. The appellant was offered an opportunity to present evidence as late as July 13, 1979, which was the date of the final hearing on these matters. We find no prejudice to the appellant whatever and no authority which would have required foreclosing the amendment or filing of a petition as argued. 4. Statute of Limitations The appellant contends that when the trust ended, December 31, 1973, by the terms of the trust instrument, the statute of limitations began to run in her favor. As pointed out by the appellee, we assume this argument applies only to the items held by the appellant as “Mary Alice McDermott, Trustee.” The five year “catch-all” statute, Ark. Stat. Ann., § 37-213 (Repl. 1962), apparently is the one which would apply, and the appellant contends this action was not commenced within five years after the termination of the trust. For the proposition that limitations begin to run when a trust terminates by its own terms, the appellant cites the following passage from Bogert, Trusts and Trustees, § 951, p. 475 (1962): If the period ends during which the trust was by its terms to continue, and there is no conduct on the part of the remaindermen which amounts to a consent that the former trustee holds for them under a new trust, or as a bailee, or in some other representative capacity, the possession of the old trustee automatically becomes adverse to that of those persons who are entitled to possession at the end of the trust, and the statute of limitations regarding an action to recover real or personal property begins to run. The instrument pursuant to which Mrs. McDermott acted as trustee provided that upon termination of the trust, the corpus would be paid to Senator McClellan. He was the only remainderman. There was certainly conduct on his part which could be characterized as consent that the appellant hold under a new trust or as bailee or in some other representative capacity. There was no adverseness between the appellant and the Senator. His recording of the income from all but one1 of these assets and payment of taxes on it is strong evidence he retained an interest in the property. Thus, the quoted passage does not apply. The appellant cites other general authority for the same proposition as is contained in the passage from Bogert. Upon examination, however, we find it is subject to the same qualifications. While we agree that a trustee of a discharged trust may hold adversely to the cestui, that clearly was not the case here. 5. Burden of Proof The appellant cites a number of cases showing that one who asserts that property in the possession of another is held in trust bears the burden of proof, e.g., Bottenfield v. Wood, 264 Ark. 505, 573 S.W. 2d 307 (1978); Mulligan v. Payne, 232 Ark. 922, 341 S.W. 2d 53 (1960). She contends the trial court erred in casting upon her the burden of showing the items in question were gifts to her. We agree that if this were a case in which a third party or stranger to the estate were being sued by the executor to prove the corpus of a trust held in the name of the defendant were part of the estate, the burden might be as the appellant suggests, and the citations would be appropriate. However, this is not such a case. The appellee does not suggest these items are held in trust by the appellant. The parties agree the trust terminated in 1973, and the appellant says these items were gifts to her. Rather, the question is whether, after that date, the items in the name of “Mary Alice McDermott, Trustee,” were the property of the Senator or the appellant. In response to this point, the appellee argues there was no factual issue in the case, and thus the question who had the burden of proof is moot. While we agree the “evidentiary” facts seem undisputed, the “ultimate” fact, i.e., whether there was a donative intent in leaving these items of the trust corpus in the possession of the appellant and purchasing stock in her name, must be regarded as disputed. In his later argument on the question of where the preponderance of the evidence lay, the appellee says:, . . . [S]ince it is necessary for a trustee who claims trust property as a gift to establish the existence of the gift with the strongest of evidence, things that were necessary to do it right were never done and there is no indication that such an intention existed. That statement indicates the appellee thought (and still thinks) the burden surely was on the appellant to prove the items were given to her. In his final order, the trial court referred to the heavy “burden of a trustee who claims the subject matter of his trust property,” thus the court apparently regarded this burden as one borne by the appellant. The issue thus becomes whether, in proceedings before a probate court to ascertain the assets of the estate, a beneficiary who claims title to property which is asserted by the executor to be part of the estate bears the burden of proof. Although the appellant has cited cases, noted above, holding that one asserting property held by another is held in trust must prove it, no cases are cited on the issue as we have just stated it. We have found no helpful authorities on this very precise question. Looking at other cases in which the question has been whether a decedent made a gift, the common thread seems to be that whoever claims the gift was made must prove it, regardless who initiated the inquiry. In Bennett v. Miles, 212 Ark. 273, 205 S.W. 2d 451 (1947), it was made clear, although not specifically stated, that an executor who did not list a certain asset as part of the estate had the burden of establishing that it had been the subject of a gift by the decedent. The question arose when the executor was faced with an exception to his accounting filed by one claiming as a pretermitted child. In Baugh v. Howze, 211 Ark. 222, 199 S.W. 2d 940 (1947), again without specifically saying so, our supreme court made it clear that one who asserts a decedent has made a gift must prove it even though he is not the “plaintiff” or moving party. There, a widow who was the sole beneficiary of her husband’s will sought to recover some money he had placed with a friend to be distributed upon his death to his brothers and sisters. The court held the proof insufficient to show the decedent took the steps necessary to make the gift. As a practical matter, there is good reason for this approach. If the burden were on the one claiming no gift was made, then the burden would be one of proving a negative proposition. In most cases that burden would be intolerable. We hold it was not incorrect for the trial court to place the burden on the appellant to show the Senator had made a gift to her of the property she once had held in trust and property in her name but for which he paid and as to which he retained income and paid taxes. 6. Preponderance of the Evidence We will not review in detail the evidence presented below. The case was submitted primarily on an affidavit by the appellant, discovery responses by her, and the Senator’s personal records showing income receipts and tax payments with respect to the assets in question. No testimony was taken, and the entire “live” portion of the record consists of colloquy among the lawyers for the appellant and other beneficiaries, the court, and the lawyer for the appellee. The appellant and the other beneficiaries apparently were, for personal reasons, unwilling to testify. The court simply held the evidence insufficient to establish the claimed gifts, and we cannot say his ruling was against the preponderance of the evidence. In this connection, quotation from the final paragraph of the opinion in Baugh v. Howze, supra, is appropriate. . . . [T]he question here simply stated is, do the facts show a gift of the $10,000 to Dr. Howze’s brothers and sisters? Conceding that Dr. Howze wanted this money to go to his sisters and brothers after his death, still unless he took proper or legal steps to carry out such intention, this court cannot act for him and give legal effect to the donor’s wishes when the donor himself has failed to comply with the essential requirements necessary to effectuate the gift. [211 Ark. at 228] Had the senator wished to make gifts of the items the appellant once held in trust, it would have been a simple matter to have had them reissued to her without the word “trustee.” Conceding he wanted the items to go to her, he failed to take a step which we regard as essential in these circumstances in view of the strong evidence needed to show that one named as “trustee” ceases to act in that capacity with respect to property which remains in her possession and which she asserts was given to her. In Young v. Barde, 194 Ark. 416, 108 S.W. 2d 495 (1937), our supreme court held that an alleged gift to a person who occupies a confidential or fiduciary relationship would be scrutinized with the most “jealous care,” quoting Gillespie v. Holland, 40 Ark. 28 (1882). The Young case was cited with approval in Barrineau v. Brown, 240 Ark. 599, 401 S.W. 2d 30 (1966). The preponderance of the evidence also supports the decision with respect to the bank stock. We cannot say the lower court erred in finding this stock which was in the Senator’s possession at his death accompanied by a blank power was to be included in his estate, especially in view of his records showing receipt of dividends and taxes paid on them by him. The evidence to the contrary was not “clear and convincing.” Mohr v. Hampton, 238 Ark. 393, 382 S.W. 2d 6 (1964). Affirmed. Howard, J., dissents. The record does not show income from the Home Theaters stock. ", "ocr": true, "opinion_id": 7821152 }, { "author_str": "Howard", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " George Howard, Jr., Judge, dissenting. The majority found that the trust of the late Senator McClellan: “[B]y its terms, ceased to exist in 1973 . . .the instrument pursuant to which Mrs. McDermott acted as trustee provided that upon termination of the trust, the corpus would be paid to Senator McClellan. He was the only remainderman. There was certainly conduct on his part which could be characterized as consent that the appellant hold under a new trust or as bailee or in some other representative capacity. . . .” The majority further stated: “While we agree that an action against an individual is different from an action against that person as trustee, we do not find that distinction important here. . . . The question is not whether she holds the items as trustee, but whether she owns them outright as opposed to the estate. Her response to the evidence presented showing they are in the estate is that they are gifts to her.” The pivotal issue in the case is not, as perceived by the majority, whether the Probate Court had jurisdiction to determine title to property, purportedly in possession of the appellant belonging to the estate of the late Senator John L. McClellan, but whether the Probate Court has jurisdiction to require a trustee to render an accounting of her stewardship. The trust agreement, which was executed by the late Senator McClellan and appellant on December 31, 1963, while stating the trust would terminate ten years from the date of its execution provides: “The trustee, without regard to any legal restriction otherwise applicable to trustees, shall be entitled: (d) to continue to have or exercise after the termination of the trust in whole and in part and until the final distribution thereof, all the titles, powers, discretions, rights and duties conferred or imposed upon the trustee or by this agreement during the existence of the trust. “The trustee may at any time render an account of her proceedings to the grantor, or, after the death of the grantor . . .” (Emphasis added) Appellee’s petition filed in the Probate Court, purportedly raising an issue involving the title to the assets in the possession of appellant, makes the following pertinent and dispositive allegations: “The executor states that there are unsolved controversies arising out of whether certain items or property of the estate are the individual property of Mary Alice McDermott. . . . “Petitioner attaches hereto a copy of a trust executed by decedent in 1963 naming Mary Alice McDermott as trustee. The trust expired ten years after its inception. “ . . . the executor prays that the court hold a hearing .. . to determine ownership of the above items.” It is plain that the relief sought by appellee in the trial court against appellant is in her capacity as trustee and, accordingly, the Probate Court was without jurisdiction to entertain the matter. It is well settled that the question of whether a court of equity has jurisdiction over a subject matter of an action is determined from the allegations of the petition. Scroggins v. Bowen, 249 Ark. 1155, 464 S.W. 2d 79; Graysonia N. & A. R. Co. v. Newberger Cotton Co., 170 Ark. 1039, 282 S.W. 975. Moreover, exhibits to a petition control its averments and the nature of the cause of action. Moore v. Exelby, 170 Ark. 908, 281 S.W. 671. It is clear that the assets claimed by the appellee were purportedly delivered to appellant in her capacity as trustee and not in her individual capacity. An action for the discovery and recovery of trust assets is peculiarly an equitable proceeding since a law court is not endowed with the machinery to adjust the rights and equities involved. Ferguson v. Rogers, 129 Ark. 197 (1917); Spradling v. Spradling, 101 Ark. 451, 142 S.W. 848; Blanton v. First Nat’l Bank, 136 Ark. 441, 206 S.W. 745. It is beyond debate that only a person occupying the position of trustee can be required to render an accounting of his administration of the trust estate. It is clear from the exhibit, the trust agreement, attached to appellee’s petition, that it was the intention of Senator McClellan that the appellant should be afforded the discretion to administer the trust even after the expiration date contained in the agreement; and that the trustee may at any time render an accounting, even after the death of the Senator. I would reverse and remand the case to the Probate Court of Pulaski County to be transferred to the Pulaski County Chancery Court. Accordingly, I dissent. ", "ocr": true, "opinion_id": 7821153 } ]

[ "269 Ark. 966", "601 S.W.2d 275" ]

[ { "author_str": "Penix", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Marian F. Penix, Judge. Claimant was injured on the job April 13, 1978 while in the employment of Appellant. Appellant paid temporary total disability benefits from April 14, 1978 until May 15, 1978 and medical bills. At the conclusion of an April 17, 1979 hearing the Administrative Law Judge left the record open for depositions of doctors and requested the attorneys to advise him within ten days of the hearing the doctors who would be deposed. The record was kept open for almost 90 days until July 12, 1979 at which time the Administrative Judge filed an opinion denying any additional benefits to the Claimant. His opinion reflects it is partially based upon a letter report of Dr. Joe K. Lester dated April 16, 1979. The Administrative Law Judge interpreted this letter as Dr. Lester’s withdrawal of his 5 to 10% physical impairment assessment which Dr. Lester had made in his letter dated January 30, 1979- The Claimant’s attorney wrote the Administrative Judge a letter on July 17, 1979 in which he said: I am in receipt of your Opinion filed July 12, 1979 • • • My first reaction is to ask that the Opinion be amended in that it appears to be based on your feeling that Dr. Lester’s disability was withdrawn in his letter of April 16, 1979. I would be happy to have Dr. Lester clarify that matter and submit the matter for an amended decision if the Court feels that would be proper. Otherwise we will proceed with appeal . . . On July 23, 1979, the Administrative Judge responded to the Claimant’s attorney: This will acknowledge receipt of your letter dated July 17, 1979- You are correct in the second paragraph of your letter in assuming I considered Dr. Lester’s disability to be withdrawn in his letter of April 16, 1979. I would appreciate some clarification from Dr. Lester and if he had, in fact, not withdrawn the disability rating I will amend the opinion to reflect that. I had rather do it this way than have you ánd Bill Prewett (Respondent’s Attorney) go to the expense of an appeal to the Full Commission and then having it remanded to me . . . On October 9, 1979 Dr. Lester wrote Claimant’s attorney: In response to your request for medical information, Mrs. Meadows has two different orthopedic problems. One of which is a degenerative lumbar disc for which, in the opinion of this examiner, she has 5 to 10% physical impairment of the body as a whole on the basis of symptomatic degenerative disc disease at L5-S1. In addition, she had a Morton’s neuroma of the right foot which was operated and for which she should have no physical impairment. I realize in retrospect that since the sciatica was on the right and her Morton’s neuroma was on the right that this has been confusing for all involved for which I submit my humble apology. By no means did I intend to leave the impression that the fact that she had a Morton’s neuroma did away with her, what I consider, obvious degenerative disc disease. The Claimant’s position is the July 23, 1979 letter from the Administrative Judge indicates the appeal time was tolled until a report from Dr. Lester clarifying his position was submitted for an amended opinion. An amended opinion was rendered October 31, 1979 awarding the Claimant a 10% permanent disability. Respondent appealed to the Full Commission. The Commission ordered a remand to the Administrative Law Judge for the purpose of taking additional evidence and for the purpose of giving Respondent the opportunity for cross-examination as provided by Commission Rule 20. Respondent brought this appeal. Respondent contends the July 12, 1979 decision was a final adjudication and the Administrative Law Judge was therefore without jurisdiction to issue any amended opinion. Respondent contends the ex parte letter from Dr. Lester to Claimant’s attorney could not be filed and considered 90 days after the rendering of the opinion and 60 days after the expiration of the time within which to file a petition for review or appeal. Respondent contends the procedure for securing a review of or for perfecting an appeal from decisions and orders in compensation is prescribed in detail in Ark. Stat. Ann. § 81-1325(a): A compensation order or award of a referee shall become final unless either party to the dispute shall, within thirty days from the receipt by him of the order or award, petition in writing for a review by the Full Commission of the order or award. We cannot consider the issue raised by the Respondent-Appellant. The Commission Order of January 17, 1980 is not a final order, and hence not appealable. The setting aside of a judgment for the Claimant and the order opening up the record for the taking of additional evidence, is not a final order which is appealable. Johnson v. Bear Brand Roofing Co., 234 Ark. 733, 354 S.W. 2d 277 (1962): For a judgment to be final and appealable, it must in form or effect: Terminate the action; operate to divest some right so as to put beyond the power of the court to place the parties in their former condition after the expiration of the term; dismiss the parties from the court; discharge them from the action; or conclude their rights to the matter in controversy. Allred v. National Old Line Insurance Company, 245 Ark. 893, 895-896, 435 S.W. 2d 104 (1968) quoting Johnson v. Johnson, 243 Ark. 656, 421 S.W. 2d 605 (1967). Therefore, this Court has no jurisdiction over this case. Appeal dismissed. ", "ocr": true, "opinion_id": 7821334 } ]

[ "270 Ark. 748", "606 S.W.2d 149" ]

[ { "author_str": "Penix", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Marian F. Penix, Judge. On October 25, 1979 Carol Hartson was in her car parked at the Pine Bluff Jefferson Square shopping center. She was parked in a space designated for parking. Mr. Brown was in his car moving in the through lane between the rows of parked cars. Ms. Hart-son moved forward in her car, pulling out of the parking space directly into the path of Mr. Brown’s car, causing his car to strike her car. Ms. Hartson was issued a traffic citation by the Pine Bluff Police Department. She was charged with the violation of failure to yield the right of way with accident. Ms. Hartson appeared in Municipal Court and pled not guilty November 7, 1979- The case was tried December 17, 1979. Ms. Hartson was found guilty and fined $25.00. Mr. Brown and a police officer appeared as witnesses. Ms. Hartson appealed the conviction and the Circuit Court affirmed. She appeals. Ms. Hartson contends the Pine Bluff Police Department had no authority to issue her a traffic citation. Ms Hartson contends that under the Arkansas statutes dealing with traffic violations there is simply no authority for the issuance of citations on private parking lots. Ms. Hartson also contends there is no city ordinance authorizing citations on private parking lots. Basically, her contention is the parking lot is private property and therefore the statutes relating to the operation of vehicles upon highways could not apply. The State argues the precise offense did not need to be stated prior to trial. A summons naming or briefly describing the offense is sufficient in the case involving violations of ordinances of cities or towns prosecuted in police or city courts, and that no written information or pleadings are required in prosecutions in which an indictment is not required. The State cites Ark. Stat. Ann. § 44-105 as support for this argument. It states: Indictment Unnecessary — No indictment shall be necessary in prosecutions for violation of the by laws or ordinances of a city or town, nor in other prosecutions in police or city courts. Therefore, the traffic citation which cited Ms. Hartson for failure, to yield the right of way served to apprise her of the nature of the change against her. The State then argues there are two other statutes dealing with driving a car with safety which would apply. While the argument with regard to an indictment being unnecessary may well be correct, there is a major fallacy in the State’s position. We can find no violation with which appellant can be charged. While there may well be civil liability on the part of Ms. Hartson for the accident, there is no criminal liability. Ms. Hartson is charged with failure to yield the right of way. Ark. Stat. Ann. § 75-419 defines right of way as: “The privilege of the immediate use of the highway.” [Emphasis supplied] Ark. Stat. Ann. § 75-412 defines a highway as: (a) STREET OR HIGHWAY. The entire width between property lines of every way or place of whatever nature when any part thereof is open to the use of the public, as a matter of right, for purposes of vehicular traffic. [Emphasis supplied]. While the parking lot at the shopping center is open to the public for purposes of vehicular traffic, it is not open as a matter of right. This is a parking lot belonging to the owner of the shopping center. The public is there by permission of the owner. The definition of a private road is contained in Ark. Stat. Ann. § 75-4l2(b). It states: (b) PRIVATE ROAD OR DRIVEWAY. Every way or place in private ownership and used for vehicular traffic by the owner and those having express or implied permission from the owner but not by other persons. The parking lot would come under this definition, not that of a highway or street. Ms. Hartson was not on a highway. Therefore she cannot have failed to yield to one who had the privilege of immediate use of the “highway.” The State argues the traffic citation served as notice to Ms. Hartson that her activity was a violation of the traffic laws of this state. More specifically she was on notice of what activity was the subject of the violation. The State argues Ark. Stat. Ann. § 75-617 was violated. This statute states it is a violation to “start a vehicle which is stopped, standing or parked unless and until such movements can be made with reasonable safety.” This argument must fail in light of Ark. Stat. Ann. § 75-420 which provides: Provisions of act refer to vehicles upon the highways — Exceptions. — The provisions of this act relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways except: 1. Where a different place is specifically referred to in a given section. Since § 75-617 does not refer to a place other than a highway or street, we must assume it only applied on a highway or street. Once again, we note the private parking lot does not come under the definition of a highway or street. While we agree with the State Ark. Stat. Ann. § 43-414.1 allows a police officer to enter the parking areas of private business establishments to “discover, investigate and effect the arrest of persons thereon violating any state or local law to the same extent as if such person or persons were upon the public streets or highways,” there must first be a violation for which an arrest can be made. Finding no statute to have been violated, we must reverse and dismiss. Reversed and dismissed. ", "ocr": true, "opinion_id": 7821469 } ]

[ "273 Ark. 399", "619 S.W.2d 655" ]

[ { "author_str": "Holt", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Frank Holt, Justice. This is an appeal from several orders of the probate court pertaining to certain disputed issues in probating the estate of the testator, William Herbert Hanna. The disagreements arose between the appellant, the testator’s widow and executrix, and appellees, the testator’s son, William Herbert Hanna, Jr., and a local bank as trustee, residuary beneficiaries. All matters were resolved by the probate court in favor of the appellees. The testator, age 85, died March 24, 1975, leaving an adjusted gross income valued for federal estate tax purposes which was determined to be 51,774,003.22. His will was admitted to probate and his widow appointed executrix on April 4 of that year. His will left one-half of the assets of the estate to the appellant, to be selected by her (after deducting the amount of properties passing to her outside the will), as a marital deduction bequest, 540,000 to Hanna, Jr., several specific bequests of lesser amounts, and the remainder to the bank as trustee with the net income to be paid to appellant at least quarter-annually, according to her needs — the remaining net income to be distributed at least annually to the son. The trust had other provisions not pertinent here. It appears that by February, 1977, the specific bequests had been paid as well as the debts of the estate including the federal and state estate taxes. During the next two years, various motions, accountings, objections thereto, interrogatories and responses were filed, and hearings conducted. Finally, when certain issues could not be resolved by agreement, they were submitted to the probate court. On these issues the court found that all of the income derived from the estate during the administration should be allocated to the residuary trust; that $750 per month, being paid by a court order to appellant from the estate, should be applied and allocated against her marital bequest; that appellant was entitled to $3,000 as compensation for her services as executrix of the estate; and that on the main issue, the marital bequest to her was a pecuniary and not a fractional bequest, that the clear intent of the testator was that his widow would select and receive estate assets in an amount which would equal one-half of the deceased’s adjusted gross estate as defined for federal estate tax purposes, that the value of the assets used to fund that pecuniary bequest be determined at their fair market value on the date or dates of their distribution. The court noted that the will provided the fair market value on the date of distribution be no less than the amount of the pecuniary bequest. The adjusted gross estate was $1,774,003-22 and, therefore, appellant was entitled to one-half ( $887,001.61), no more or less. She had received $393,037.37 independently of the marital bequest which, by the terms of the will, was to be charged to her one-half marital bequest. Thus, a balance of $493,964.24 was due her from the assets of the estate. Any assets selected and distributed to her which exceeded that amount were ordered returned to the estate. The primary issue asserted for reversal is that the court erred in holding that the marital bequest should be funded with assets of the estate by using the fair market value of such assets as of the date or dates of distribution. The paramount rule in construing wills is that we determine the intent of the testator, from the four corners of the will, considering the whole will and in the light of the situation and circumstances surrounding the testator at the time of execution. McLane v. Chancey, Admr., 211 Ark. 280, 200 S.W. 2d 782 (1947). The third paragraph of the will here reads: In the event I am survived by my wife, I give, devise and bequeath to Mary Sue S. Hanna assets of my estate, to be selected by the Executrix of this Will, in an amount which, when added to any other property which is passed or will pass to my wife independently of this bequest and which will qualify as a part of the marital deduction of my estate, will equal one-half of my adjusted gross estate as defined for federal estate tax purposes in the Federal Internal Revenue Code. Only assets that qualify for the marital deduction shall be available for selection by my Executrix and the fulfillment of this bequest. The values used in fulfilling this bequest shall be those values as finally determined for federal estate tax purposes, but the aggregate fair market value at the date or dates of distribution of the property received by my wife must be no less than the amount of this bequest as finally determined for federal estate tax purposes. The appellant asserts this is not a true pecuniary bequest, but a “minimum worth” pecuniary formula provision and, thus, the clear intent of the testator was that, in fulfilling the marital bequest, the property distributed to satisfy the bequest should be valued as of the date of its valuation for federal estate tax purposes. Therefore, apel-lant should benefit from any appreciation of the assets, selected by her, up to the date of distribution. We disagree. This is clearly a true pecuniary bequest. Here, the preresiduary marital bequest in the will provided for the funding of the marital bequest with assets “in an amount which ... will equal one-half of my adjusted gross estate as defined for federal estate tax purposes ...” (Italics supplied.) The words “an amount” are construed to indicate a true pecuniary bequest, or a bequest of a certain fixed amount unaffected by appreciation or depreciation of the assets and not a fractional bequest, although the bequest may be satisfied by assets in kind. In re Estate of Thompson, Deceased, 90 N.J. Super. 350, 217 A. 2d 627 (1966); In re Lewine’s Estate, 286 N.Y.S. 2d 566 (1968); In re Estate of Kantner, 143 A. 2d 243 (1958); and Fed. Est. & Gift Tax Rep. (CCH) par. 2081.09. Here, we note the appellant does not contend this is a fractional share bequest. In a true pecuniary bequest, unless otherwise provided, “the widow is not entitled to share in the appreciation of security values to the date of distribution and does not suffer by reason of any shrinkage thereof.” In re Estate of Thompson, Deceased, supra. The clause in the will stipulating that the fair market value of those assets used to fund the bequest could be no less than the amount of the bequest as determined for federal estate tax purposes merely satisfied the requirement of the Internal Revenue Service, pursuant to Rev. Prac. 64-19. See Ark. Stat. Ann. § 62-2909.1 et seq. (Repl. 1971); Estate of Doyle J. Smith, par. 78, 175 P-H Memo TC; Polasky, Marital Deduction Formula Clauses in Estate Planning — Estate and Income Tax Considerations, 63 Mich. L. Rev. 809 (1965). It appears that the I.R.S. clearly warns that a marital bequest does not qualify as a marital deduction when the bequest is funded with estate properties which have a fair market value on the date or dates of distribution of less than the amount which was deducted for federal estate tax purposes. Thus, depreciated assets cannot be used to fund such a bequest to give the estate the full benefit of the marital deduction while the estate of the surviving spouse is not increased by the full amount. Here, the testator used language in his will which indicates a typical pecuniary type formula for the fixed amount of a gift in order to accomplish the exact maximum marital deduction — no more and no less. It is apparent from a reading of the above quoted provision that the testator intended to take full advantage of the federal estate tax marital deduction of one-half to the surviving spouse, by providing that any assets passing to her independently of the bequest, i.e., by operation of law, be deducted from the amount of the assets so that the total amount not exceed one-half of his adjusted gross, estate. Here is evidenced a clear intent that the bequest not be overfunded and that federal estate taxes be kept to a minimum. To allow the appellant to receive the appreciation accruing to those assets she selected to fund the bequest would be to allow an amount in excess of the pecuniary bequest of one-half the estate. This would result in overfunding the bequest and increased tax liability. Williams, Overqualification of Marital Deduction Due to Joint Ownership and Insurance, 21 Ark. L Rev. 23 (1967-68). Furthermore, here the testator made an additional or backup provision for his widow as primary beneficiary in the trust by providing her with funds from the trust income which might become necessary to maintain her needs and standard of living. We find the probate judge correctly held that the bequest should not exceed one-half of the amount of the estate as valued for federal estate tax purposes and any excess due to appreciation of those assets (as of the date of distribution) selected by her should be returned to the trustee. Next, it is urged that the court erred in finding the income earned by the estate during its administration should be allocated to the residuary beneficiaries. We find no error. This matter is covered by Ark. Stat. Ann. § 58-605 (b) (Repl. 1971), as the probate judge held. That statute provides in pertinent part: (b) Unless the will otherwise provides, income from the assets of a decedent’s estate after the death of the testator and before distribution ... shall be ... distributed as follows: (1) to specific legatees and devisees, the income from the property bequeathed or devised to them respectively... (2) to all other legatees and devisees, except legatees of pecuniary bequests not in trust, the balance of the income ... in proportion to their respective interests in the undistributed assets of the estate computed at times of distribution on the basis of inventory value. (Italics supplied.) Here, the will provided for a pecuniary bequest to appellant, as previously discussed; no provision was made for the income to be distributed to the widow. Therefore, the language of the above statute controls. Appellant also contends that the probate judge erred in determining that the appellant was entitled to only @3,000 as compensation for her services as executrix, rather than the statutory maximum, which appellant computes as being in excess of @49,000. Ark. Stat. Ann. § 62-2208 (Supp. 1981). That statute also provides: (a) The personal representative shall be allowed such compensation for his services when and as earned, as the court shall deem just and reasonable ... Here, the appellant has listed numerous pleadings, orders, and matters filed in the administration of the estate to justify her claim for services as executrix. This is a sizeable estate and no doubt much effort has been required in administering it. There was no testimony taken at the hearing as to the issue of appellant’s compensation. Appellant, 87 years of age, was unable to attend this hearing due to her health. It appears that the work was done largely by her brother, who was allowed @500 per month by the court, as her assistant, and her accountant and her attorney. In the circumstances, we find no abuse of discretion by the trial court as to the award. Torian et al v. Smith, 263 Ark. 304, 564 S.W. 2d 521 (1978). The final point is that the judge erred in determining that the @750 per month paid appellant during the administration of the estate should be charged against her marital deduction bequest provided for in the will. Appellant relies on Ark. Stat. Ann. § 62-2016 (d) (Repl. 1971), which provides that on appeal from an order of distribution, all prior appealable orders to which written objections were filed within 60 days after rendered shall be reviewed, urging no written objection was filed within 60 days of the order. We do not find this statute to be controlling here. The petition seeking the monthly support payments acknowledges that the will makes no provision for a distribution to her from the income of the estate. Appellant had asked that $750 per month from the income of the estate be paid to her “to be charged against the bequest made to her in said will.” The ex parte order stated the requested payment should be distributed to appellant during the administration of the estate; however, such payments should ultimately be “charged against” her bequest. This is what the probate judge has ordered. Also, as the court found, there was no showing that the appellant needed the money to maintain her standard of living. To the contrary, she did not need it. It appears she has considerable personal wealth in her own right.' Affirmed. Purtle, J., dissents. ", "ocr": true, "opinion_id": 7821864 }, { "author_str": "Purtle", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " John I. Purtle, Justice, dissenting. From the four corners of the testator’s will I perceive a husband who wanted to provide for his widow above all other things. He wanted to take full advantage of the Internal Revenue Code as it related to the marital deduction but he wanted to provide for his wife above all. It was for this reason he inserted in his will a provision which would guarantee her an amount equal to one-half of the gross estate as valued for federal estate tax purposes. This would prevent her from losing if the assets reduced in value before distribution. Additional evidence that the testator placed the welfare of his wife above taxes or son or anything else is the inclusion of the provision that she receive as much income from the residual trust estate as she needed to maintain her needs and standard of living. It is my opinion the testator meant exactly what he said when he stated: ... I give, devise and bequeath to Mary Sue S. Hanna assets of my estate, to be selected by the Executrix of this Will, in an amount ... If he had in mind a pecuniary bequest, he would simply have said, “I give her X dollars” or “half of my estate will be sold and the proceeds given to my wife.” Instead, he gave her a fractional gift of his estate by allowing her to select from the assets of the estate items in an amount equal to one-half of the adjusted gross estate. There is no doubt in my mind that the court has thwarted the will and intent of the testator in denying the widow the right to select assets as provided in the will. She is in reality being awarded less than one-half of the estate because the estate produced income and appreciated in value and this increase is being placed in the remaining part of the estate. The holding of the majority declares this bequest to be a pecuniary legacy and therefore subjects it to capital gains tax. No such tax would apply if the bequest were held to be a fractional one. In re Estate of Walker P. Inman, 22 Misc. 2d 573, 196 N.Y.S. 2d 369 (1959), the same argument was made as is presented by appellees in the present case. The words in the Inman will were very near the same as those used in the present case. The seventh article in the Inman will set up a marital trust for the widow in language as follows: An amount which shall equal one-half (1/2) in value of my adjusted gross estate, as that term is defined in Section 812(e)(2) of the United States Internal Revenue Code, as amended, 26 U.S.C.A. § 812 (e) (2), said one-half (1/2) to be reduced, however, by the aggregate ... passing ... to my said wife otherwise than by the terms of this article. The foregoing language is almost identical to the language in the case before us. In Inman the guardian for a minor son protested the distribution of assets in kind to the widow on the grounds that the assets had greatly appreciated in value since the evaluation for federal estate tax purposes was made. The court overruled the protest and allowed the assignment of assets to the widow to stand. Therefore, this same wording has clearly been held to be a fractional bequest rather than a pecuniary one. There is a comprehensive annotation of “specific percent” or “proportion” of estate or property in 87 ALR 3d 605. A large percent of the cases analyzed in this annotation are worded almost identically to the will before us. There seems to be very little argument that such bequest is fractional or percentage rather than pecuniary or dollars and cents. I will not burden this dissent with the many cases reported in the above annotation. The same question before us was presented in In re Penney’s Will, 43 Misc. 2d 517, 251 N.Y.S. 2d 490 (1964), wherein it was said: Respondents herein have taken the position that the language used in the will is in the nature of a pecuniary bequest, and therefore not subject to appreciation subsequent to the estate tax evaluation; that the gift was capable of exact computation when the adjusted gross estate was determined and is consequently a legacy of a fixed amount. This is the argument made by the appellees in the.case before us. The wording of the bequest in Penney was essentially the same as in the case before us. In Penney the surviving spouse same was in the case before us. In Penney’s the surviving same as in the case before us. In Penney’s the surviving spouse transferred to himself shares of the value of one-half of the adjusted gross estate, less the amount passing outside the will. The appellate court decided the language was ambiguous and looked outside the will to determine the intent of the testatrix. The court finally approved the treatment of the bequest as a fractional one in quoting from another case which stated: The results indicate a constructional preference for the percentage or fractional type of ‘marital deduction trust’. The court then approved the distribution in kind thus allowing the widower to participate in the appreciated value of the estate. The wording of the Penney will was in part as follows: (a) One-half (1/2) of the value of my adjusted gross estate (as defined in the United States Internal Revenue Code), and as finally determined for Federal estate tax purposes, less (b) The value of all interests in property, if any, which pass or have passed ... otherwise than under this will... The Penney language is by far more similar to a pecuniary bequest than the one in the present case which specifically allows the widow to select .. assets of my estate, to be selected ... in an amount which, when added to any other property which is passed or will pass to my wife independently of this bequest ... which will equal one-half of my adjusted gross estate as defined for federal estate tax purposes in the Federal Internal Revenue Code. Only assets that qualify for the marital deduction shall be available for selection ... fulfillment of this bequest.” The case which I think is the most clear and simple and presents exactly the same problem as we face is that of In re Nicolai’s Estate, 373 P. 2d 967 (Ore. 1962). The Oregon Supreme Court sitting in banc unanimously held the bequest to be a fractional interest of the estate. The exact words of the bequest were as follows: I give and bequeath to my wife, ETHEL NICOLAI, if she survives me, a portion of my estate equal in value to the maximum marital deduction allowable in the determination of the federal estate tax upon my estate, less the value of any property which passed or is deemed to have passed to my wife under other provisions of this will or otherwise. ... I authorize and empower my executors in their discretion to select the property to be transferred and delivered to my wife in accordance with this paragraph. ... This case was a contest between a widow and her children upon the interpretation of the foregoing marital trust bequest. The court held that it was the intention of the testator to create a fractional interest rather than a pecuniary legacy. In the many cases I have examined where the wording of the legacy was essentially the same as that in question here, the large majority of the cases have held the language to constitute a fractional interest of the estate. The question becomes rather critical when the assets of the estate appreciate in value during the time the estate is under probation. In cases where the legacy is held to be pecuniary the widow or widower is not allowed to share in the appreciation of the assets. On the other hand, if it is held to be a fractional interest, the surviving spouse will receive a proportionate share of the increase in value. This would also hold true for the income produced by the estate during probate. It appears to me that the majority opinion is erroneously based upon the premise that the testator preferred to save taxes over taking care of his wife. As I see it, all four corners of the will point to the testator having in mind to provide for his wife first and then take advantage of any tax provisions in the Internal Revenue Code. In my opinion, William Herbert Hanna desired most of all that his wife receive enough income to continue living in the manner to which she was accustomed and in so doing he felt that she should receive a fractional interest of his estate. Any other interpretation would be to defeat the intent of the decedent. ", "ocr": true, "opinion_id": 7821865 } ]

[ "279 Ark. 62", "648 S.W.2d 487" ]

[ { "author_str": "Adkisson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Richard B. Adkisson, Chief Justice. The Saline County Probate Court refused to allow appellant, Bonnie Sue Pierce, to revoke her consent to the adoption of her child by appellees, Bobby Joe Pierce and Phyllis Kay Pierce. On appeal we affirm. The facts are not in dispute. The child was born on September 8, 1978. On May 11, 1981, appellant signed a “consent to adoption and relinquishment of parent and child relationship” and on that same day appellees, who are the brother and sister-in-law of appellant, took custody of the child. On June 19, 1981, the probate court approved appellees’ petition to adopt and entered an interlocutory order to that effect. On September 17,1981, appellant filed a motion to revoke her consent, alleging that the adoption was not final under Ark. Stat. Ann. § 56-213 (Supp. 1981) because the child had not lived in the adoptive home for six months. On January 22, 1982, the probate court denied appellant’s attempted revocation of consent to adoption. We considered the question of whether a natural mother can withdraw her consent to the adoption of her child after an interlocutory decree had been entered but before a final decree has been entered in the recent case of McCluskey v. Kerlen, 278 Ark. 338, 645 S.W.2d 948 (1983). Under McCluskey, it is settled that consent to adoption can be withdrawn after an interlocutory order only upon a proper showing of fraud, duress, or intimidation. Here the only reason appellant gave in her motion for wanting to revoke her consent was that the adoption was not final. Appellant neither pled nor proffered any evidence of fraud, duress, or intimidation at the hearing. Under these circumstances the probate court did not err in denying appellant’s motion to revoke her consent. Affirmed. ", "ocr": true, "opinion_id": 7822342 } ]

[ "282 Ark. 207", "666 S.W.2d 703" ]

[ { "author_str": "Hays", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Steele Hays, Justice. This is an appeal of a claim for unemployment benefits under the Arkansas Employment Security Law. The Appeal Tribunal denied the claim under Section 5 (a) of the Act [Ark. Stat. Ann. § 81-1106 (a)], which disqualifies a claimant who voluntarily leaves employment without good cause connected with the work. The Appeal Tribunal found that the claimant, who was receiving benefits from earlier employment, did not have good cause to quit subsequent part-time work at Sears Portrait Studio. The Board of Review affirmed. The claimant was represented by retained counsel both before the Board of Review and on appeal to the Court of Appeals, where her attorney prepared and filed an abstract and brief as in non-ESD cases. The Court of Appeals affirmed the Board of Review on the finding that claimant had quit her job without good cause, but reversed and remanded the case for an award of benefits on an issue the Director of Labor submits was not raised by either side at any stage in the proceedings. We granted the Director’s petition for review to determine whether the point was presented and, hence, properly decided by the Court of Appeals. After deciding the first issue, i.e. whether the Board of Review had substantial evidence to find the claimant did not have good cause to leave her j ob at Sears Studio, the Court of Appeals considered what it termed a “second issue raised by the appeal,” i.e. whether an individual who is already receiving benefits attributable to prior full-time employment becomes disqualified because he or she voluntarily quits after-acquired, part-time work. The first issue is dealt with under Ark. Stat. Ann. § 81-1106 (a), and is a common point of dispute in ESD cases, but the second issue, which the Court of Appeals recognized as one of first impression in Arkansas, involves other sections of the act, § 81 -1104 (c) and § 81-1105 (m), dealing with the effect of part-time work on entitlement to benefits. We have no hesitancy in declaring that the second issue is not raised in any discernible fashion in the brief of either party, nor do we find anything in the abstract or, for that matter, in the record itself which suggests that this question was considered or argued by the parties either below or on appeal. The only issue discussed in the briefs is whether the claimant had good cause to quit her part-time work. We are left to conclude that the second issue, one we think may have far reaching consequences, has not been properly presented and should not have been decided without being fully developed. Little Rock Road Machinery Co. v. Jackson County, 233 Ark. 53, 342 S.W.2d 407 (1961); Palmer v. Cline, 254 Ark. 393, 494 S.W.2d 112 (1973); First Pyramid Life Insurance Company of America v. Reed, et al, 247 Ark. 1003, 449 S.W.2d 178 (1970). In City of Ft. Smith v. Daniels, Director of Labor, 269 Ark. 617, 599 S.W.2d 750 (Ark. App. 1980) the Court of Appeals rejected arguments raised for the first time in the Court of Appeals; It is settled law that an appellate court will not consider questions raised for the first time on appeal. Issues are resolved upon a record that is properly constructed at the trial level; and the appellant has the duty, unless the appellee deems the transcript deficient, to tender a record containing all of the evidence relevant to his case. (Citations omitted.) Nor do we think the two issues are essentially one, so that a claimant merely by arguing that there was good cause to leave part-time employment raises the contention, entirely by implication, that the legislature had in mind only “full-time work” when it drafted § 81-1106 (a) to state that one who “voluntarily and without good cause connected with the work, left his last work” (our italics) is disqualified for benefits. The Court of Appeals has cited decisions from other jurisdictions applying that construction where similar wording is found in employment security statutes1. However, we make no attempt to decide whether that interpretation is sound because it is certain the issue was not considered even remotely by the Board of Review or by the parties. The question should not be decided apart from the traditional methods of litigation, but by adversary proceedings at the trial and appellate levels after fair notice of the issues raised. It would be fundamentally unfair to one litigant to reverse and dispose of a case on appeal on arguments which have not been developed in the lower court, nor argued and briefed in the appellate court. Grumlin v. Gray, 246 Ark. 635, 439 S.W.2d 290 (1969); Walker v. Eldridge, 219 Ark. 594, 243 S.W.2d 638 (1951). Reversed. Purtle, J., dissents. Tomlin v. California Unemployment Ins. Appeals, 82 Cal. App. 3d 642, 147 Cal. Rptr. 403 (1978); Gilbert v. Hanlon, 214 Neb. 676, 335 N.W.2d 548 (1983), and Unemployment Comp. Board of Review v. Fabric, 24 Pa. Commw. 238, 354 A.2d 905 (1976). ", "ocr": true, "opinion_id": 7822605 }, { "author_str": "Purtle", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " John I. Purtle, Justice, dissenting. Appellee was receiving extended unemployment benefits when she accepted a part-time job with Sears Portrait Studio. The part-time job did not disqualify her from continuing to receive unemployment benefits except for a reduction in benefits for two weeks in which she worked more hours than usual. She could receive up to $38.00 from earned wages before her benefits would be reduced. Her hours had been reduced to seven hours a week for which she was paid $20.65. The hours were arranged to require her to work three hours on Monday and two hours on each of two evenings. She lived ten miles from work and had to hire a babysitter the two nights she worked. In terminating her employment she stated she was not getting enough hours to pay for driving to and from work and paying the babysitter. Had she continued her employment at seven hours a week she would have still been entitled to her full unemployment benefits. The sole reason she was denied continued benefits was because she voluntarily quit the part-time job. In her petition to the Appeals Tribunal she said: “I am appealing this decision because I feel I had just cause to quitas it was costing me more money to drive to this part-time job than I was making.” The question is whether the issue of eligibility was properly considered by the Court of Appeals. I think the issue is so intricately interwoven with the disqualification issue that the two cannot be separated. The claimant’s reason for appealing was that she had been disqualified from receiving continued benefits. Had the Division allowed her to continue receiving benefits, as it had during her employment at Sears, she obviously would not have appealed. Her only complaint and the reason for her appeal is the fact that she was ruled ineligible for unemployment benefits because she voluntarily quit her last job. Although she claimed justification for leaving the job, the real issue to her was denial of benefits. It would have made no difference to her whether she had just cause to quit the j ob or not if she had continued to receive unemployment compensation. Therefore, I think the Court of Appeals was correct in deciding the issue of continued benefits. Other jurisdictions considering this question have held that voluntarily leaving a part-time job without just cause related to the work is not sufficient cause to disqualify an employee from receiving benefits which were accrued by reason of prior full-time employment. Tomlin v. California Unemployment Ins. Appeals, 82 Cal. App. 3d 642, 147 Cal. Rptr. 403 (1978); Gilbert v. Hanlon, 214 Neb. 676, 335 N.W.2d 548 (1983); Unemployment Compensation Board of Review v. Fabric, 24 Pa. C. 238, 354 A.2d 905 (1976); and Neese v. Sizzler Family Steak House, 404 So. 2d 371 (Fla. 1981). If benefits are denied by reason of leaving part-time employment, it is likely to discourage unemployed persons from accepting such jobs. Such employment should be encouraged in order to reduce unemployment and preserve the funds from which benefits are paid. Arkansas courts have held that voluntarily leaving full-time employment without j ust cause connected with the employment is not necessarily disqualifying if the reason for leaving is a justifiable personal emergency or illness. Morse v. Daniels, Director, 271 Ark. 402, 609 S.W.2d 80 (Ark. App. 1980); Graham v. Daniels, 269 Ark. 774, 601 S.W.2d 229 (Ark. App. 1980). The Act is to be construed liberally in order to accomplish its beneficent purpose. Graham v. Daniels, supra. It seems so wasteful to refuse to rule on the real subject of this appeal on the pretext that it was not raised below. I agree with the Court of Appeals where it held that when an employee voluntarily quits part-time work, which does not disqualify him from receiving unemployment benefits, he is not disqualified within the meaning of section 5 (a) from receiving benefits based upon prior qualifying employmen t. In addition to all I have said I believe the appellant quit her job for good cause. It is obvious to me that an employee or anyone else who consistently loses money on a job is not too bright if he continues such work without promise or hope of betterment. ", "ocr": true, "opinion_id": 7822606 } ]

[ "296 Ark. 156", "752 S.W.2d 277" ]

[ { "author_str": "Glaze", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Tom Glaze, Justice. This appeal originated in a declaratory action filed on March 10, 1986, by plaintiffs, Sylvia Matthews, Loretta O’Byrne and Olinda Nimietz, against Superior Marketing Research Corp. (Superior), Don Miller, Robert Holcomb and James Dooley. The plaintiffs’ original complaint alleged that Miller, Holcomb and Dooley (referred sometimes herein as inventors) invented a method for cooling food and beverages within a container. Plaintiffs further alleged the inventors had applied for patent rights and, by agreement, the inventors assigned those rights to Superior in return for shares of stock in that company. Plaintiffs claimed Miller had solicited them as investors, and by agreement, they were to receive Superior stock in exchange for the monies the plaintiffs paid and invested to assist the company in marketing the new invention.1 Mrs. Matthews, it was alleged, received a certificate for 500,000 shares of Superior common stock, but neither O’Byrne nor Nimietz received any certificates evidencing their shares. All three plaintiffs asserted that their rights as stockholders were denied by Superior, and requested that the chancery court declare and enforce their rights. On April 17,1986, plaintiffs amended their complaint, and among other things, asked they be declared owners of an undivided interest in the U.S. patent application to which Superior claimed sole ownership. On April 29, 1986, Superior moved to dismiss plaintiffs’ complaint as amended, arguing the trial court had no in personam jurisdiction or venue of the action, and also claiming that the action should have been filed in circuit court rather than in chancery. At a hearing on October 20, 1987, the chancellor denied Superior’s motion, stating the court had jurisdiction and venue and specifically found that plaintiffs’ declaratory relief was based upon an underlying cause of action which included both fraud and specific performance. On February 3, 1988, Superior lodged the trial court’s record with this court and, at the same time, filed its petition for writ of prohibition claiming that the chancellor’s October 20, 1987 order, denying Superior’s motion to dismiss, was erroneous. However, respondent states this court does not have the entire record, and in his brief, respondent supplemented the abstract of pleadings with a plaintiffs’ motion for leave to amend (purportedly filed sometime after the trial court’s October 20,1987 hearing), an order granting that motion and a pleading captioned “Second Amended Complaint,” which apparently was filed on January 27, 1988.2 Because of the incomplete state of the record before us, we simply are unable to reach all the arguments made by Superior, especially since its contentions largely rely upon the allegations contained in plaintiffs’ amended complaint as those claims stood on October 20, 1987, when the chancellor denied Superior’s motion to dismiss. Superior argues the second amended complaint should not be before this court, but gives no compelling reason as to why. Superior concedes it knew of, and objected to, the plaintiffs’ motion to file the second amended complaint; it claims, however, that the amended complaint was erroneously entered without a hearing. Of course, if that were so, Superior’s remedy would have been to request the chancellor to correct such an error rather than argue in this prohibition action that the second amended complaint should not be a part of the trial court’s record. A brief recitation of Superior’s arguments will readily reveal why this court is unable to decide the venue question raised in this action. For example, Superior asserts the plaintiffs’ suit below was one for specific performance and that the applicable venue statute is Ark. Code Ann. § 1.6-60-116 (1987), which requires the action to be filed in a county where one of the defendants resides or is summoned. Such a requirement, Superior argues, would exclude Miller County since none of the defendants either reside or were served there. Superior further argues that although Ark. Code Ann. § 16-60-113(b) provides for fraud actions to be brought in the county where any one plaintiff resides or where one or more of the acts of fraud were perpetrated, it claims the plaintiffs’ action could not be based in fraud because the plaintiffs failed to allege the necessary elements of fraud. Contrary to Superior’s argument, we note that the plaintiffs’ second amended complaint does reflect specific and particular allegations of fraud and deceit; that complaint also adds claims for tortious interference of property rights, contract and for an accounting. In support of his determination that venue lies in Miller County under § 16-60-113(b), respondent points out that one of the plaintiffs, Mrs. Matthews, resides in Miller County and that some of the alleged fraudulent acts were perpetrated in that county. Superior counters by arguing that even if the plaintiffs’ complaint correctly alleged fraud and that was the basis of their action, fraud is a law action, not one in equity. In sum, Superior claims the plaintiffs should have filed their action in circuit court. Such an argument is inconsequential since, even assuming Superior is correct in its argument, Superior’s remedy is not one for a writ of prohibition, but instead must be corrected by a motion to transfer the case to the Miller County Circuit Court. See First Arkansas Leasing Corp. v. Munson, 282 Ark. 359, 668 S.W.2d 543 (1984). For the reasons given above, we must deny Superior’s petition for writ of prohibition. Holt, C.J., not participating. Plaintiffs also alleged facts noting the inventors’ interest in forming a new company named Fast Chill, which was to market the invention. That company apparently was never formed, but plaintiffs alleged the inventors’ early contacts with them involved the possible exchange of stock of that proposed company for the investment monies given by plaintiffs. Mrs. Matthews, in fact, was alleged to have paid $ 12,500 for 500,000 shares of Fast Chill, but later was given a subscription agreement for 500,000 shares of Superior stock in recognition of the rights she had acquired in Fast Chill. Plaintiffs filed a response and brief in this court on behalf of the respondent trial judge. ", "ocr": true, "opinion_id": 7823938 } ]

[ "305 Ark. 542", "809 S.W.2d 374" ]

[ { "author_str": "Hays", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Steele Hays, Justice. Billy Ballew was convicted in circuit court of driving while intoxicated. He contends on appeal that the trial court should have ruled that he was entitled to a chemical analysis of his blood, breath, or urine at no expense to him. We reject the argument and affirm the judgment. Ballew was arrested on February 21, 1990, by Deputy Sheriff A1 Nelson. Officer Nelson testified that he saw a 1983 Chevrolet pickup truck ignore a stop sign and weave back and forth over the center line of the highway. After stopping the vehicle Nelson smelled alcohol and described the driver, Ballew, as too inebriated to perform a field sobriety test and incapable of walking without being supported. At the sheriff’s office Ballew declared he would not submit to any type of test and Nelson informed him that he was in luck because the breathalyzer was not operating. Nelson advised Ballew that he had the right to have a blood test taken at his own expense and that too was refused. Prior to trial Ballew moved to suppress any testimony by Nelson regarding Ballew’s alleged intoxication, arguing that Ark. Code Ann. § 5-65-203 (Supp. 1989) requires that the arresting officer offer a chemical analysis of the blood, breath, urine or other bodily substance of the accused at public expense. That motion was denied and appellant assigns error to the ruling. Appellant relies entirely on the language of the Arkansas implied consent law, [Ark. Code Ann. § 5-65-201—207 (Supp. 1989)], citing such phrases as, a chemical test or tests “shall be administered,” and the law enforcement agency “shall be responsible for all expenses incurred in conducting the tests.” We fully agree that under the statute if a particular law enforcement agency designates that chemical tests will be administered, the agency is responsible for paying any expenses involved. But the statute is equally clear that if it is the accused who requests the tests (in addition to those taken at the behest of the agency), he shall bear the expense. Nowhere in the act do we find the slightest implication that a law enforcement agency which does not intend to rely on chemical analysis of bodily substance, must nevertheless provide such analysis for an accused. In Grayson v. State, 30 Ark. App. 105, 783 S.W.2d 75 (1990), the Court of Appeals rejected appellant’s argument that he was entitled to a blood test at public expense, though no breathalyzer was administered because the machine was not functioning. The Grayson court noted that § 5-65-204(e)(2) renders the chemical test results of the agency inadmissible if the person tested is not advised of his right to an additional test. There is no proof here that Ballew requested such tests or would have allowed them to be administered. The proof, indeed, was to the contrary. If the appellant’s position were sustained, it would remove the right of a law enforcement agency to rely on other relevant evidence of intoxication, notwithstanding an express provision in the statute permitting the use of such evidence: § 5-65-206(2)(b) (Supp. 1989) reads: The foregoing provisions shall not be construed as limiting the introduction of any other relevant evidence bearing upon the question whether or not the defendant was intoxicated. The implied consent law was enacted primarily to protect the public from the drinking driver by adopting a balanced procedure for testing bodily substance. Numerous decisions construe similar statutory schemes as permissive rather than mandatory and the wording of our statutes is consonant with those cases. See State v. Woolbright, 57 Wash. App. 697, 789 P.2d 815 (1990); Montano v. Superior Court, 149 Ariz. 385, 719 P.2d 271 (1986); Kettering v. Baker, 42 Ohio St.2d 351, 328 N.E.2d 805 (1975); Hammer v. Town of Jackson, 524 P.2d 884 (Wyo. 1974). Affirmed. ", "ocr": true, "opinion_id": 7824820 } ]

[ "316 Ark. 644", "873 S.W.2d 551" ]

[ { "author_str": "Glaze", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Tom Glaze, Justice. On May 6, 1991, the appellant, Ann Rodgers, was a business invitee of the appellee’s La Quinta Motor Inn located on Shackleford Road in Little Rock. During the night and while in bed, Rodgers felt pain in her lower leg. Rodgers was treated and later underwent surgery for her injury which she was told was probably due to a bite from a brown recluse spider. No spider was ever found. On August 10, 1992, Rodgers filed suit against La Quinta, alleging the motel breached its duty of ordinary care in properly treating “the hotel rooms for possible spiders that could injure overnight patrons.” On April 19, 1993, La Quinta filed a motion for summary judgment, alleging that it used reasonable care and no duty to Rodgers was breached. In addition to a supporting brief, La Quinta’s motion was accompanied by invoices from Jim Jamison Pest Control showing bimonthly spraying and “specimen labels” for several insecticides used by Jamison’s pest control company. To support her position against the motion for summary judgment, Rodgers submitted an affidavit from Thomas Rasul, owner of M & N Pest Control, stating that the information submitted by La Quinta did not indicate adequate applications of insecticide to control spiders. Following a hearing on La Quinta’s motion for summary judgment on July 23, 1993, the trial court granted the motion and dismissed the case with prejudice. Rodgers appeals from that order. On appeal, Rodgers argues the trial court erred in granting the summary judgment because a disputed fact existed concerning whether her room was sprayed by the pest control company. Rodgers points out that none of the invoices indicated what rooms were sprayed and none indicated that her room was specifically sprayed. Thus, Rodgers argues this omission raises a question of fact as to whether La Quinta breached its duty of care to her as an invitee to keep her room in a reasonably safe condition. On the other hand, La Quinta argues that Rodgers failed to prove that it had the required knowledge that brown recluse spiders were present on the premises. For support, La Quinta cites Kay v. Kay, 306 Ark. 322, 812 S.W.2d 685 (1991), wherein this court adopted a California rule that the owner or occupier of a private residence does not have a duty to protect or prevent bites from harmful insects where (1) it is not generally known that the specific insect is indigenous to the area; (2) the homeowner has no knowledge a specific harmful insect is prevalent in the area where his residence is located; (3) the homeowner has never seen the specific type of harmful insect either outside or inside his home; and (4) neither the homeowner nor the injured guest has seen the specific insect that bit the guest either before or after the bite occurred. Rodgers attempts to distinguish our holding in Kay by arguing that a private residence was involved there, but that here her case involves a business. We find this distinction without merit since in both cases, the plaintiffs were business invitees, and the duty of care owed was the same in each case. Under summary judgment, it is appropriate to sustain such a grant if the record demonstrates that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Tullock v. Eck, 311 Ark. 564, 785 S.W.2d 31 (1993). Our holding in Kay is controlling here, and ■ in applying those elements to the case at bar, the trial court did not err in granting summary judgment. Here, Rodgers failed to present evidence that La Quinta knew the brown recluse spider was prevalent in the area where the motor inn is located, and that La Quinta or its employees had ever seen a brown recluse spider on the premises. Further, Rodgers failed to show that either she or La Quinta employees ever saw the spider that bit her. In addition, as was the case in Kay, Rodgers was unable to show that the spider which bit her was in her motel room as the result of La Quinta’s negligence or whether it was brought into the room by her. For the foregoing reasons, we affirm. ", "ocr": true, "opinion_id": 7825535 } ]

[ "322 Ark. 223", "908 S.W.2d 90" ]

[ { "author_str": "Jesson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Bradley D. Jesson, Chief Justice. We are asked to review an order granting summary judgment in favor of the Arkansas Securities Commissioner. The chancellor ruled that the Commissioner was, as a matter of law, entitled to an injunction prohibiting the appellants from transacting business as a mortgage loan company or loan broker in the State of Arkansas. We find no error and affirm. In late 1991 and early 1992, appellant Hicks began formation of Allegis Mortgage Company. He made inquiries at the Arkansas Securities Department (“the Department”) regarding registration and exemption requirements. He was given a copy of the Mortgage Loan Company and Loan Broker Act, which is codified at Ark. Code Ann. §§ 23-39-101 to 309 (Repl. 1994). The Act provides that a mortgage loan company wishing to do business in Arkansas must complete an application for registration containing, among other things, the applicant’s audited financial statements, must post a $25,000.00 surety bond, and must have a net worth of not less than $25,000.00. See Ark. Code Ann. §§ 23-39-301 to 305 (Repl. 1994). On January 27, 1992, Hicks sent a letter to the Department claiming an exemption from the Act’s requirements. He based this claim on the fact that, as of January 23, 1992, Allegis had received approval from the Department of Veterans Affairs (“the VA”) to act as a prior approval lender on VA loans. Indeed, Ark. Code Ann. § 23-39-306(a)(4) (Repl. 1994) provides that a company shall be so exempt if the company is subject to licensing, supervision, or auditing by the VA. Nevertheless, the Department denied the exemption, noting that an auditor’s report submitted by Hicks showed Allegis to be technically insolvent. At this point, a flurry of correspondence began among Hicks, the Department, and the VA. On February 3, 1992, the VA withdrew its approval of Allegis based on “misrepresentation of your status as a creditable mortgage corporation.” A few days earlier, the VA had received information that hot check charges had been filed against Hicks and that Hicks had failed to pay for office supplies. Next, the Department, citing the company’s insolvency, ordered Allegis and Hicks on February 7, 1992, to cease and desist from any loan mortgage or brokering activity. Hicks immediately contacted both the Department and the VA in an attempt to explain the company’s situation and to ask for reconsideration. However, the Department maintained its position. The VA (by this time having received a copy of the Department’s cease and desist order) refused to reinstate its approval. The net effect of these events is that, other than the brief period of VA approval between January 23 and February 3, 1992, Hicks and Allegis were not authorized by any regulatory entity to conduct mortgage loan or brokerage business in Arkansas. On April 14, 1992, the Commissioner filed suit in Pulaski County Chancery Court seeking an injunction against Allegis and Hicks. The petition alleged that the company was engaging in fraudulent business practices, was insolvent, and was doing business without a proper registration or exemption filing.1 Numerous documents were attached to the petition in which customers complained that they had paid various fees but had not received loans. Documents were also attached that showed that several appraisers and a credit bureau that had performed services for Allegis had not been paid. The chancellor issued a temporary restraining order (TRO) on April 14, 1992, the same day the petition for injunctive relief was filed. The appellants moved to dissolve the TRO, denying insolvency and fraudulent business practices, and stating that, because Allegis was a VA approved lender, it was exempt from the registration, bond, and net worth requirements of state law. The TRO was temporarily lifted to allow the appellants to close three loans, but it otherwise remained in effect. In February of 1994, the Commissioner apparently discovered for the first time that the appellants’ VA approval had been revoked on February 3, 1992. An amended petition for a permanent injunction was filed, containing the new allegation that the VA had withdrawn its approval. The appellants filed no response to this petition. On September 23, 1994, the Commissioner filed his motion for summary judgment, which is the subject of this appeal. The motion set out three reasons why the Commissioner was entitled to injunctive relief as a matter of law: 1) since the appellants never answered the amended complaint, the averments therein were taken as admitted; 2) since VA approval had been revoked, the appellants were no longer exempt from state regulation; and 3) the company was insolvent.2 Ten exhibits were attached to the deposition. Exhibit one was the affidavit of VA loan officer Wilma Graham. Ms. Graham stated that the VA withdrew its approval by letter of February 3, 1992, because it received information that hot check charges had been filed against Hicks. She further stated that the approval had never been reinstated. Exhibits two through six were affidavits of Allegis customers. The customers detailed their transactions with Hicks and Allegis, once again stating that they had paid fees of various kinds but had not received loans. Importantly, the affidavits demonstrated that the business transactions took place between January 20, 1992, and late March of 1992, outside the eleven day “window” of VA approval. The final three exhibits were from appraisers who had performed work for Allegis and had not been paid. In particular, one appraiser stated that he had been paid with a check on which payment was stopped and later by a check written on a closed account. The appellants responded to the motion by denying receipt of the amended complaint, denying that Allegis was insolvent, denying that the VA properly revoked its approval, and claiming that there were issues of fact to be decided. The appellants attached three exhibits to their response. First was the affidavit of Hicks stating that the VA approval was improperly revoked and that the Department had improperly denied the exemption. Second was the deposition of Wilma Graham, in which she stated that there was a possibility, though not a probability, that the VA would have reinstated its approval had it not received a copy of the Department’s cease and desist letter. Third were the exhibits to Ms. Graham’s affidavit, which primarily consisted of the correspondence among the parties in January and February of 1992. A hearing was held on October 31, 1994. The chancellor granted the Commissioner’s motion for summary judgment. He based his ruling not only on the exhibits to the motion, but on the fact that the appellants had failed to respond to the Commissioner’s amended complaint filed February 3, 1994. Without reaching the issue of the appellants’ failure to respond to the amended complaint, we find that the chancellor’s decision to grant summary judgment was correct. The Arkansas Securities Commissioner has been given the duties of general supervision and control over mortgage loan companies and brokers doing business in Arkansas. Ark. Code Ann. § 23-39-201 (Repl. 1994). Pursuant to those duties, the Commissioner may seek injunctive relief against a company whenever it appears that the company is engaging in practices prohibited by the act, or that the assets or capital of the company are impaired, or that the company’s affairs are in an unsafe condition. Ark. Code Ann. § 23-39-202 (Repl. 1994). The exhibits to the Commissioner’s motion show conclusively that the appellants: 1) transacted mortgage loan business during a time when they were not authorized to do so, either by the department or the VA, 2) were not paying their bills and attempted to pay some bills with improper checking procedures, 3) took money from customers and provided no services in return, and 4) appeared, at least under the findings of one audit, to be undercapitalized. The appellants’ response did nothing to rebut the substance of these allegations. In the face of such evidence, the chancellor was correct to conclude that, at the very least, the appellants’ affairs were in an unsafe condition. Therefore, a proper showing was made for the issuance of the injunction. The appellants make several arguments on appeal, none of which have merit. They claim that federal law mandates notice and opportunity for a hearing before VA approval is revoked. See 38 U.S.C. § 3704(d), which provides that, “subject to notice and an opportunity for a hearing,” a lender may be barred from acquiring VA loans. However, the chancellor noted correctly that such an argument should be presented to the VA. In Galloway v. Arkansas State Highway & Transp. Dept., 318 Ark. 303, 885 S.W.2d 17 (1994), we recognized that, in instances such as this one, enforcement of regulations regarding notice and hearings is not the responsibility of the state but of the particular federal agency involved. The appellants also present two constitutional arguments. They claim that the Act violates the due process clause and the supremacy clause of the U.S. Constitution. Not one case or other citation of authority is given in support of these arguments. We will not address arguments unsupported by convincing argument or authority. Galloway, supra. Finally, the appellants direct us to a definition of “loan broker,” which appears at Ark. Code Ann. § 23-39-401(B)(i)(j) (Repl. 1994). Whether this definition is helpful to appellants, or not, it is not applicable here. The cited statute is part of Act 140 of 1993 which, by the terms of its preamble, does not operate to alter any definitions which apply to the Mortgage Loan Company and Loan Broker Act. Affirmed. At this point, the Commissioner was unaware that the VA had withdrawn its approval. At a later hearing, the Commissioner’s counsel explained that the term “insolvency” was being used in a broad sense to include the appellants’ assets being impaired and their affairs in an unsafe condition. ", "ocr": true, "opinion_id": 7825970 } ]

[ "324 Ark. 112", "918 S.W.2d 718" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " PER CURIAM. Appellant Gina Felicia Flemings (Foster), by the Pulaski County Child Support Enforcement Unit, has filed a motion to dismiss the appeal of Darryl A. Littles. The basis for the motion is that Littles did not timely file a notice of appeal; therefore, this Court is without jurisdiction. We deny the motion to dismiss. The order being appealed was entered in Pulaski County Chancery Court on November 14, 1995. On December 8, 1995, appellant Flemings filed a notice of appeal; appellee Littles was served with the notice of appeal on December 13, 1995. Littles filed a document styled “notice of appeal” on December 22, 1995; however, the notice was filed in circuit court. The “notice of appeal” was not filed in chancery court until December 27, 1995. Ms. Flemings contends that if Littles’s appeal is designated a direct appeal, then the notice of appeal was thirteen days late pursuant to Rule 4(a) of the Rules of Appellate Procedure. If Littles’s appeal is designated a cross-appeal, Flemings submits it was filed two days late under Rule 4(a). Rule 4(a) provides that a notice of appeal must be filed within thirty days from entry of the judgment. However, a notice of cross-appeal must only be filed within ten days after receipt of the notice of appeal. Although Litdes’s notice is styled “notice of appeal,” we have recognized that a cross-appeal is an appeal by an appellee who seeks something more than was received in the trial court. Boyle v. A.W.A., Inc., 319 Ark. 390, 892 S.W.2d 242 (1995). Thus, Litdes’s appeal is a cross-appeal, and his notice had to be filed within ten days after December 13, 1995, the date of receipt of Flemings’s notice of appeal. The notice of appeal which Litdes filed on December 22, 1995, was not filed with the clerk of the court that entered the judgment; therefore, it had no effect. See Rossi v. Rossi, 319 Ark. 373, 892 S.W.2d 246 (1995). However, the notice of appeal which was filed December 27, 1995, was timely filed with the clerk of the court that entered the judgment. December 23, 1995, was the tenth day after receipt of Flemings’s notice of appeal, but it was a Saturday. Rule 9 of the Rules of Appellate Procedure provides that whenever the last day for taking action falls on a Saturday, Sunday, or legal holiday, the time for such action shall be extended to the next business day. December 23 was a Saturday, December 24 was a Sunday, and December 25 and 26 were legal holidays; therefore, December 27 was the next business day. Motion denied. ", "ocr": true, "opinion_id": 7826101 } ]

[ "327 Ark. 723", "940 S.W.2d 481" ]

[ { "author_str": "Glaze", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Tom Glaze, Justice. Tamara and David Bankston were divorced on December 27, 1985, and the couple’s two minor daughters were awarded to Tamara. David was ordered to pay Tamara $220 per month child support, plus two-thirds of the health insurance premiums for the children, and reimbursement of one-half of the dental and non-covered medical expenses incurred on the children’s behalf. Over the years, David failed to make payments and accrued arrearages. In October of 1995, Tamara died intestate and Gordon Darr, Jr., was appointed administrator of her estate; in that capacity, Darr brought suit against David to recover the arrears David owed in child support, insurance premiums, and medical expenses. At the time of suit, David had custody of the children. David filed a responsive motion to dismiss Darr’s complaint, alleging Darr had no standing. The chancellor agreed and dismissed Darr’s suit. In reaching his decision, the chancellor relied on Ark. Code Ann. § 9-14-236 (Supp. 1995), which defines a “moving party” who brings suit for child-support arrearages to mean (1) the custodial parent, (2) any person or agency to whom custody of a minor child has been given or relinquished, (3) the minor child through his guardian or next friend, (4) a person for whose benefit the support was ordered, within five years of his or her obtaining majority, or (5) the Child Support Enforcement Office under prescribed circumstances. Because Darr failed to fall within any of these five categories, the chancellor held Darr had no standing. He specifically mentioned that Darr, as administrator of Tamara’s estate “does not equate” with being the children’s guardian under § 9-14-236, and therefore could not enforce any child-support arrearages. The chancellor is mistaken, and accordingly we reverse and remand. Darr correctly submits that, as administrator, he can recover a monetary judgment after the death of one entitled to the judgment. He cites Ark. Code Ann. § 16-65-502 (1987), which provides in pertinent part as follows: (a)(1) If one (1) or more plaintiffs in a judgment or decree dies before the judgment or decree is satisfied or carried into effect, the judgment or decree, if for money or concerning personal property, shall survive to the executors or administrators of the deceased party, and, if concerning real estate, to his heirs or devisees. (2) In each of the preceding cases, execution may be sued out in the name of the surviving plaintiff, for the benefit of himself and legal representatives of the deceased party, or the judgment or decree may be revived in the name of the legal representatives and the surviving plaintiff, and execution may be sued out joindy. This court has recognized the custodial parent’s right to unpaid installments of child support in prior decisions. See Cunningham v. Cunningham, 297 Ark. 377, 761 S.W.2d 938 (1988); Sharum v. Dodson, 264 Ark. 57, 568 S.W.2d 503 (1978).- In addition, the General Assembly has also provided that a decree, containing a provision for child-support payments, shall be a final judgment as to any accrued payment until the time either party moves to set aside, alter, or modify the decree. See Ark. Code Ann. § 9-14-234(b) (Supp. 1995). Under applicable Probate Code provisions, Darr, as appointed representative of Tamara’s estate, was entitled to take possession of all Tamara’s personal property, Ark. Code Ann. § 28-49-101 (a) (1987), and to enforce her estate’s entidement to any existing money or personal property judgment or decree. § 16-65-502. David’s defense rings hollow in suggesting that § 9-14-236 precludes Darr from enforcing any surviving child-support debts David owed Tamara because § 19-14-236 does not specifically fist an administrator as one who can enforce such indebtedness. In support of his argument, David cites only general authority that an unambiguous statute should be applied simply as it is written, and that specific rules in one statute (§ 9-14-236) are given over the general rules in another statute (§ 16-65-502). See Valley Nat’l Bank of Arizona v. Stroud, 289 Ark. 284, 711 S.W.2d 785 (1986). Arkansas law is well settled that it is this court’s duty, if possible, to reconcile our state’s statutes to make them consistent, harmonious, and sensible. See Estate of Epperson, 284 Ark. 35, 679 S.W.2d 792 (1984). In the instant case, David offers no citation of authority or convincing argument specifying why § 9-14-236 cannot be read as being harmonious with Arkansas’s applicable probate provisions. Instead, David offers a construction of § 9-14-236 which inexplicably denudes the plain language and purpose of Arkansas’s survival-of-judgment statute, § 16-65-502, and strips an administrator from satisfying a deceased party’s decree where it involves an arrearage in child-support payments. In fact, if we were to accept David’s argument, no one in this case could presently enforce Tamara’s right to accrued child-support payments except David, himself, since, as guardian, he is the only one authorized under § 9-14-236 to collect child-support arrearages. Obviously, such an interpretation would result in an absurdity and completely ignores the compatible purpose served by Arkansas’s survival provisions. For the above reasons, we reverse and remand the cause for further proceedings. ", "ocr": true, "opinion_id": 7826403 } ]

[ "334 Ark. 325", "974 S.W.2d 453" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Per Curiam. Petitioner Lonnie Hull petitions this court for a writ of certiorari and writ of mandamus to respondent Chancery Judge Richard E. Gardner, Jr., directing the judge to hold a hearing on Hull’s ability to pay past-due child support or, alternatively, for a writ of certiorari excusing Hull from payment of the child support. Based on the scant record and pleadings which this court has before it, it appears that on March 4, 1998, Hull approved an Agreed Order on Contempt when he was committed to the Pope County Detention Center, with the commitment suspended on the condition that Hull pay $1,064 on or before March 19, 1998. Hull failed to make that payment, and on July 2, 1998, he was incarcerated for contempt. It appears from what we have before us that he has been continually jailed since that time. Hull now argues to this court that the “undisputed testimony in the record demonstrates” that he has no ability to pay the child support and that the chancery judge has not examined the existing record to determine his ability to pay. Respondent State of Arkansas, Office of Child Support Enforcement responds that Hull has presented no evidence of his inability to pay and further emphasizes that the jailing is due to his failure to comply with the Agreed Order. We cannot determine from the record before us whether the chancery judge considered Hull’s ability to pay prior to his incarceration for contempt. Nor can we tell whether the judge was asked by Hull to make such a determination. Our caselaw is clear that incarceration for contempt for fading to pay child support is not used unless the contemnor has the ability to pay. Gould v. Gould, 308 Ark. 213, 823 S.W.2d 890 (1992). We remand this matter to the trial court and direct that the issue of Hull’s ability to pay be determined in a hearing forthwith. See Whitworth v. Whitworth, 331 Ark. 461, 961 S.W.2d 768 (1998). In the event that this issue has been previously considered and determined by the chancery judge, we direct that that determination be made part of the record. ", "ocr": true, "opinion_id": 7826791 } ]

[ "338 Ark. 834" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Per Curiam. Katharine Day Wilson, Attorney at Law, of Batesville, Thomas H. McGowan, Esq., of Little Rock, and James M. Pratt, Jr., Esq., of Camden are reappointed to the Supreme Court Committee on Civil Practice for three-year terms to expire on July 31, 2002. The Court thanks Ms. Wilson, Mr. McGowan, and Mr. Pratt for accepting reappointment to this important Committee. ", "ocr": true, "opinion_id": 7827006 } ]

[ "342 Ark. 609", "30 S.W.3d 105" ]

[ { "author_str": "Brown", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Robert L. Brown, Justice. This appeal is from an order of the circuit court, which denied the motion of appellant Slots, Inc., to return certain seized devices. The items seized included twenty-five alleged gaming devices. The circuit court refused to return twenty-four of those alleged devices. Slots, Inc., raises four points on appeal which essentially concern whether the alleged gaming devices are in fact amusement devices and protected under the Coin-Operated Amusement statutes, codified at Ark. Code Ann. §§ 26-57-401 through 421 (Repl. 1997). Because we conclude that the order appealed from is not a final order under Ark. R. Crim. P. 15.2(e), we dismiss the appeal without prejudice. The facts are that in 1998, Slots, Inc., with an address of Hydes, Maryland, received a $1,000 Amusement Machine Operator’s permit from the Arkansas Department of Finance and Administration to operate an adult amusement game room business in North Little Rock. The business was commenced with David Howard Shaw, Jr., acting as agent for Slots, Inc., and doing business as F&S Enterprises. On October 1, 1998, North Little Rock police officers executed a search warrant on Shaw’s video arcade in North Little Rock and seized twenty-five video amusement machines. The police officers also arrested one of Shaw’s employees, Brian Keith Smith. On October 29, 1998, Slots, Inc., and Shaw filed a motion for return of the seized machines under Arkansas Rule of Criminal Procedure 15.2 in the Municipal Court of North Little Rock, Criminal Division, where Smith’s case was pending. No hearing was held, and the devices at issue were not returned. On April 1, 1999, Shaw was charged in Pulaski County Circuit Court with the crime of keeping a gambling house in violation of Ark. Code Ann. § 5-66-103 (Repl. 1997). On April 24, 1999, Shaw was killed in a vehicular accident. On June 1, 1999, Slots, Inc., filed a renewed motion for return of the seized machines. On June 11, 1999, the criminal charge against Shaw was deemed abated by his death. Thereafter, a hearing was held on the motion for return of the seized machines, and the circuit court ordered the return of one non-functional device and denied the motion with respect to the other twenty-four devices. The circuit court ruled in its order that the twenty-four remaining machines were illegal gaming devices and that operation of them violated the lottery prohibition of Article 19, Section 14 of the Arkansas Constitution. We turn first to a jurisdictional defect asserted by the State. The State directs this court to Ark. R. Crim. P. 15.2, which deals with motions for the return of seized things, and particularly to the subsection dealing with appellate review. That subsection reads: (e) Appellate Review. An order granting a motion for return or restoration of seized things shall be reviewable on appeal in regular course as a final order. An order denying such a motion, or entered under Rule 15.2(f), shall be reviewable on appeal upon certification by the court having custody of such things that they are no longer needed for evidentiary purposes. Ark. R. Crim. P. 15.2(e). The State contends that although Shaw’s prosecution was abated by his death, the order of the circuit court does not contain a certification from the court that the devices seized are no longer needed for evidentiary purposes. Accordingly, the State contends that the circuit court’s order denying the motion is not a final, reviewable order and that this court is without jurisdiction to reach the merits. At oral argument, the State analogized the necessity for a circuit court certification under Rule 15.2(e) to court approval of a conditional plea, which is a prerequisite for an appeal of an adverse decision on a pretrial motion to suppress. See Ark. R. Crim. P. 24.3(b). In response, Slots, Inc., contends that the criminal charge was abated by Shaw’s death, and that no other criminal charges relating to the seized devices are pending. Moreover, it asserts that the prosecution never advised the circuit court that it had need of these devices for evidentiary purposes. Finally, it notes that the twenty-four questionable machines are in the custody of the North Little Rock Police Department and not the circuit court. Thus, it contends, Rule 15.2(e) is inapposite. The issue raised by the State is one of first impression for this court and presents us with a question of this court’s jurisdiction. We analogize the situation to the trial court certification required to render certain orders final for purposes of civil appeals. See Ark. R. Civ. P. 54(b). In civil appeals, this court has long had a strict policy that we would not consider an order final that is not conclusive of all claims affecting all parties unless there is an express determination by the trial court, supported by specific factual findings, that there is no just reason for delaying the appeal. See Ark. R. Civ. P. 54(b); see also Ark. R. App. P. — Civ. 2(a)(ll). We have emphasized this policy against piecemeal appeals in numerous cases, as well as the necessity to include a certification by the trial court that there is no just reason to delay the appeal. See, e.g., Hodges v. Huckabee, 333 Ark. 247, 968 S.W.2d 619 (1998); General Motors Acceptance Corp. v. Eubanks, 318 Ark. 640, 887 S.W.2d 292 (1994). A comparable requirement for circuit court certification before an order is reviewable by this court is expressly provided in Rule 15.2(e). A certification by the circuit court that the items seized “are no longer needed for evidentiary purposes” protects against a futile appeal from a denial of a motion to return seized things when the items are needed for future proceedings. We view it as being incumbent on the appealing party, here Slots, Inc., to perfect a final order, the same as the burden is on the appellant in a civil appeal to obtain a 54(b) certification. That was not done. It is true, as Slots, Inc., maintains, that Shaw is dead and no additional prosecutions in this matter are referred to in the record. But that is precisely the reason for a circuit court certification — to make certain with the participation of all parties, including the prosecuting attorney, that that is in fact the case. Otherwise, the matter is subject to some speculation on our part, and we will not engage in the futility of reviewing a matter that may not be final. We do not believe that the point made by Slots, Inc., that the machines are not in the custody of the circuit court, as Rule 15.2(e) requires, has merit. The machines were seized pursuant to a search warrant issued by the North Little Rock Municipal Court and though the machines currently are kept by the North Little Rock Police Department, they are still held under the auspices of the circuit court. In sum, we conclude that under the clear terms of our Rule 15.2(e), the required certification from the circuit court which would render the matter reviewable is lacking. We, therefore, dismiss the appeal without prejudice due to the lack of a final order. There is one final point. One day before oral argument, the State notified this court that it would be raising our recent decisions in Miner v. State, 342 Ark. 283, 28 S.W.3d 280 (2000) and Thompson v. State, 342 Ark. 365, 28 S.W.3d 290 (2000), concerning the failure of Slots, Inc., to move for a directed verdict pursuant to Ark. R. Crim. P. 33.1 in order to preserve the issue of insufficient evidence. The State urges that the failure to make the directed-verdict motion at the hearing on the motion to return the seized devices constituted a waiver of the right to appeal from an adverse decision. We recognize that the State did not have the benefit of our decisions in Miner and Thompson until after it had filed its briefs in this matter. Nevertheless, the issue raised by those decisions and by the State at oral argument is essentially a new one. We deem it to be unfair to Slots, Inc., to raise a new issue at such a late date. We have stated that litigants are entitled to know all arguments made against their positions so that they can prepare adequate responses. Medlock v. Leathers, 311 Ark. 175, 842 S.W.2d 428 (1992). That did not occur under these circumstances. Hence, we will not address this argument. Appeal dismissed without prejudice. Glaze, J., dissents. ", "ocr": true, "opinion_id": 7827202 }, { "author_str": "Glaze", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Tom Glaze, Justice, dissenting. The majority court dismisses this appeal because the appellant did not obtain a certification from the lower court that the seized contraband in issue in this appeal is no longer needed for evidentiary purposes. It adopts the State’s contention that, because appellant failed to obtain the certification, the trial court’s order refusing to return the contraband to the appellant was not a final order from which the appellant could appeal. The majority court analogizes this situation to the ones covered under Ark. R. Civ. P. 54(b), and like in Rule 54(b) cases, the majority reads that a party’s failure to obtain a certification under Ark. R. Crim. P. 15.2(e) is jurisdictional and is reason to dismiss the appellant’s appeal. As the majority opinion points out, the Rule 15.2(e) issue is one of first impression, and while the court now decides to interpret Rule 15.2(e) as jurisdictional, it is certainly not obliged to do so, because Rule 15.2(e) serves an entirely different purpose than Rule 54(b). It is quite clear that Rule 15.2(e)’s certification is to assure the seized contraband is no longer needed for evidentiary purposes, whether in criminal or civil proceedings. This is information the State in this case was fully aware of. If the State anticipated a future need of the contraband, the State could have made its needs known. The record reflects that neither the appellant nor the State needed the contraband as evidence since the defendant, David Shaw, is now dead and no additional prosecutions are mentioned. Surely, this is an evidentiary matter that could be waived and should not be jurisdictional. Rule 15.2(e) is unlike Rule 54(b), whose sole purpose is to prevent piecemeal appeals in order to avoid delay. In conclusion, I am well aware that the court may interpret Rule 15.2(e) strictly as a jurisdictional bar when no certification has been obtained showing the seized contraband is no longer needed for evidentiary purposes. However, this court has a choice or alternative construction that is far more reasonable — a certification can be waived where a party or the record fails to show any future need for the contraband, and, in fact, reflects no pending or possible proceedings that might require the seized contraband. Certainly, the seized contraband must be preserved until the appeal is concluded, and if any future need for the contraband becomes evident in this appeal, this court has the authority to make specific directives dealing with such matters in its disposition. For the above reasons, I would proceed with the merits in this appeal and avoid any further, unnecessary delay. ", "ocr": true, "opinion_id": 7827203 } ]

[ "342 Ark. 691", "35 S.W.3d 792" ]

[ { "author_str": "Smith", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Lavenski R. Smith, Justice. This is an attorney discipline case. Appellant Mark Cambiano appeals from an order of the Conway County Circuit Court dismissing his counterclaim. In his counterclaim, Cambiano sought injunctive relief against the interim suspension imposed by the Supreme Court Committee on Professional Conduct pursuant to Section 7J of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at law. Cambiano contended that Section 7J violates both state and federal constitutions. In conjunction with the dismissal, the trial court also certified its order to be final for appeal purposes pursuant to Ark. R. Civ. P. 54(b). We have jurisdiction pursuant to Ark. Sup. Ct. R. l-2(a)(5) as an appeal involving the discipline'of attorneys-at-law and/or arising under the power of the supreme court to regulate the practice of law The issue before this court is whether Section 7J is constitutional. We hold that it is and accordingly affirm. Facts Cambiano received his law license in 1980 and apparently has practiced law in this state since that time. In April of 1997, the federal government indicted Cambiano alleging thirty-one counts of various federal offenses including money laundering and filing a false currency transaction report. Cambiano pled guilty to filing a false currency transaction report and the U.S. Attorney agreed to drop the remaining thirty counts. United States District Court Judge George Howard sentenced Cambiano to three years probation on June 26, 1998. Approximately a month later, the Committee on Professional Conduct (“the Committee”) imposed an interim suspension on Cambiano’s law license. The Committee suspended Cambiano’s law license pursuant to Section 7(E)(3)(a) and (b) and 8B(l)(a) and (b) of the Procedures of the Arkansas Supreme Court Regulating the Professional Conduct of Attorneys at Law (“the Procedures”). In February 1999, the Committee instituted disbarment proceedings in Conway County Circuit Court citing his conviction as well as the illegal conduct alleged in the federal indictment. Cambiano answered the disbarment complaint on February 18, 1999, and counterclaimed on April 22, 1999. Specifically, Cambiano’s counterclaim requested injunctive relief and a declaratory judgment that the interim suspension during the pendency of the disbarment proceedings under Section 7J of the Procedures was unconstitutional and that it violates his civil rights. Cambiano’s counterclaim sought to have the Rule declared unconstitutional so that he could continue to work for his father, who is also an attorney, while waiting for the disbarment trial. Cambiano argued that the rule violated his rights to free speech and association, due process of law, and was void for vagueness under the Fourteenth Amendment to the Constitution. The Committee responded on May 10, 1999, with a Motion to Dismiss the Counterclaim under Ark. R. Civ. P. 12(b)(6). The circuit court held a hearing on November 10, 1999 on the motion. There, Cambiano and his father testified about the type of work he would perform at his father’s office should the suspension be lifted. The attorneys for the parties engaged in oral argument about the impact and breadth of the suspension rule, and the trial court ultimately granted the Committee’s Motion to Dismiss the Counterclaim. In granting the dismissal, however, the trial court also determined that the order was final and appealable so that Cambiano could pursue this appeal while the underlying disbarment case proceeded. The actual order was filed on January 3, 2000, and Cambiano filed his Notice of Appeal on January 24, 2000. Standard of Review On review of a decision of the circuit court in disbarment cases, we review the matter de novo on the record and will not reverse the trial court’s findings unless they are clearly erroneous. Neal v. Matthews, 342 Ark. 566, 30 S.W.3d 92 (2000). A finding is clearly erroneous when although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been committed. Neal v. Hollingsworth, 338 Ark. 251, 992 S.W.2d 771 (1999). With respect to interpretation of statutes, however, this court is not bound by the decision of the trial court as it is for this court to decide what a statute means. Central & Southern Companies, Inc. v. Weiss, 339 Ark. 76, 3. S.W.3d 294 (1999). Applicable Rules This appeal involves the Procedures and their application to a suspended attorney. Under Section 2C(1), the Committee has the authority “to investigate all complaints alleging violation of the Model Rules that may be brought to its attention and impose any sanctions deemed appropriate as provided in Section 5 (Procedure) and Section 7 (Sanctions).” Section 7 states in relevant part: Section 7. Sanctions. A. Grounds for Discipline. It shall be grounds for discipline for a lawyer to: (1)Violate or attempt to violate the Model Rules of Professional Conduct, or any other rales of this jurisdiction regarding professional conduct of lawyers; B. Serious Misconduct. Serious misconduct is conduct in violation of the Model Rules that would warrant a sanction terminating or restricting the lawyer’s license to practice law. Conduct will be considered serious misconduct if any of the following considerations apply: (1) The misconduct involves the misappropriation of funds; (2) The misconduct results in or is likely to result in substantial prejudice to a client or other person; (3) The misconduct involves dishonesty, deceit, fraud, or misrepresentation by the lawyer; *** (6) The misconduct constitutes a “Serious Crime” as defined in these Procedures. D. Types of Sanctions. Misconduct shall be grounds for one or more of the following sanctions: *** (3) INTERIM SUSPENSION: A temporary suspension for an indeterminate period of time of the lawyer’s privilege to engage in the practice of law pending the final adjudication of a disciplinary matter. E. Imposition of Sanctions. When the Committee finds that an attorney has violated any provision of the Model Rules, the Committee is authorized: *** (3) To temporarily suspend the lawyer’s privilege to practice law pending final adjudication and disposition of a disciplinary matter. Interim suspension shall be appropriate in the following situations: (a) Immediately on decision to initiate disbarment; (b) Immediately upon conviction of a felony notwithstanding pending post-conviction actions; Central to the issues in this case is Section 7J detailing the restrictions on employment of disciplined attorneys. This section states: (1) When attorneys have been placed on inactive status, suspended, disbarred, or have surrendered their licenses, they are ineligible to practice law within this jurisdiction until readmitted or reinstated. (2) While on suspension or inactive status, an attorney shall not be employed in any capacity whatsoever with a lawyer, law firm or lawyer professional association. Employment is construed as the provision of any services or labor for the benefit of the law practice of the employing lawyer or lawyers, whether compensated or not, and irrespective of the location where the services or labor may be performed. (3) An attorney who has been disbarred or has surrendered his or her law license may be employed by a lawyer, law firm or lawyer professional association to perform such services only as may be ethically performed by other lay persons employed in the law offices. Provided, however, that the following conditions apply: *** (c)The employed former lawyer shall have no direct contact with any client or receive, disburse, or otherwise handle trust funds or property. As indicated in Section 2(c), the Arkansas Supreme Court has granted authority to regulate the legal profession in Arkansas to the Committee, and the Court has put into effect specific rules for the discipline and monitoring of disciplined attorneys in the state. Some of these regulations, as noted, limit or terminate a person’s privilege to practice law. Cambiano’s challenge to the rules questions whether some of these rules are violative of the Constitution and whether they should be stricken. Freedom of Speech and Association In this appeal, Cambiano argues that an interim suspension under Section 7J violates his constitutional rights. Cambiano makes a three-part argument. First, he contends that his rights to free speech and association under the First Amendment are chilled under the rule because he is not allowed to work for or discuss legal matters with other attorneys even though he has no contact with clients. Cambiano argues that while the Arkansas Supreme Court has “some rights” to regulate the conduct of suspended attorneys, this right is not unfettered, particularly in the area of speech. Cambiano argues that the rule does not only regulate his “commercial” speech, but also his political speech as he may want to express his political opinion in a legal framework. In response, Neal first responds that the United States Supreme Court has determined that states have broad latitude to regulate professions in their boundaries, and that states could limit an attorney’s First and Fourteenth Amendment rights in order to protect the public. The Procedures include the specific language that an attorney who is convicted of a felony will be suspended pending disbarment, and Section 7J was created to protect the public. Neal argues that the speech involved at issue is “commercial” speech in that it is speech that is made for a business purpose, and that the overbreadth doctrine does not apply to this type of speech. Section 7J does not prevent an attorney from making “political” speech; instead, it prevents an attorney from aiding a client, with or without compensation, which is “commercial” speech. Neal is correct on this point. Generally, States have a strong interest and a right to regulate professions within their boundaries, and the States bear “a special responsibility for maintaining standards among members of the licensed professions.” Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 460 (1978). In particular, the States’s interests in regulating lawyers is “especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been ‘officers of the courts.’ ” Id. (citing Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975)). However, this right of regulation is not absolute; actions protected by the First Amendment continue to receive at least some level of protection “even when the attorney violates a disciplinary rule he swore to obey when admitted to the practice of law.” Gentile v. State Bar of Nevada, 501 U.S. 1030, 1054 (1991). In the realm of First Amendment speech, the Supreme Court has identified three types of speech, and has assigned varying levels of protection under the First Amendment for that speech. These three have been categorized as “pure speech,” “not-so-pure speech,” and “impure speech.” Chester James Antieau, Modern Constitutional Law § 4.00 et seq. (2nd ed. 1997, Supp. 1999). At issue in this case is whether the speech proscribed by Section 7J is “political” speech, a form of “pure speech,” affording the strictest protection under the First Amendment, or “commercial speech,” a form of “not-so'-pure speech,” which only garners intermediate protection under the First Amendment. Cambiano argues that Section 7J could impair his right to “political speech” which is afforded the highest level of protection. Neal argues that Section 7J only proscribes “commercial speech,” affording it lesser protection which is overcome here by the Committee’s substantial interests in regulating the profession. To determine the type of speech proscribed here, we must review both the language and effect of Section 7J of the Procedures. As noted, an attorney who is suspended is barred from being employed by any lawyer or law firm in any capacity, for compensation or not, during the suspension. In Section 7J(2), “employment” is “construed as the provision of any services or labor for the benefit of the law practice of the employing lawyer or lawyers, whether compensated or not, and irrespective of the location where the services or labor may be performed.” Section 7J(2). In other words, a suspended attorney may not provide any services to an attorney, for pay or not, at any location, if such services would benefit the law practice. While this provision seems rather broad at first glance, a plain reading of the section indicates that the section curtails commercial speech or an “expression related solely to the economic interests of the speaker and its audience.” Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 762 (1976); Bates v. State Bar of Arizona, 433 U.S. 350, 363-364 (1977); Friedman v. Rogers, 440 U.S. 1, 11 (1979). The Supreme Court’s decisions have recognized “the ‘commonsense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.” Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557, 562 (1980). As the Supreme Court stated in Ohralik: Expression concerning purely commercial transactions has come within the ambit of the Amendment’s protection only recently. In rejecting the notion that such speech “is wholly outside the protection of the First Amendment,” Virginia Pharmacy, supra, at 761, we were careful not to hold “that it is wholly undifferentiable from other forms” of speech. 425 U.S. at 771 n. 24. We have not discarded the “common-sense” distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech. Ibid. To require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the Amendment’s guarantee with respect to the latter kind of speech. Rather than subject the First Amendment to such a devitalization, we instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression. Ohralik, 436 U.S. at 455-456. In Ohralik, a case involving in-person solicitations of clients by an attorney in violation of the Ohio Bar’s rules against such conduct, the Supreme Court noted that: A lawyer’s procurement of remunerative employment is a subject only marginally affected with First Amendment concerns. It falls within the State’s proper sphere of economic and professional regulation. (Citation omitted.) While entitled to some constitutional protection, appellant’s conduct is subject to regulation in furtherance of important state interests. Id., 436 U.S. at 459. Because the speech here is commercial speech, it is afforded only a “limited measure of First Amendment protection.” Florida Bar v. Went For It, Inc., 515 U.S. 618, 623 (1995). This limited measure of protection for “commercial speech” is in the form of “intermediate” scrutiny which is accomplished by following the four prongs set out in Central Hudson. These prongs include: In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. Central Hudson, 447 U.S. at 566. We hold that Section 7J directly advances the important governmental interests of consumer protection and the integrity of the legal system. Further we hold that it is no more restrictive than necessary and is thus constitutional. In Lawline v. American Bar Association, 956 F.2d 1378 (7th Cir. 1992), the United States Court of Appeals for the Eleventh Circuit held that Illinois had the right to regulate the practice of law by forbidding attorneys from entering into partnerships with nonlawyers if any of the activities of the partnership consisted of the practice of law. The Eleventh Circuit Court of Appeals found that the State’s interest in preventing incompetent legal assistance was adequate justification for the rule. The plaintiffs in Lawline asserted the same causes of action as those asserted by Cambiano. Regarding the freedom of speech challenge, the court determined that since the state had a legitimate interest to protect, “any abridgment of the right to free speech is merely the incidental effect of observing an otherwise legitimate regulation.” Lawline, 956 F.2d at 1386. Furthermore, the Lawline court rejected the argument that the regulation at issue violated the plaintiffs’s rights to freedom of association because no fundamental right was at issue to trigger the protection. Such is the case here, as there is no fundamental right to work as an attorney or at a law firm. The practice of law is a privilege to engage in commercial activity, not a right. As such, the freedom of association in the First Amendment does not apply. Cambiano also asserts that Section 7J is overly broad in that it “bans Cambiano’s core political protected speech.” In essence, Cambiano argues that some legal issues on which he could give advice are actually political issues which are protected by a “strict scrutiny” review under the First Amendment. Because we have held the speech at issue to be commercial speech, we also hold the overbreadth doctrine to be inapplicable. See Ohralik; Shapiro v. Kentucky Bar Ass’n, 486 U.S. 466 (1988). Furthermore, while the Supreme Court agrees that “political speech” is the core form of speech protected by the First Amendment, See Ohralik and Gentile, there is a difference between providing legal advice to a lawyer or client, and espousing political views on issues such as the death penalty. Cambiano attempts to argue that providing legal advice on how to litigate a death-penalty case is “political speech.” However, it is more accurately described as speech with a commercial purpose of representing a client. The rule does not restrict Cambiano from using available public forums to state positions opposing the death penalty. However, to provide specific legal advice to an attorney who is handling a death-penalty case would violate his suspension. Due Process Second, Cambiano argues that Section 7J violates the Fourteenth Amendment to the Constitution and Article 2, § 8 of the Arkansas Constitution in that it takes away his right to liberty and property without due process of law and it is void for vagueness. He argues that his liberty interests are the freedom of speech and association, and his property interest is his right to income by assisting other lawyers who practice law. He argues that Section 7J is vague in that does not define the terms “ethically performed” or “direct contact.” Regarding the liberty and property arguments, Cambiano offers no authority to support his contentions. We have often stated that we will not consider arguments made without authority. National Bank of Commerce v. Dow Chem. Co., 338 Ark. 752, 1 S.W.3d 443(1999); Dobie v. Rogers, 339 Ark. 242, 5 S.W.3d 30 (1999); Farm Bureau Policy Holders v. Farm Bureau Mut. Ins. Co., 335 Ark. 285, 984 S.W.2d 6 (1999). Cambiano’s argument is premised on the idea that once licensed, he was then conferred a “property right” to practice law. However, this court has stated again and again that “the practice of law is a privilege and not a right.” See In re Petition Butcher, 322 Ark. 24, 907 S.W.2d 715 (1995); In re Petition for Reinstatement of Lee, 305 Ark. 196, 806 S.W.2d 382 (1991). As such, any protections to a law Hcense are only subject to the very lowest of review under the Due Process and Equal Protections Clauses of the Constitution. Certainly, here, more than sufficient reasons exist to suspend Cambiano from the practice of law. He was convicted of a felony, and under this Court’s Procedures, this constitutes grounds for automatic suspension pending an automatic referral for disbarment. As noted by Neal, the reasons to suspend Cambiano and prevent him from having any contact as an attorney with the public is substantial. Furthermore, the court’s right to control the practice of law is, in and of itself, substantial reason to effectuate the suspension in this case. Cambiano also argues that certain terms in Section 7J are void for vagueness under the Due Process Clause and should be invalidated. Specifically, he argues that the terms “ethically performed” and “direct contact” in the following provisions are unconstitutionally vague: (3) An attorney who has been disbarred or has surrendered his or her law hcense may be employed by a lawyer, law firm or lawyer professional association to perform such services only as may be ethically performed by other lay persons employed in the law offices. Provided, however, that the following conditions apply: *** (c) The employed former lawyer shall have no direct contac^ with any client or receive, disburse, or otherwise handle trust funds or property. (Emphasis added.) Section 7J(3) and (3)(c). As indicated in these two provisions, these definitions apply to a disbarred attorney, not a suspended attorney. Therefore, we consider this challenge a “pre-enforcement facial challenge” which involves a specific standard of review. In Craft v. City of Fort Smith, 335 Ark. 417, 984 S.W.2d 22 (1998), the court discussed the vagueness doctrine and stated: It is well settled that a law is unconstitutionally vague under due process standards if it does not give a person of ordinary intelligence fair notice of what is prohibited, and it is so vague and standardless that it allows for arbitrary and discriminatory enforcement. See Grayned v. City of Rockford, 408 U.S. 104 (1972); Thompson v. Arkansas Social Serv., 282 Ark. 369, 669 S.W.2d 878 (1984); Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979). When a person brings a “pre-enforcement facial challenge” to the vagueness of a law, the relevant inquiry is whether the ordinance is “impermissibly vague in all of its applications.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) (emphasis added). Likewise, in Planned Parenthood of Minnesota v. State of Minnesota, 910 F.2d 479 (8th Cir. 1990), the Eighth Circuit required those who brought a pre-enforcement facial challenge to a fetal disposal law to demonstrate that the “law is impermissibly vague in all of its applications” and that “the statute could never be applied in a valid manner.” The subject matter of the challenged law also determines how stringently the vagueness test will be applied. For instance, if the challenged law infringes upon a fundamental right, such as liberty or free speech, a more stringent vagueness test is applied. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. supra; Thompson v. Arkansas Social Serv., supra; Davis v. Smith, supra. In contrast, if the law merely regulates business activity, a less stringent analysis is applied and more flexibility is allowed. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., supra; Thompson v. Arkansas Social Serv., supra; Davis v. Smith, supra. Craft, 335 Ark. at 424. As a “pre-enforcement facial challenge,” for Cambiano to prevail the terms at issue in this case must be “impermissibly vague in all of its applications” and “could never be applied in a valid manner” in order to be deemed void for vagueness. We hold within the context of the Procedures that these terms are not impermissibly vague. The terms “ethically performed” and “direct contact” have solid basis in the Rule 5.3 “Responsibilities Regarding Nonlawyer Assistants” in the Model Rules of Professional Conduct and in applicable case law. A person of ordinary intelligence could find a workable framework for these terms under which his or her conduct could be adapted. Equal Protection Finally, Cambiano argues that Section 7J violates his right to equal protection under the Fourteenth Amendment and Article 2, §§ 3 and 18 of the Arkansas Constitution because the rule places prohibitions on suspended lawyers that are not placed on people who have no law license. Fie argues that because the rule impinges on fundamental rights, strict scrutiny instead of the rational basis test must be applied to the analysis of the rule. Finally, Cambiano argues that Section 7J violates his right to equal protection. Flowever, as with his due process liberty and property arguments, he cites no authority supporting his contentions. Therefore, it will not be considered. See Nat’l Bank of Commerce, Farm Bureau, and Dobie, supra. Affirmed. ", "ocr": true, "opinion_id": 7827212 } ]

[ "354 Ark. 21", "117 S.W.3d 588" ]

[ { "author_str": "Imber", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": " Annabelle Clinton Imber, Justice. This interlocutory appeal arises from a medical malpractice claim filed by Appellee Gregg Adams against Appellant University of Arkansas for Medical Sciences (UAMS) and two physicians employed at UAMS. On October 11, 2002, the trial court denied a motion to dismiss UAMS as a defendant based on a claim of sovereign immunity. UAMS timely filed a notice of appeal, asserting that the denial of the motion to dismiss was error for two reasons: (1) UAMS, as a department of the University of Arkansas, is not an entity capable of being sued; and (2) even if Adams sued the University or its Board of Trustees as the correct party, the claim would be barred by Article 5, Section 20, of the Arkansas Constitution because the University enjoys sovereign immunity from suit. We agree with UAMS. Thus, the trial court’s denial of the motion to dismiss is reversed, and the claim against UAMS is dismissed. In reviewing a trial court’s decision on a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the complaint. Grine v. Bd. of Trustees, 338 Ark. 791, 2 S.W.3d 54 (1999). Ordinarily, an appeal may not be taken from an order denying a motion to dismiss. However, Ark. R. App. P. — Civ. 2(a)(10) provides for an interlocutory appeal of an order denying a motion to dismiss based on the defense of sovereign immunity. The rationale justifying an interlocutory appeal is that the right to immunity from suit is effectively lost if the case is permitted to go to trial. State of Arkansas v. Goss, 344 Ark. 523, 42 S.W.3d 440 (2001). UAMS As Defendant For its first point on appeal, UAMS asserts that it is an entity that cannot sue or be sued. The Arkansas General Assembly established UAMS as “a part of the University of Arkansas . . . .” Ark. Code Ann. § 6-64-401 (Repl. 1996). UAMS, like other departments of the University of Arkansas, is under the management and control of the University’s Board of Trustees. Ark. Code Ann. § 6-64-402 (Repl. 1996). Clearly, UAMS is merely a department of the University of Arkansas and, as such, is not an entity that can sue or be sued. See Asaad-Faltas v. UAMS, 708 F.Supp. 1026 (E.D. Ark. 1989), aff'd 902 F.2d 1572 (8th Cir. 1990). For this reason, UAMS must be dismissed as a defendant in this suit. Sovereign Immunity This interlocutory appeal is allowed by Ark. R. App. P. — Civ. 2(a)(10) solely because UAMS’s motion to dismiss was based on the defense of sovereign immunity. For this reason, we will address the sovereign-immunity issue. UAMS points out that Adams could merely refile his complaint and name the University or its Board of Trustees as defendant rather than UAMS, but that such a claim would be barred by the doctrine of sovereign immunity. The Arkansas Constitution expressly forbids suits against the State, providing, “[t]he State of Arkansas shall never be made a defendant in any of her courts.” Ark. Const. art. 5, § 20, Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986). Sovereign immunity is jurisdictional immunity from suit, and jurisdiction must be determined entirely from the pleadings. Arkansas Tech Univ. v. Link, 341 Ark. 495, 17 S.W.3d 809 (2000). Where the pleadings show the action is one against the State, the trial court acquires no jurisdiction. Id.; Brown v. Ark. St. HVACR Lic. Bd., 336 Ark. 34, 984 S.W.2d 402 (1999). However, unlike subject-matter jurisdiction, sovereign immunity can be waived. Grine v. Bd. of Trustees, supra; Newton v. Etoch, 332 Ark. 325, 965 S.W.2d 96 (1998). This court has consistently held that a suit against a state university or its board of trustees is a suit against the State and is barred by the doctrine of sovereign immunity. See Chambers v. Stern, 347 Ark. 395, 64 S.W.3d 737 (2002); Arkansas Tech Univ. v. Link, supra. As we explained in Arkansas Tech Univ. v. Link, supra, “if a judgment for the plaintiff will operate to control the action of the State or subject it to liability, the suit is one against the State and is barred by the doctrine of sovereign immunity.” 341 Ark. at 502, 17 S.W.3d at 813. See also Beaulieu v. Gray, supra. The General Assembly has provided that UAMS’s costs and expenses will be borne by the State of Arkansas. Ark. Code Ann. § 6-64-403 (Repl. 1996). A finding for the appellee against UAMS would necessarily subject the State of Arkansas to financial liability. Sovereign immunity bars such an action unless it has been waived. Arkansas Pub. Def. Comm’n v. Burnett, 340 Ark. 233, 12 S.W.3d 191 (2000); Office of Child Support Enf. v. Mitchell, 330 Ark. 338, 954 S.W.2d 907 (1997). No argument of waiver was made below or to this court. Adams has failed to follow the proper avenue for redress against State action, which is to file a claim with the Arkansas Claims Commission. Ark. Code Ann. § 19-10-204 (Supp. 2001); see e.g., Arkansas Tech Univ. v. Link, supra. We hold that the trial court erred in denying UAMS’s motion to dismiss because UAMS, as a department of the University of Arkansas, is not an entity that can be sued. Further, the doctrine of sovereign immunity bars a claim against the University of Arkansas and its Board of Trustees. Reversed and dismissed. ", "ocr": true, "opinion_id": 7827597 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 1, "download_url": "https://www.pacourts.us/assets/opinions/Supreme/out/90WAL2022 - 105264844196874620.pdf", "author_id": null, "opinion_text": " IN THE SUPREME COURT OF PENNSYLVANIA\n WESTERN DISTRICT\n\n\nCOMMONWEALTH OF PENNSYLVANIA, : No. 90 WAL 2022\n :\n Respondent :\n : Petition for Allowance of Appeal\n : from the Order of the Superior Court\n v. :\n :\n :\nTERRELL LAMONT CHILDS, :\n :\n Petitioner :\n\n\n ORDER\n\n\n\nPER CURIAM\n\n AND NOW, this 7th day of September, 2022, the Petition for Allowance of Appeal\n\nis DENIED.\n\f", "ocr": false, "opinion_id": 7827926 } ]

[ "121 Colo. 88", "212 P.2d 860" ]

[ { "author_str": "Holland", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMr. Justice Holland\ndelivered the opinion of the court.\nPlaintiff in error, a Colorado corporation, filed its *89complaint in damages against the defendant in error, a California corporation for violation of the terms of a written agreement between the two corporations and for unlawful termination and repudiation by the defendant corporation of the written agreement. Service was made on one Nicholson, a dealer-sales manager of defendant corporation, while he was in Denver for the purpose either of collecting delinquent money owing the California corporation by plaintiff or obtaining an assignment of a sufficient amount of plaintiff’s stock of merchandise to secure payment of the account.\nThe defendant corporation, to which we will refer'as Pacific company, filed its motion to quash the service on the ground that it was not “doing business” in the state of Colorado; was not subject to service of process in the state of Colorado; and that the purported service upon Nicholson was not sufficient, for the reason that Nicholson was only a sales manager of the corporation and not authorized to accept or receive service of summons in the state of Colorado for the corporation. The motion to quash the summons was sustained on the ground that the defendant company was not “doing business” in the state of Colorado; however, the court did, without specific finding, say that if it had determined that the defendant company was “doing business” in the state of Colorado, it would hold the service on Nicholson to be sufficient..\nPlaintiff in error, hereinafter called Begole company, specifies error, which, in substance, is that Nicholson was the proper person to be served with summons; that the Pacific company was doing business in the state of Colorado of such a nature as to subject it to the jurisdiction of the Colorado courts; and that the court erred in sustaining the motion to quash.\nThe multitudinous attempts to define what is “doing business,” in like cases, has resulted in much confusion and the phrase seems not to have a universal meaning. However, there is a distinction between “doing busi*90ness” by a foreign corporation such as would subject it to the jurisdiction of courts not of its domicile, and “doing business” of the character that would subject it to the power of the state to impose regulations upon its activities.\nIn view of the trial court’s statement that it was unnecessary to determine whether or not Nicholson was a proper person upon whom service could be made, however, if it had determined that Pacific company was “doing business” in Colorado the service would be upheld, counsel for Pacific company has elected not to file cross specifications on this point. Since the intimated ruling was favorable to Begole company, plaintiff in error, its argument offered on this point is useless, and, as we view the matter, this question is controlled by the lone, broad proposition and determined by an answer, to the question: Was Pacific company doing such business in the state of Colorado as would subject it to the jurisdiction of the Colorado courts?\nThe complaint, containing a verbatim copy of the contract between the parties hereto, and all other pleadings and affidavits consume 163 folios of the record, and about forty exhibits, being largely letters and telegrams between the parties in performance of the contract, presents such a voluminous record that no effort is here made to detail the contents thereof, or any of the evidence adduced in a three-day hearing before a trial court whose findings disclose a patient and painstaking consideration of all the matters presented and whose findings we should hesitate to disturb.\nTo consider whether or not the judgment has sufficient support in the record, we briefly enumerate the following important facts: Pacific company, a California corporation, with its principal offices there, on August 22, 1946, entered into a written contract with Begole company, a Colorado corporation, which was considered 'by both parties as a “distributor contract.” The principal business of Pacific company was the sell*91ing, manufacturing and distributing to the public, and to dealers, airmotive parts, supplies and accessories throughout the United States and some foreign countries. Prior to the date of the contract, Archie Begole, later president of Begole company, acted as a distributor in Colorado for the Pacific company under an orál contract. Later Begole company was incorporated and had a place of business at 1536 Market street, Denver, from which it operated and conducted sales and distribution of airmotive parts and supplies in Colorado and through its own dealers.\nThe written contract was an agreement between the parties whereby Pacific company agreed to sell to Begole company, and Begole company agreed to pur-, chase from Pacific company, all of its requirements for airmotive parts, supplies and accessories distributed by or through Pacific company, and not to deal in products competitive to Pacific company; all orders were to be in writing and subject to acceptance, by the Pacific company; payment to be according to Pacific company’s' written terms of payment in effect at the time of any shipment, and all deliveries by Pacific company to be F. O. B. at the point of shipment; Pacific company reserved the right to decline deliveries except for cash and the right to cancel the agreement upon failure of Begole company to make payment on any due date; Begole company agreed to display signs furnished by Pacific company for advertising purposes, title to such material to remain in Pacific company to be returned on termination of the contract; Pacific company agreed not to appoint further distributors in Colorado and other parts of the territory designated; the agreement is not an appointment of Begole company as agent and Begole company is given no powers to act for, or bind, Pacific company in any respect; provision for termination of contract for default.\nA subsequent letter agreement was entered into for the purpose of enabling Begole company to take care *92of an existing default under ,the contract on account of past due indebtedness for merchandise by Begole company obtaining the services of a bonded warehouse to take over a sufficient part of its inventory to allow payment of all the indebtedness to the Pacific company; and it was further agreed that this warehousing arrangement was not to affect the terms and conditions of the original distributor contract, and that Begole company was to consummate such arrangement within thirty days, or Pacific company might thereafter repossess sufficient quantities of merchandise to discharge' the indebtedness. Negotiations having failed concerning the warehouse proposition and Begole company not having liquidated its indebtedness to Pacific company, on April 12, 1947, the Pacific company, pursuant to the terms of the contract, through its dealer-sales manager, Norman Nicholson, who had come to Denver relative to an adjustment, demanded,- in writing, the payment of this indebtedness in the sum of $9,237.99, or the delivery of a sufficient amount of merchandise, at cost, to liquidate the indebtedness. On the same day, and shortly after the demand was served on Begole company, this action was instituted by the service of a summons on Norman Nicholson then in Denver.\nA study of the original contract of August 22, 1946, discloses that it specifically defines the status of the parties and that it was declared to be a contract of purchase and sale with special grant of exclusive territory provisions and that the merchandise sold to' the Begole company in California F. O. B. and that the title is vested in Begole company; the evidence discloses that the activities of the Begole company in its granted territory were solely on its own behalf and not as an agent for the Pacific company, and that the Pacific company did not engage in doing business in Colorado directly or through any agency of the Begole company, and its only relationships were incidental to the vendor and *93vendee relationship as set out and defined in the contract.\nNo third parties are involved, and the contract, which was terminated by Pacific company on April 12, 1947 by refusing to extend further credit to Begole company, and demanding possession of sufficient property to discharge the indebtedness and by formal notice of termination, was a contract by which both parties expected to derive benefit and was voluntarily made. This contract and the terms thereof is binding on the courts as to the rights of the parties. The clear intention of the parties was expressed by the language of the contract, and, therefore, the character of the contract was established. The actions of the parties under the contract prior to the controversy which has arisen indicate that the contract was intended to be nothing more or less than a purchase and sales contract from one distributor to another and in no sense the creation of an agency. Such is our view of the pleadings, exhibits and the evidence, which amply sustains the findings of.the trial court that the Pacific company was not engaged in “doing business” in Colorado In a way that would bring it within the jurisdiction of the Colorado courts.\nAfter considering the facts, the trial court aptly quoted from the case of Butler Bros. Shoe Co. v. United States Rubber Co., 156 Fed. 1, wherein the court, in speaking of authorities on the question of “doing business” said: “They are numerous, various, and conflicting, and any attempt to reconcile them must fail.” The trial court further said, “authorities all agree, however, on one point, namely, that each case depends on its own facts,” citing People’s Tobacco Co. v. American Tobacco Co., 246 U. S. 79, 38 Sup. Ct. 233, 62 L. Ed. 587.\nIn a similar case, Rogers v. Mountain States Royalties, 116 Colo. 455, 182 P. (2d) 142, Mr. Justice Jackson, speaking for the court, said, that from a study of the cases of this and other jurisdictions, “It seems that *94some of the cases are resolved by leaving the matter in the sound discretion of the trial court.” This we aré content to do in the instant case.\nThe judgment, therefore, is affirmed.\nMr. Justice Hays dissents.\n", "ocr": true, "opinion_id": 7828005 } ]

[ "128 Colo. 100", "260 P.2d 596" ]

[ { "author_str": "Alter", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMr. Justice Alter\ndelivered the opinion of the court.\nR. Akers brought an action in the justice court against Lester L. Saunders to secure a judgment on Saunders’ *101promissory note. Judgment in said court was in favor of defendant and on appeal to the county court, judgment was entered in favor of Akers and against Saunders. Plaintiff in error brings the cause here by writ of error seeking a reversal of the judgment.\nOn January 23, 1952, Louis J. Weinstein, the then owner of certain personal property, fixtures and equipment used in the operation of a restaurant, entered into an agreement with Lester L. Saunders whereby he covenanted and agreed to sell this property to Saunders for a consideration of $7,000.00, and at that time Saunders paid Weinstein $25.00 and further agreed to pay the balance of the purchase price in semi-monthly payments based upon seven per cent of the gross proceeds derived from the restaurant business. In said agreement the following pertained to its termination: “* * * but in case of failure of the party of the second part to make any one or more of said payments or perform any of the covenants agreed to be made and performed by the party of the second part, this Agreement may be terminated at the election of the party of the first part upon giving to the party of the second part thirty (30) days’ notice of intention so to do, which notice may be by registered mail directed to the last known address of the party of the second part, cmd. in case of such election, the party of the second part shall forfeit all payments made and such payments shall be retained by the party of the first part in full satisfaction and liquidation of all damages party of the first part may have sustained.” (Italics ours)\nApril 10, 1952, Saunders having failed to make the semi-monthly payment due on April 3, 1952, Weinstein wrote him a letter in which he called attention to the provisions of the contract, concluding with the following statement: “In accordance to the terms of our agreement I am herewith notifying you, as provided in the agreement, of my election to terminate this agreement thirty (30) days from the above date.”\n*102May 2, 1952, Saunders delivered the keys to the restaurant to Weinstein, and at that time produced records showing that defaulted payments, based on seven per cent of the gross profits, amounted to the sum of $199.39. The undisputed testimony in effect is that Weinstein’s attorney advised Saunders that this sum was a collectible item, and payment thereof was demanded, whereupon Saunders signed a promissory note for said sum, which note had been prepared by Weinstein’s attorney. The promissory note not having been paid at maturity, it was assigned to plaintiff herein for collection, and this action was instituted.\n Under the terms of the agreement Weinstein had two courses open to him when Saunders defaulted in payment. He had an election of remedies. Wilmore v. Mintz, 42 Colo. 328, 95 Pac. 536; Standring v. Gordon, 118 Ore. 339, 246 Pac. 361; James v. Allen, 23 Cal. App. (2d) 205, 72 P. (2d) 570; C. I. T. Corporation v. Fisher, 187 Okla. 314, 102 P. (2d) 848; 78 C.J.S., pp. 344, et seq., §597; pp. 349, et seq., §600; 47 Am. Jur., pp. 104, et seq., §896; pp. 170, et seq., §960. One of these courses was to commence an action for judgment in the amount then due in accordance with the terms of the agreement; the other was the right to terminate the agreement because of Saunders’ failure to abide by the terms and conditions thereof. Weinstein elected to pursue this latter course, and, having done so, he is irrevocably committed to that course. Wilmore v. Mintz, supra; 18 Am. Jur., p. 167, §51; 28 C.J.S., pp. 1101, et seq., §29. Having elected to rescind the agreement and foreclose all rights of Saunders thereunder, Weinstein then became entitled to retain the payments made by Saunders as liquidated damages “in full satisfaction and liquidation of all damages party of the first part may have sustained” by reason of Saunders’ default. May 2nd, when possession of the restaurant was returned to Weinstein in accordance with the latter’s demand, all of Saunders’, as well as Weinstein’s, rights and obligations under the agreement were terminated *103and the agreement cancelled. There was nothing due from Saunders in accordance with the terms and conditions of the agreement prepared by Weinstein’s attorney. If the promissory note was accepted by Weinstein as full payment and discharge of Saunders’ obligation under the agreement, then the agreement was not rescinded but remained in full force and effect. If, however, the agreement was rescinded as it was considered by both parties thereto, there was no further obligation under it, and the promissory note given in payment of the defaulted semi-monthly installments due under the agreement was without consideration.\nThe trial court, in entering judgment for plaintiff, stated, inter alia: “It is the opinion of the court—and the court so holds at this time—that the reference therein [in the agreement] to payments made would include payments which should have been made, and it is proper consideration and sufficient consideration for the execution of the note that the maker thereof would obligate himself for payments which should have been made during the life of the contract and to the effective date of the termination thereof.” The agreement probably could have been drawn so that the promissory note here in question would have been supported by a valid consideration, but this was not done, and the trial court erred in entering judgment for plaintiff.\nThe judgment is reversed and the cause remanded with instructions to set aside the judgment and enter judgment in favor of defendant for costs.\n", "ocr": true, "opinion_id": 7828232 } ]

[ "129 Colo. 352", "269 P.2d 1074" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPer Curiam.\nJudgment affirmed en banc without written opinion.\n", "ocr": true, "opinion_id": 7828321 } ]

[ "140 Colo. 347", "344 P.2d 179" ]

[ { "author_str": null, "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPer Curiam.\nPlaintiff in error, Richard Downing as administrator of the Estate of Virginia Jefferson and individually, seeks reversal of a judgment of the' County Court- of Denver removing him as administrator. The finding of the court was that although Downing had not ■ been guilty of fraud and waste as charged in the petition of Katherine Hough, who was seeking his ouster and her own appointment, there were unreasonable delays in the filing of inventories and reports which delays in turn caused confusion “and mismanagement of the estate” inconsistent with his duty as a fiduciary, “acting as' an arm of the court.”\nThe judgment was entered August 6, 1958, upon a petition filed December 13, 1957, a supplemental petition dated January 15, 1958, and a second supplemental petition dated July 29, 1958, a few days before the rendition of judgment. Trial was had on January 24, 1958, and on March 6 and 7, 1958. This resulted in the judgment of removal. Detailed reference to the contents of the several petitions which contain numerous charges (some of which are exaggerated and based on inference and innuendo) is unnecessary to the present determination. It will be sufficient to refer to the conclusions of the trial court and the applicable law. The trial court’s findings are as follows:\n“The Court, as was indicated to counsel at a previous hearing, has found no evidence' of fraud or waste during the administration of the estate by the administrator, *349however, from the evidence presented ana from a perusal of the records and files in said cause, there have been many derelictions of acts as required by statutes and rules of the Court in the handling of the estate. There was a total failure on the part of the administrator to perform the acts required by statute except when specifically ordered to perform those acts by the Court. The inventory was filed late; no reports were made to the Court until specifically ordered by the Court; real property was sold in the estate without authority of the Court and there is a general lack of regard by the fiduciary of the orderly procedure in handling estate running completely through his administration of the estate. The Administrator has shown a total disregard for the procedures required of a fiduciary and this in spite of the fact that he is an attorney at law and is familiar with such duties.\n“In. reviewing the cases cited by counsel, it appears that the general weight of authority is that dilatoriness of an administrator in filing inventories or making reports is not ground for removal. However, the Court in the instant case finds that there is more than just dilatoriness in the filing of the inventory and reports, in that the failure to perform the acts as required by statutes and rules of the Court has caused general confusion and mismanagement of the estate. This Court cannot tolerate such actions upon the part of a fiduciary who, in effect, is acting as an arm of the Court.”\nFurther reasons for the court’s action are apparent in the court’s remarks incident to the denial of the motion for. new trial:\n“THE COURT: The Court is very aware of the effect that such accusation had upon Mr. Downing, and the court hates to make such an order for that reason. However, as the court stated in its original opinion, I think this is more than just dilatoriness in filing reports and inventories; it has been failure to perform acts required by statute and rules of court which has caused general *350confusion. It isn’t one or two particular acts, but it has been continuous throughout administration of the estate, and the court is therefore going to deny your petition to alter judgment and for new trial.”\nOur statute, C.R.S. 1953, 152-10-& (2), vests the county court with discretion to remove a fiduciary “ * * * or for any other good and sufficient reason in the opinion of the court.”\nWhile the trial court’s finding that there was no evidence establishing fraud or waste is supported by the record, we cannot say that the evidence was insufficient to overcome the principle contended for by Downing, namely, that mere dilatory filing of itself does not provide a basis for removal of a fiduciary. In Re Meyers Estate, 130 Cal. App. (2d) 145, 278 P. (2d) 471; In Re Buchman, 123 Cal. App. (2d) 546, 267 P. (2d) 73; In Re Hartt's Estate, 75 Wyo. 305, 295 P. (2d) 985; Willoughby v. Willoughby, 203 Ala. 138, 82 So. 168; In Re Feldman’s Estate, 134 Ore. 33, 292 Pac. 1029.\nThe governing principle is that expressed in the following decisions: In Re Thomas Estate, 26 Colo. 110, 56 Pac. 907; Shore v. Wall, 22 Colo. App. 146, 122 Pac. 1124, and Smith v. Smith, 81 Colo. 411, 255 Pac. 985. These cases recognize that the probate court is vested with full discretion in the area of removal of fiduciaries and its determination on disputed facts will not be disturbed absent a showing of abuse of discretion. In accord with this ruling is our recent decision in Canady v. Kauffman, No. 18,264, 140 Colo. 165, 342 P. (2d) 1027, decided August 17, 1959.\nConcluding as we do that the evidence is sufficient to support the county court’s judgment and that there was therefore no abuse of discretion, the judgment should be and it is hereby affirmed.\nOn consideration of the petition for rehearing it is ordered that the former opinion herein be withdrawn and this opinion substituted. Petition for rehearing is denied.\n", "ocr": true, "opinion_id": 7828694 } ]

[ "151 Colo. 149", "376 P.2d 685" ]

[ { "author_str": "Sutton", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOpinion by\nMr. Justice Sutton.\nThis is a class action concerning the interpretation of the Commercial Fertilizer Act of 1949 as amended in 1959 (C.R.S. ’53, 6-13-3 et seq.) which statute requires the licensing of dealers in commercial fertilizers.\nPlaintiffs in error were plaintiffs in the trial court and will be referred to as “Plaintiffs”; defendants in error were defendants and will be referred to as the “Commissioner” or the “State” as appropriate.\nThe following question of law is the sole point in issue:\n*151“Is ‘manipulated manure,’ as defined by Chapter 6, Article 13, Colorado Revised Statutes, 1953, a ‘commercial fertilizer’ as defined by that statute, so as to render the suppliers of manipulated manures subject to the inspection fees provided for in Chapter 6, Article 13, Section 6, sub-section (1) of that Statute?”\nThe complaint alleges that plaintiffs are dealers in organic fertilizer materials and are manure manipulators within the terms of the statute since they process animal and vegetable manures by drying and grinding and then selling or distributing their products to the public. They assert that, except for the new five dollar licensing fee required of manipulators by the 1959 amendment, the statute requiring registration of each grade and brand of commercial fertilizer and the payment of a 25c per ton inspection fee thereon, has no application to them. They sought a refund of all fees “illegally and wrongfully extracted”; an injunction; a declaratory judgment declaring the Commissioner’s interpretation of the statute invalid; and requested general relief.\nThe case being at issue, was tried on stipulated facts which included an agreement that if the findings were for the plaintiffs, “any of said inspection fees paid under protest by any of the plaintiffs,” would be ordered refunded. The judgment was in favor of the Commissioner.\nA careful review of the statute as applied to the facts disclosed by the record convinces us that the trial court was in error.\nThe obvious purpose of the statute as first adopted was that of preventing abuses in the sale of unregulated commercial fertilizers. The Attorney General admitted in oral argument that though the statute is a police measure, as to the products here concerned “no public health, safety, or morals question” is involved. It is important to note that the parties had also expressly stipu*152lated that plaintiffs do not compound their fertilizers with other materials.\nThe primary difficulty is that the statute both before and after the 1959. amendment, in 6-13-3 entitled “Definitions” states in pertinent part “(1) The term fertilizer material means any substance containing water-soluble nitrogen, available phosphoric acid, or water-soluble potash used primarily as a plant nutrient and for compounding mixed fertilizer except unmanipulated animal and vegetable manures.” (Emphasis supplied.)\nA reading of the balance of the statute, before the 1959 amendment, demonstrates that it was not then the legislative intent to regulate manipulated natural fertilizers when they are only dried and ground and when no chemicals have been added thereto. For example, the title of the act itself relates only to “Commercial Fertilizers” and 6-13-1 states that the article is to be known as “The Commercial Fertilizer Law of 1949”; 6-13-4 concerns the registration of brand names and grades and requires chemical analysis. This relates specifically and only to “commercial fertilizer or soil amendments,” the latter not being of concern in this action. And, 6-13-3 in its many definitions includes one for “commercial fertilizer” stating [in (3)] that it “* * * includes mixed fertilizers only of nitrogen, phosphoric acid and potash quality, either singly or in combination.” “Mixed fertilizers” had prior thereto been defined [in (2)] as follows:\n“The term mixed fertilizer means only water-soluble nitrogen, available phosphoric acid or water-soluble potash in a combination of mixture.”\nThe statute also required labeling of all commercial fertilizers offered for sale or distributed (6-13-5); the sources from which the three named chemicals are derived [6-13-4 (1) (d)]; and that “The plant food content of each and every brand of commercial fertilizer or soil amendment must remain uniform for the (one year) period of registration.” [6-13-4 (3)].\n*153Common sense, as well as the rules of statutory construction, dictate that no farm yard type of fertilizer, which by its very nature is chemically unstable and uncertain in mineral content, was intended to be included in this statute before the 1959 amendment. In addition, it would appear that it is not reasonably practical to determine the chemical content of a ton of natural fertilizer. This is true whether such natural fertilizers are sold by the farmer or rancher in their original state or whether they are first dried, and then ground by him or by a dealer. The general legislative intent, notwithstanding the language of the exception as set forth in 6-13-3 (1), clearly did not contemplate regulation of natural uncompounded manipulated manures. What the statute did intend to cover was a compounding or mixing of chemical ingredients (as distinguished from natural fertilizers) either together or with other substances to create what are generally known as “commercial fertilizers.” The wording and terms used recognize that natural animal and organic fertilizers are not commercial fertilizers as known in the trade or in common usage. By this construction the legislative intent obvious on the face of the statute is carried out.\nWe turn now to the 1959 amendments and the question of whether they make sufficient changes from the original purpose of the act so as to place plaintiffs under the rigors of 6-13-4 relating to registration, brand names, chemical analysis, chemical source disclosures and uniformity as well as subjecting them to payment of the inspection fees for commercial fertilizers under 6-13-6.\nBroadly speaking, and, as pertinent here, the 1959 amendments amended 6-13-3 et seq. as follows:\n6-13-3. “Definitions” were enlarged upon to further define “unmanipulated manures” [6-13-3 (6)]. “Manipulated manures” [6-13-3 (7) (a)] as well as a “manipulator” [6-13-3 (8)] are both defined for the first time.\nIt is subsections (7) (a) and (b), however, that now cause the difficulty, (a) defines “manipulated manures” *154as we have noted and (b) provides that these manures must guarantee the minimum percentages of “total nitrogen, available phosphoric acid, and soluble or available potash” in multiples of half percentages. As previously stated we are persuaded that before the 1959 amendment the statute could not, nor was it intended, to apply to the products of these plaintiffs. We believe that 7 (a) standing alone is broad enough to include these plaintiffs to require their payment of a license fee. It is evident, however, that the application of (b) is limited to commercial fertilizers.\nThe judgment is reversed and the cause remanded to the trial court with directions to determine the amounts of inspection fees, if any, paid by plaintiffs under protest, and to order a refund thereof with statutory interest and cost.\nMr. Justice McWilliams and Mr. Justice Pringle concur.\n", "ocr": true, "opinion_id": 7829173 } ]

[ "152 Colo. 266", "381 P.2d 259" ]

[ { "author_str": "Moore", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMr. Justice Moore\ndelivered the opinion of the Court.\nWe will refer to the parties as petitioner and respondents. This is an original proceeding in which petitioner seeks an order of this court directing the respondents to vacate an order entered in an action pending in the respondent court, by which petitioner was directed to deposit the sum of $28,066.33 in the registry of said court. Based on the facts alleged in the petition we issued a rule to show cause, and respondents have filed their answer.\nThe pertinent facts, concerning which there is no dispute, are as follows: Metal Fabricators, Inc. brought an action in the district court of Jefferson county seeking to foreclose a mechanic’s lien on real estate owned by petitioner. Numerous parties were made defendants in said action and among them was the general contractor with whom petitioner had contracted for the erection of improvements on the real estate.\nAt a pre-trial conference held January 29, 1963, it was made to appear that the contract between petitioner and its general contractor made provision for the retention by petitioner of 10% of the total amount due the contractor until completion and acceptance of the improvements. The petitioner filed its “Third-Party Complaint” against said, contractor and is resisting the claim that it owes any sum of money to the contractor under the retention clause. Petitioner alleges that the contractor is indebted to it in a considerable sum as damages for breach of contract.\nAt the pre-trial conference there was no agreement or stipulation by petitioner to deposit any money in the registry of the court. Deposit of said money was suggested by counsel for the contractor. At the time the order was entered the respondent judge stated, inter alia:\n“All right. I don’t know whether I can do this or not. But I think it probably should be here for the benefit *268of this. $28,066.33 will be deposited in Court until the trial is disposed of. * * * ”\nThe respondent court ordered that petitioner deposit the money within fifteen days from January 29, 1963. Thereafter, and in apt time, petitioner filed in said action its “Motion to Vacate Order of January 29, 1963.” The respondent judge declined to hear said motion, having shortly thertofore entered an order as follows:\n“Motion for re-hearing matters ruled upon at PreTrial conference held January 29, 1963, is hereby dispensed with as such would be denied.”\nThereupon petitioner invoked the original jurisdiction of this court by filing its petition for relief as above indicated.\nRespondents attempt to justify the order requiring petitioner to deposit the money in the registry of the court under the provisions of Rule 16, R.C.P. Colo., which is captioned “Pre-Trial Procedure: Formulating Issues.” Counsel for respondents assert, inter alia, that:\n“The Respondents, in entering the Order of which Petitioners herein complain, did so at Pre-Trial Conference pursuant to Rule 16, Colorado Rules of Civil Procedure, and were acting within the jurisdiction and broad discretionary powers of the Trial Court at Pretrial Conference.”\nWe think it sufficient to say that there is no authority conferred upon any trial court by Rule 16 to order a defendant to pay into the registry of court the amount of a claim asserted against him when such defendant denies that he is indebted to the claimant in any sum and asserts that said claimant is in fact indebted to him. The order of January 29, 1963, directing petitioner to deposit $28,066.33 in the registry of respondent court, should be forthwith vacated and set aside.\nThe rule is made absolute.\nMr. Justice Sutton not participating.\n", "ocr": true, "opinion_id": 7829256 } ]

[ "158 Colo. 64", "404 P.2d 520" ]

[ { "author_str": "Moore", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMr. Justice Moore\ndelivered the opinion of the Court.\nWe will refer to the parties by name. On February 10, 1961, Opal S. Sanders, the former wife of Merritt D. Blades, obtained a judgment against him in the amount of $3,120.09 in the district court of the City and County of Denver. An execution issued to enforce collection of *65the judgment to which the sheriff made a nulla bona return.\nOpal then commenced another action in the. nature of a creditor’s bill in which she sought to impress a lien on certain real estate, the legal title to which stood in the name of Clara E. Blades. By foreclosure thereof she sought to satisfy the above-mentioned judgment. Generally, it was alleged in the complaint that a conveyance of the real estate from Merritt to his wife Clara was executed, delivered, and recorded in order “* * * to hinder, delay and defraud the creditors of him the said defendant, Merritt D. Blades, and particularly in order to hinder, delay and defraud the plaintiff * *\nThe trial court, after trial of the issues in the case, entered judgment and decree in favor of the plaintiff impressing upon the real estate in question a lien for the amount due under the judgment theretofore entered against Merritt D. Blades. It also ordered sale of an undivided one-half interest in the real estate unless the judgment was satisfied within ten days. By writ of error Merritt and Clara now seek review of the judgment.\nFollowing the entry of the judgment and decree of the trial court, it affirmatively appears from the motions and briefs filed by counsel with the clerk of this court, that the judgment obtained by Opal S. Sanders in the first case filed by her has been voluntarily satisfied, and that the lien with which the property involved in this action was impressed has been fully released.\nThus all issues properly before this court for consideration on the record and briefs submitted are now moot. Under the rule announced in Denver Buick, Inc., et al. v. City and County of Denver, et al., 136 Colo. 484, 319 P.2d 216, and Board of Adjustment of Adams County, et al. v. Iwerks, et al., 135 Colo. 578, 316 P.2d 573, the writ of error is dismissed.\n", "ocr": true, "opinion_id": 7829734 } ]

[ "161 Colo. 351", "422 P.2d 49" ]

[ { "author_str": "Day", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOpinion by\nMr. Justice Day.\nThe sole matter for determination on this writ of error is whether the evidence supports the order of the Industrial Commission entered after hearing on a claim filed by plaintiff in error. The latter will be referred to as the claimant.\nUpon review, the district court of the City and County of Denver affirmed the order of the Commission denying the claim, and it is to that judgment that writ of error is prosecuted.\nClaimant is a physician specializing in the practice of orthopedics and orthopedic surgery. He suffered a heart attack which in medical terms was characterized as “acute auterior myocardial infarction.” He based his claim on “overwork and overexertion while associate was on vacation.” Claimant testified to having had a very busy week prior to the onset of the attack on a Friday. He described what was involved in seeing, treating and operating upon patients. However, the testimony also revealed that his work, on the whole at that time, was little different from his usual routine. For example, he had his usual day off on Wednesday. Admittedly the day before — a Tuesday — was apparently a relatively light one. One of the medical experts, viewing • the activities as related by claimant, stated the following:\n“In reviewing this case from the standpoint of consideration of possible causal factors related to the coronary artery disease certain principles are to be kept in mind. The coronary artery disease which existed prior to the acute coronary occlusion is of long standing in this individual and probably has existed for some 20 years. The factors which probably underlie the development of a coronary artery disease are heredity, diet, emotions, etc. over a long period of time. Dr *353Markheim has been very industrious and has worked exceedingly hard in the last 10-15 years. He set high goals for success in starting his orthopedic practice at a somewhat older age than was usual. I can find no particular factors on the day that the coronary occlusion actually complicated his long standing coronary artery disease that might have been causally related. It is hardly possible that the increased tempo of his work in the week or so preceding the actual coronary occlusion weighed materially in the actual occlusion which began on July 14, 1961.”\n We hold that the aforementioned testimony is sufficient to support the Commission’s findings; and, as we have repeatedly held in so many cases that we no longer cite authority in support thereof — this court will not overturn the findings of fact of the Commission when supported by the record.\nThe judgment is affirmed.\nMr. Justice McWilliams and Mr. Justice Schauer concur.\n", "ocr": true, "opinion_id": 7829977 } ]

[ "164 Colo. 261", "434 P.2d 123" ]

[ { "author_str": "Sutton", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOpinion by\nMr. Justice Sutton.\nKilpatrick, who was plaintiff in the trial court, obtained a judgment against Reynolds Development Company in the amount of $2,434.98 plus interest of $206.04. The claim arose out of certain work done by Kilpatrick on a large apartment complex that had financial difficulties during its construction. On May 4, 1962, *262Kilpatrick caused a garnishee summons to be served upon Security Trust as the “successor” of Reynolds under a deed and trust agreement. Security answered the garnishee interrogatories indicating that it had in its possession no money or property belonging to Reynolds, nor was any amount owning Reynolds from Security. On May 17, 1962, Kilpatrick filed a traverse of the garnishee’s answer. The ensuing trial resulted in a judgment in favor of Kilpatrick in the amount of $554.49 which the trial court found was the net amount on deposit with Security’s management company at the time of the garnishment.\nFor reversal Security urges three grounds, however, we need only consider the first one which is:\nThat Kilpatrick failed to sustain its burden of proof in showing that the answers to the garnishee interrogatories were incorrect.\nAs we view it, the trust agreement in question provides a method whereby Security and Kobey were to borrow money and attempt to finish the project, settle with creditors and account for the assets. The Traverse of Garnishee Answer alleges, however, that the conveyances of the properties involved to Security were done “for the purpose of hindering and delaying the efforts of the creditors * * * to be satisfied in their claims” and “were not in fact bona fide.” It further asserted that some interest in the assets “is due and owing” to Reynolds. However, we note that no such finding was made by the trial court which merely determined from an accounting that it had ordered that “after all expenses were paid there were at the time of the Garnishee Summons and Answer net receipts on deposit * * * of $554.49 * * Thus in this posture of the case we need not decide whether it is proper to attack collaterally purported fraudulent conveyances in a garnishment action since no fraud or improper transactions were found by the trial court, and we must decide the issue on Security’s first ground of error.\n*263This record discloses that no proper showing has been made that the $554.49 on hand or any part thereof was the property of or obtainable by Reynolds. The net effect of the evidence is that it was money being held for the purposes of Security’s agreement and could not have been obtained, by Reynolds, absent a setting aside of the conveyances; a fortiori it cannot be set over to any of his creditors. Green v. Green, 108 Colo. 10, 113 P.2d 427 (1941). Thus Kilpatrick failed to sustain its burden of proof in showing that the garnishee answers were incorrect.\nThe judgment is reversed and the cause remanded with directions to dismiss the garnishment.\nMr. Chief Justice Moore, Mr. Justice Pringle and Mr. Justice Kelley concur.\n", "ocr": true, "opinion_id": 7830275 } ]

[ "172 Colo. 486", "474 P.2d 206" ]

[ { "author_str": "Groves", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOpinion by\nMr. Justice Groves.\nThis is an extradition case. The plaintiff in error will be referred to as the petitioner. The district court ordered that he be returned to Kansas, the demanding state, to commence serving a prison sentence. We affirm.\nThe petitioner was convicted of third degree forgery and another offense. He appealed the convictions to the Kansas Supreme Court. Upon the posting of bond the execution of sentence was stayed pending the appeal. The conviction was affirmed by the Kansas Supreme Court on July 13, 1968; and on August 16, 1968, it issued mandate to the Kansas trial court to order execution of the sentence. On September 5, 1968, the Kansas trial court ordered his bond forfeited for failure to present himself to the court or the sheriff for execution of the sentence and ordered a warrant issued for petitioner’s arrest. A demand for extradition was made by the Governor of Kansas and honored by the Governor of Colorado.\nThe petitioner urges that he should not be extradited for two reasons: (1) that the requisition from the Governor of Kansas does not comply with C.R.S. 1963, 60-1-3; and (2) that he did not violate any of the conditions of his bond.\nThe portion of C.R.S. 1963, 60-1-3 material here reads as follows:\n“Form of demand. — No demand for the extradition of *488a person charged with crime in another state shall be recognized by the governor unless . . . accompanied by ... a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed... has broken the terms of his bail. ‘..”\nThe petitioner is claiming that there is no statement by the Kansas Governor that the petitioner had broken the terms of his bail. The first page of the requisition, which is the formal demand from the Governor of Kansas, states that Davis “stands convicted and under sentence . .. and fled from justice.” Included within the requisition are copies of the mandate of the Kansas Supreme Court and the order for forfeiture of bond and alias warrant issued by the Kansas trial court. All of these documents are certified by the Governor of Kansas to be authentic and duly authenticated according to the laws of Kansas. The order recites in part as follows:\n“WHEREAS, the defendant has not appeared before this Court or presented himself to the Sheriff of Sedgwick County, Kansas to abide the judgment of this Court and the Supreme Court of the State of Kansas. This Court thereby orders his bond forfeited and further orders a warrant issued for said defendant.”\n The petitioner correctly states that under Colorado law the extradition statutes must be strictly construed as they are in derogation of the common law. Nevertheless, we conclude that the documents certified by the Governor of Kansas, together with his demand, sufficiently comply with our statute requiring “a statement by the executive authority of the demanding state that the person claimed... has broken the terms of his bail.” See Pecnik v. Blackburn, 132 So.2d 604 (Fla. 1961), and Huff v. Ayers, 6 N.J. Super. 380, 71 A.2d 392 (1950).\nThe petitioner’s second argument is that, despite the assertions of the requisition, he was in fact not in *489violation of his bond and should have been allowed to prove this as a defense to extradition. We disagree. In Self v. People, 133 Colo. 524, 297 P.2d 887 (1956) the requisition stated that Self was a parole violator. This court affirmed the trial court’s refusal to consider evidence that he had not in fact violated his parole. It was there stated that this was an issue for the requisitioning state to decide, the asylum state having no jurisdiction to consider the question. The same is true in this case. When the court in Kansas forfeited the petitioner’s bond, he became a fugitive within the meaning of the extradition laws. Whether it was wrongfully revoked is an issue between the petitioner and the State of Kansas, over which the courts of Colorado have no jurisdiction. See Tinsley v. Woods, 135 Colo. 590, 313 P.2d 1006 (1957) and Travis v. People, 135 Colo. 141, 308 P.2d 997 (1957).\nJudgment affirmed.\nMr. Justice Day, Mr. Justice Hodges and Mr. Justice Kelley concur.\n", "ocr": true, "opinion_id": 7830709 } ]

[ "175 Colo. 364", "488 P.2d 899" ]

[ { "author_str": "Erickson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMr. Justice Erickson\ndelivered the opinion of the Court.\nGeorge Washington Smeltzer was charged with assault with a deadly weapon and assault to murder and entered a plea of not guilty and not guilty by reason of insanity. On March 1, 1967, he was found not guilty by reason of insanity in a trial before a jury and was committed to the Colorado State Hospital. Thereafter, on December 10, 1968, pursuant to C.R.C.P. 106(a)(4), he filed a petition for writ of habeas corpus alleging that he was entitled to release pursuant to 1965 Perm. Supp., C.R.S. 1963, 39-8-4 (13), which provides that:\n“(13) (a) Any defendant committed to or held in the state hospital at Pueblo, or other institution provided by law, by virtue of a verdict and finding of not guilty by reason of insanity as provided in sections 39-8-1 through 39-8-5 may petition the committing court for discharge or for conditional release by writ of habeas corpus. Upon a hearing in the committing court on such writ such defendant must prove, by a preponderance of evidence, that:\n“ (b) He has no abnormal mental condition which would be likely to cause him to be dangerous either to himself or to others or to the community in the reasonably foreseeable future; and\n“(c) That the superintendent of the hospital or institu*366tion where such defendant is held acted arbitrarily and capriciously in refusing to certify the defendant as being sane as defined by this section, and that such defendant is eligible for conditional release; and'\n“(d) That such defendant is entitled to be discharged or that he is entitled to conditional release.”\nHabeas corpus is a civil action, and the proceedings are governed by the Colorado Rules of Civil Procedure. Oates v. People, 136 Colo. 208, 315 P.2d 196 (1957). After the writ of habeas corpus issued, the petitioner refused to be examined at either the University of Colorado Psychiatric Hospital or at the Colorado State Hospital at Pueblo, Colorado. The respondents then moved for an order compelling the petitioner to submit to a mental, examination, in- accordance with the provisions of C.R.C.P. 35, and the motion was granted.1\nThe issues in the habeas corpus petition were' tried by a jury. Six psychiatrists testified for the petitioner and stated that in their opinion the petitioner was hot suffering from any abnormal mental condition which would be likely to cause him to be harmful to himself and to others in the foreseeable future. In short, the petitioner’s witnesses said that the petitioner was sane and was not dangerous to himself or to anyone else. Three psychiatrists and one psychologist, all of whom were members of the Colorado State Hospital staff, testified to the contrary. The petitioner offered no evidence to support his allegation that the superintendent had acted arbitrarily and capriciously in refusing to certify him as being restored to reason. Based on the petitioner’s failure to either plead facts or to offer evidence to support the conclusion in the habeas corpus petition that *367the superintendent had acted arbitrarily and capriciously, the. respondents made motions to dismiss and for a directed verdict at the close of the evidence and after the verdict was returned, in accordance with C.R.C.P. 50 (a) and (b). The trial court denied the respondents’ motions to dismiss, even though the record is devoid of evidence to support the conclusion that the superintendent acted arbitrarily and capriciously, and no facts were pleaded. The jury’s verdict was rendered by its answers to the following interrogatories:\n“1. Do you find that the Petitioner has an abnormal mental condition which would be likely to cause him to be dangerous either to himself or to others or to the community in the reasonably foreseeable future?\n[Answer] “No.”\n“2. Do you find that the Superintendent of the Colorado State Hospital, where such petitioner is held, acted arbitrarily and capriciously in refusing to certify the petitioner as being sane as defined by Instruction No. 3 and that such petitioner is eligible for conditional release?\n[Answer] “Yes.”\n“3. Is the petitioner entitled to be discharged?\n[Answer] “No.”\n“4. Is the petitioner entitled to a conditional release?\n[Answer] “Yes.”\nBased upon the jury’s verdict, the trial court ordered that the petitioner be conditionally released, and from that order the respondents have prosecuted this writ of error.\nThe sole issue before this Court is whether there was some evidence to support the jury’s finding that the superintendent’s refusal to certify the petitioner as sane was “arbitrary and capricious.” The legal meaning of the words “arbitrary and capricious” was set forth by the court in Robertson v. Cameron, 224 F.Supp. 60 (D.C. 1963), in construing a statute which is similar to ours [D.C. Code 1961, § 24-301 (c, g)]. There, the court held *368that the terms “arbitrary and capricious” referred to behavior motivated by personal notion or whim, rather than action prompted by a reasonable or rational basis. The court also held that the superintendent need not have acted in bad faith to be guilty of “arbitrary and capricious” conduct. Thus, the mere fact that a superintendent’s action is well-intentioned will not save it from being “arbitrary and capricious” where it is shown to be unsupported by evidence relating to the petitioner’s mental condition.\nIn this case, the superintendent’s refusal to certify the petitioner as sane was supported by the testimony of four members of the Colorado State Hospital staff. This testimony clearly provided a rational basis for the superintendent’s action. Since no evidence was presented to show that the superintendent’s decision was motivated by personal notion or whim, we conclude that the testimony presented on the petitioner’s behalf did not warrant his conditional release and that the respondents’ motion for a directed verdict should have been granted. Accord, Parker v. People, 108 Colo. 362, 117 P.2d 316 (1941); Pigg v. Patterson, 370 F.2d 101 (10th Cir. 1966); Foller v. Overholser, 292 F.2d 732 (C.A. D.C. 1961); Overholser v. Leach, 257 F.2d 667 (C.A. D.C. 1958).\nAccordingly, we reverse the Order of the District Court and direct that the District Court discharge the writ of habeas corpus.\n\nFor authorities permitting the trial court to order psychiatric examination when the plea of not guilty by reason of insanity is entered, see Battle v. Cameron, 260 F.Supp. 804 (D.C. D.C. 1966); Pope v. United States, 372 F.2d 710 (8th Cir. 1967); Alexander v. United States, 380 F.2d 33 (8th Cir. 1967); United States v. Albright, 388 F.2d 719 (4th Cir. 1968). See also, State v. Myers, 220 S.C. 309, 67 S.E.2d 506, 32 A.L.R.2d 434 (1951). Cf., French v. District Court, 153 Colo. 10, 384 P.2d 268 (1963).\n\n", "ocr": true, "opinion_id": 7830877 } ]

[ "184 Colo. 346", "520 P.2d 109" ]

[ { "author_str": "Hodges", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMR. JUSTICE HODGES\ndelivered the opinion of the Court.\nThis appeal was initially filed in the Colorado Court of Appeals but was transferred before judgment to this court because the constitutionality of several sections of the Colorado Springs building code were in issue.\nThe appellant, Precision Heating & Plumbing, Inc., is engaged in business as a plumbing contractor. Its plumbing license was suspended by the appellee, Board of Review, for alleged violations of the building code. The appellant thereupon filed a complaint in the trial court under C.R.C.P. 106 challenging the suspension of its license and alleged, among other things, that the sections of the building code under which it was suspended are unconstitutional.\nThe trial court ruled that the pertinent sections of the building code are constitutional and it therefore upheld the power of the board of review to suspend the plumbing license of appellant.\nThe same sections of the building code which are involved in this case were the subject of Junglen v. Board of Review, 184 Colo. 59, 518 P.2d 826 (1974) which decision was announced after all the briefs in this case had been filed. In Junglen, we declared that sections 404(A)(d) and Section *348407 of the building code, which are the same sections challenged here, were unconstitutional as being overbroad, vague, ambiguous and indefinite.\nThe appellant and the appellee have now represented to this court that Junglen is the governing precedent in the case at bar. We agree. The judgment of the trial court is therefore reversed and this cause is remanded for entry of a judgment vacating the suspension of the appellant’s license.\n", "ocr": true, "opinion_id": 7831293 } ]

[ "185 Colo. 47", "521 P.2d 765" ]

[ { "author_str": "Day", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOpinion by\nMR. JUSTICE DAY.\nThis is an appeal based on a conviction obtained on circumstantial evidence and the jury’s inferences of guilt deduced therefrom. As has been held so many times that citation of authority is not necessary, this court on review will ordinarily not disturb the jury’s verdict if supported by the evidence. We affirm.\nAppellant was convicted of grand theft and conspiracy to commit a felony. The evidence' established that appellant, who was a .competent automobile body repairman and mechanic, owned a red 1965 Plymouth which was in such a state of disrepair as to be unusable as well as unsightly. Indeed, before the theft of the parts alleged to have been stripped from a car of similar make, appellant’s car had a damaged front end, a damaged left door, worn tires and a nonfunctional radiator. He disclosed to an informant witness that he intended to steal a car to replace his defective parts, that he had located such a car and needed some assistance in obtaining it.\nThe victim’s car was virtually identical to appellant’s car save for the color — which was gold instead of red — and was *49in good condition. The car was taken the day following appellant’s pronouncement of his intention to obtain a car for needed parts. It was eventually located four blocks from appellant’s garage and was stripped to the extent that the car was missing a front end, a left front door, a radiator and four good tires.\nAppellant’s car, on the other hand, was completely, yet coincidentally, metamorphized. In place of the damaged parts, a used radiator was in place. A newly painted door and front end, which investigation revealed to be red paint over gold and of the same serial number as the victim’s car, replaced the old. Good tires had replaced the worn ones.\nI.\nAppellant first contends that the trial court erred in refusing to give a tendered instruction on his theory of the case. The instruction, suffice it to say, was a lengthy self-serving summary of defendant’s testimony. The trial court gave an instruction founded on the evidence which set forth defendant’s theory of the case that he had purchased the parts from persons he believed to be connected with an auto-salvage firm and did not know they had been stripped from a stolen car. The instruction given by the court was adequate.\nII.\nThe appellant next argues that the admission into evidence of photographs of the two automobiles was error, first, because no foundation was laid prior to their admission and, second, because the photographs were irrelevant. With regard to relevance, the argument is so specious it does not merit discussion. As to the foundation, the record is replete with evidence that such foundation was presented. Dolan v. Mitchell, 179 Colo. 359, 502 P.2d 72 (1972).\nIII.\nAs his third ground for reversal, appellant argues the trial court erred in failing to order the district attorney to name the co-conspirators on the information. Although co-conspirators may be alleged to be unknown in a conspir*50acy count, People v. Byrnes, 117 Colo. 528, 190 P.2d 584 (1948), we note that the defendant waived the opportunity to preserve the issue when he neglected to make his motion to compel disclosure at the proper time. Crim. P. 12(b)(2).\nIV.\nWe have examined the other arguments, including the assertion that the evidence was insufficient to go to the jury, and we deem them to be without merit.\nThe judgment is affirmed.\nMR. JUSTICE HODGES, MR. JUSTICE LEE and MR. JUSTICE ERICKSON concur.\n", "ocr": true, "opinion_id": 7831314 } ]

[ "185 Colo. 157", "522 P.2d 726" ]

[ { "author_str": "Hodges", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMR. JUSTICE HODGES\ndelivered the opinion of the Court.\nWe granted certiorari to review the decision of the Court of Appeals in Spar Consolidated Mining v. Aasgaard, 33 Colo. *158App. 35, 516 P.2d 127 (1973). Our review, however, is limited to Section IV of that decision which deals with an issue concerning respondent Spar’s title to real estate as opposed to petitioner Aasgaard’s claim of title. However, the only issue involved pertains to right of possession and not to title. Therefore, the Court of Appeals’ reference to the application of either the doctrine of res judicata or estoppel for a determination of respondent Spar’s title to the real estate in question was not only unnecessary, but also erroneously indicates that a result reached in a prior county court action in unlawful detainer may have conclusive effect on the question of title in a later district court action involving the same real estate.\nThe trial court’s judgment actually did no more than determine that respondent Spar had the possessory right to the real estate in question and that petitioner Aasgaard consequently did not have such a right. The amended complaint was for unlawful detainer and its sole prayer for relief was for a judgment against Aasgaard for recovery of possession of real property. This trial court judgment was properly affirmed by the Court of Appeals but for the wrong reason. A few background facts will suffice to show what occurred and why title to the real estate was not the issue upon which this unlawful detainer case is determinable.\nIn 1967, respondent Spar’s predecessor in title brought an action in the Pitkin County Court against petitioner Aasgaard in unlawful detainer pursuant to C.R.S. 1963, 58-1-4. Defendant. Aasgaard was alleged to be in unlawful occupation of a shack located on land owned by the plaintiff. He failed to answer or appear. Upon his default being entered, the plaintiff’s motion for judgment of possession was granted. In executing on this judgment, the sheriff padlocked the shack. Thereafter, Aasgaard reoccupied the shack.\nIn 1971, respondent Spar brought its unlawful detainer action in the district court against petitioner Aasgaard, whose only significant defense was that he had gained ownership to the land by virtue of adverse possession. The district court *159found that petitioner Aasgaard had not established adverse possession. Accordingly, it entered a judgment in respondent Spar’s favor for possession of the premises.\nSpar’s complaint in the trial court alleged as a basis for a requested judgment of possession that it owned the premises. Aasgaard’s answer denied the allegation of ownership and affirmatively alleged Aasgaard’s ownership by virtue of adverse possession. At the conclusion of the evidence, the trial court made findings to the effect that the shack, which Aasgaard occupied, was on land owned by Spar and that Aasgaard had “no interest in or right to possession of any part of. . .” this land.\nFrom the record, there is prima facie evidence to show Spar’s possessory right to the property by virtue of its ownership by conveyance from its predecessor in title. Unfortunately, the trial court made a finding which could be interpreted to mean that Spar’s title was established'in this case by the previous Pitkin County Court judgment of 1967. It was for this reason that the Court of Appeals in its opinion apparently deemed it necessary to discuss res judicata or estoppel with reference to that previous county court judgment.\nIn Colorado, a forcible entry and detainer action in a county court is limited to the question of possession, and title to the land involved may not be an issue for resolution there. Colo. Const. Art. VI, Sec. 17. See also Sloniger v. Raines, 120 Colo. 339, 208 P.2d 941 (1949); Beman v. Rocky Ford National Bank, 100 Colo. 64, 65 P.2d 708 (1937); and Potts v. Magnes, 17 Colo. 364, 30 P. 58 (1892). Therefore, since the Pitkin County Court in the 1967 case had no jurisdiction to try title, its default judgment for possession could have no conclusive effect in any later district court action where title to the land involved is an issue.\nThe record clearly shows that the trial court’s judgment for possession in favor of Spar is supported by evidence and that the previous Pitkin County Court judgment for posses*160sion in favor of Spar’s predecessor in title against petitioner Aasgaard had no bearing on the ownership of the land involved. We agree with the result reached by the Court of Appeals when it affirmed the trial court’s judgment for possession in favor of respondent Spar.\nJudgment affirmed.\nMR. JUSTICE KELLEY and MR. JUSTICE GROVES do not participate.\n", "ocr": true, "opinion_id": 7831320 } ]

[ "189 Colo. 421", "542 P.2d 371" ]

[ { "author_str": "Kelley", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMR. JUSTICE KELLEY\ndelivered the opinion of the Court.\nThis is an appeal by the City of Lakewood, the members of its City Council (City) and the West Alameda Community Baptist Church *423(Church) from a declaratory judgment of the district court declaring invalid an ordinance rezoning certain Church property from “residential-one” to “restricted commercial.” Plaintiffs-appellees, constituting approxiately 90% of the homeowners and residents within a three-block area to the North and East of the subject property, challenged the rezoning ordinance by instituting a proceeding under C.R.C.P. 106(a)(4), and included in their complaint a claim for declaratory and injunctive relief. The City and the Church assert that the district court lacked jurisdiction to entertain an action for declaratory and injunctive relief in this case. We agree and reverse the district court.\nOn March 12, 1973, the City Council conducted a public hearing on the rezoning application of the Church pursuant to the statutory notice and hearing requirements. Sections 31-23-204, 205, C.R.S. 1973. Numerous persons, in support of the application, testified as representatives of religious and civic organizations as to the necessity for low and moderate income housing, particularly for the aged. The plaintiffs-appellees (protestors) had lodged a legal protest prior to the hearing and also were given an opportunity to address the rezoning controversy. At the hearing, counsel for the protestors stated:\n“[There is] no showing that there is any change in conditions in this area....”\n“There is no legal basis for rezoning.. ..”\n“This rezoning is improper, that it would be bad precedent, that it constitutes an invasion of their rights, that it is spot zoning, that in every instance it is not good.”\nNevertheless, the City Council by a vote of 9 - 1 passed the rezoning ordinance, overruling the recommendation of the City Planning Commission that the rezoning application be denied.1\nOn May 18, 1973, some 67 days after passage of the ordinance, the protestors filed their complaint in district court, which was dismissed for failure to join the Church, an indispensable party. The protestors thereupon joined the Church in their amended complaint, filed on September 24, 1973, which was substantially identical to the original complaint as being a claim for review under Rule 106(a)(4) and for declaratory and injunctive relief.\nThe complaint contained the allegation that the rezoning was spot-zoning and not in conformity with the comprehensive plan as required by statute; that in rezoning, the Council was acting in an “arbitrary, capricious, unreasonable, and improper manner”; and that the ordinance was “void and an improper exercise of the police power.”\nThe district court dismissed the claim for Rule 106(a)(4) review because it was not timely filed within 30 days of the enactment of the ordi*424nance, C.R.C.P. 106(b). On the other hand, it granted the protestors a trial de novo to the court on the claims for declaratory and injunctive relief.\nAfter considering the evidence, which consisted solely of the transcripts of testimony before the Planning Commission and City Council, the district judge on May 22, 1974, found the rezoning ordinance to be unsupported by evidence of a change in the character of the neighborhood, “not in conformity with the comprehensive master plan,” “an improper exercise of the City’s police power,” and therefore “unreasonable,” “unconstitutional,” and “invalid.” The City and the Church filed a petition for rehearing on June 3, 1974, which was denied. They then filed their Notice of Appeal on June 26, 1974.\nI.\nIn Colorado the validity of zoning ordinances has been challenged by certiorari review under Rule 106(a)(4), Colby v. Board of Adjustment, 81 Colo. 344, 255 P. 443 (1927), and declaratory relief under Rule 57. Baum v. Denver, 147 Colo. 104, 363 P.2d 688 (1961). On occasion, these forms of relief have been pursued simultaneously. Ford Leasing Development Co. v. Board of County Commissioners, 186 Colo. 418, 528 P.2d 237 (1974).\nThe basis of the analytical distinction in prior zoning cases between the propriety of certiorari review or declaratory relief turned on the characterization of the relief sought by the parties. However, the proper scope of a Rule 106(a).(4) review in zoning cases has not been previously delineated by this court and this issue has been a source of confusion among the district courts of the state. We believe a closer analysis of the type and nature of governmental proceeding involved in enacting a zoning and rezoning ordinance will yield a better reasoned rule to govern the use of certiorari review.\nRule 106(a)(4) provides in pertinent part that certiorari review may be obtained:\n“Where an inferior tribunal (whether court, board, commission or officer) exercising judicial or quasi-judicial functions, has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy. . . . Review shall not be extended further than to determine whether the inferior tribunal has exceeded its jurisdiction or abused its discretion.”\nAlthough our early decisions viewed the enactment of rezoning ordinances as a legislative function, 2 the more recent decisions have held such activity to be a quasi-judicial function and reviewable under Rule 106(a)(4).3 *425In so doing, we have distinguished between the adjudicative process involved in enacting a rezoning ordinance and the legislative process involved in passing the general zoning ordinance. This distinction was concisely drawn by the Supreme Court of Washington in Fleming v. Tacoma, 81 Wash.2d 292, 502 P.2d 327 (1972):\n“Generally, when a municipal legislative body enacts a comprehensive plan and zoning code it acts in a policy making capacity. But in amending a zoning code, or reclassifying land thereunder, the same body, in effect, makes an adjudication between the rights sought by the proponents and those claimed by the opponents of the zoning change. The parties whose interests are affected are readily identifiable. Although important questions of public policy may permeate a zoning amendment, the decision has a far greater impact on one group of citizens than on the public generally.\n“Another feature of zoning amendment decisions, which distinguishes them from other types of legislative action, is their localized applicability. Other municipal ordinances which affect particular groups or individuals more than the public at large apply throughout an entire geographic area within the municipal jurisdiction, whereas ordinances that amend zoning codes or reclassify land thereunder apply only to the immediate area being rezoned.\n“Finally, legislative hearings are generally discretionary with the body conducting them, whereas zoning hearings are required by statute, charter, or ordinance. The fact that these hearings are required is itself recognition of the fact that the decision making process must be more sensitive to the rights of the individual citizen involved.”\nIn order to support a finding that the action of a municipal legislative body is quasi-judicial, all of the following factors must exist: (1) a state or local law requiring that the body give adequate notice to\" the community before acting; (2) a state or local law requiring that the body conduct a public hearing, pursuant to notice, at which time concerned citizens must be given an opportunity to be heard and present evidence; and (3) a state or local law requiring the body to make a determination by applying the facts of a specific case to certain criteria established by law. Colorado Springs v. District Court, 184 Colo. 177, 519 P.2d 325 (1974); Dillon Companies, Inc. v. Boulder, 183 Colo. 117, 515 P.2d 627 (1973); Orchard Court Development Co. v. Boulder, 182 Colo. 361, 513 P.2d 199 (1973); Englewood v. Daily, 158 Colo. 356, 407 P.2d 325 (1965); Kizer v. Beck, 30 Colo. App. 569, 496 P.2d 1062 (1972).\nThe City of Lakewood is a “statutory” city and is governed by the Colorado zoning statutes, section 31-23-201, et seq., C.R.S. 1973, as well as its municipal code. The statute allows municipalities to amend their general zoning ordinance but only after a public hearing is conducted of which the public must be given at least 15 days’ notice in a newspaper of general circulation in the municipality. Sections 31-23-204, 205, C.R.S. *4261973. Further, the statutes grant the power to zone “for the purpose of promoting health, safety, morals, or the general welfare of the community,” section 31-23-201, C.R.S. 1973, and declare the specific criteria to be employed in all zoning decisions:\n“Such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic, floodwaters, and other dangers; to promote health and general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements. Such regulations shall be made with reasonable considerations, among other things, as to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality.”\nTherefore, in the present case, the enactment of a rezoning ordinance pursuant to the statutory criteria, after notice and a public hearing, constituted a quasi-judicial function subject to certiorari review. This rule is in accord with the modern trend in zoning law. See e.g., West v. City of Portage, 392 Mich. 458, 221 N.W.2d 303 (1974); Fasano v. Board of County Comm’rs, 264 Ore. 574, 507 P.2d 23 (1973); Fleming v. Tacoma, supra; R. Anderson, American Law of Zoning § 21.04; E. McQuillan, Municipal Corporations § 25.286(b) (1965 ed.); Comment, Judicial Zoning Amendments — The Product of Judicial or Quasi-Judicial Action, 33 Ohio St.L.J. 130 (1972); Freilich, Fasano v. Board of County Commissioners of Washington County: Is Rezoning an Administrative or Legislative Function? 6 Urban Lawyer vii (1974).\nII.\nWe now consider the proper use of Rule 106(a)(4) in reviewing the granting or denial of rezoning determinations by zoning authorities. We have permitted declaratory relief of zoning matters not reviewable by certiorari. Ford Leasing Development Co. v. Board of County Commissioners, 186 Colo. 418, 528 P.2d 237 (1974); Board of County Commissioners v. Simmons, 177 Colo. 347, 494 P.2d 85 (1972); Morris v. Board of County Commissioners, 150 Colo. 33, 370 P.2d 438 (1962); Baum v. Denver, supra; Regennitter v. Fowler, 132 Colo. 489, 290 P.2d 223 (1955). In each of these cases, except Regennitter, we held that a declaratory judgment was the proper remedy where the general zoning ordinance was being constitutionally attacked as applied to the challenger’s land. Under the earlier rule in Colorado which held that municipal legislative action in rezoning cases was legislative, and therefore not reviewable by certiorari, the only way to secure review of a rezoning determination was by challenging the constitutionality of the entire general zoning ordinance as applied to specific property. In such a circumstance, although the challenge was directed to the specific application of the general zoning ordinance, the real challenge was aimed at the action in denying or granting *427the rezoning. However, as the law now exists, the action of the Lakewood City Council in enacting the rezoning ordinance was quasi-judicial and may be directly attacked by certiorari. The Regennitter case involved the challenge of a variance granted without the notice and hearing required by statute. The court recognized that the review of the record would be inadequate to provide the challengers with an effective remedy, and therefore held that a trial de novo under a declaratory judgment would be required.\nThe result of the line of reasoning outlined in the above paragraph is that Rule 106(a)(4) is now an exclusive remedy to challenge a rezoning determination where the entire general zoning ordinance is not challenged and where a review of the record would be an adequate remedy. See State v. Saint Joseph Superior Court, 238 Ind. 88, 148 N.E.2d 558 (1958); East Chicago v. Sinclair Refining Co., 232 Ind. 295, 111 N.E.2d 459 (1953); South Bend v. Marckle, 215 Ind. 74, 18 N.E.2d 764 (1939). In so holding, we distinguish the scope of judicial review of a challenge to a general zoning ordinance and to a rezoning determination, and premise this distinction upon the different nature of the proceeding involved:\n“Ordinances laying down general policies without regard to a specific piece of property are usually an exercise of legislative authority, are subject to limited review, and may only be attacked upon constitutional grounds for an arbitrary abuse of authority. On the other hand, a determination whether the permissible use of a specific piece of property should be changed is usually an exercise of judicial authority and its propriety is subject to an altogether different test.” Fasano v. Board of County Commissioners, supra.\nThe former involves “a general rule or policy which is applicable to an open class of individuals, interests, or situations” while the latter is concerned with “a general rule or policy [which is applicable] to specific individuals, interests, or situations.” Comment, Zoning Amendments — The Product of Judicial or Quasi-Judicial Action, supra.\nIn a challenge to a general zoning ordinance, the outcome turns on the exercise of the police power as bearing a reasonable relation to the public health, safety, morals or welfare, Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926) while the real issues involved in a rezoning case focus on the reasonableness of City Council’s application of the statutory criteria to the evidence presented. Clark v. Boulder, 146 Colo. 526, 362 P.2d 160 (1961). The determination of whether the Council reasonably applied the statutory criteria in exercising its statutory power to rezone involves a consideration of whether the Council abused its discretion or exceeded the bounds of its jurisdiction and is properly resolved in a certiorari proceeding under Rule 106(a)(4). See Holly, Inc. v. Commissioners, 140 Colo. 95, 342 P.2d 1032 (1959).\nThere is also an important public policy consideration in determining that certiorari is the exclusive remedy in rezoning determinations such as the one in this case. Where the concerned parties have notice of a public *428hearing in which they may participate, it is not unfair to require that they litigate their challenge, be it constitutional or statutory, within the time limits established in Rule 106(b).\nThe present controversy has continued for over two years, the effect of which is that the surrounding landowners, the Church, the City and many other interested persons and organizations have been living under a cloud of uncertainty which is not compatible with modern comprehensive planning. The interests of all will be served if a challenger to a rezoning determination must prosecute all his causes in one certiorari action and bring it within 30 days of “final action” unless a statute or municipal ordinance provides otherwise. C.R.C.P. 106(b).\nIII.\nThe failure to bring a Rule 106(a)(4) proceeding within 30 days of the enactment of the Lakewood rezoning ordinance was a jurisdictional defect under C.R.C.P. 106(b).4 Hidden Lake Development Co. v. District Court, 183 Colo. 168, 515 P.2d 632 (1973). The district court properly dismissed the original complaint, and erred in not dismissing the entire amended complaint. The time for pursuing the available remedy of certiorari had passed without an attempt of compliance. The protestors seek to accomplish by a declaratory judgment and an injunction what they can no longer accomplish directly under Rule 106(a)(4).\nThe judgment is reversed and the cause remanded to enter judgment consonant with the views expressed herein. The time for filing petitions for rehearing is reduced to ten days.\nMR. JUSTICE ERICKSON does not participate.\n\nThe basis of the Commission’s recommendation was not the undesirability or lack of necessity of the rezoning, but rather that a blanket rezoning without use restriction would be bad precedent.\n\n\nOrth v. Bd. of County Comm’rs, 158 Colo. 540, 408 P.2d 974 (1965); Huneke v. Glaspy, 155 Colo. 593, 396 P.2d 453 (1964); Frankel v. Denver, 147 Colo. 373, 363 P.2d 1063 (1961); Baum v. Denver, 147 Colo. 104, 363 P.2d 688 (1960).\n\n\nColorado Springs v. District Court, 184 Colo. 177, 519 P.2d 325 (1974); Dillon Companies, Inc. v. Boulder, 183 Colo. 117, 515 P.2d 627 (1973); Kizer v. Beck, 30 Colo. App. 569, 496 P. 2d 1062 (1972). See Ford Leasing Development Co. v. Bd. of County Comm’rs, 186 Colo. 418, 528 P.2d 237 (1974); Bd. of County Comm’rs v. Simmons, 177 Colo. 347, 494 P.2d 85 (1972).\n\n\nThe protestors argue that the mere passage of the rezoning ordinance was not “final action” commencing the 30-day time limitation of Rule 106(b), because the ordinance was not to be effective until the City Council approved the Church’s plat. It is the rezoning which is challenged here, not the approval of the plat. The time begins to run when the passage of the ordinance is complete. Hidden Lake Development Co. v. District Court, 183 Colo. 168, 515 P.2d 632 (1973). At that time, the right to Rule 106(a)(4) review accrued and the time limitation of Rule 106(b) began to run. Riedel v. Sheeran, 73 N.J. Super. 105, 179 A.2d 174 (1962).\n\n", "ocr": true, "opinion_id": 7831532 } ]

[ "194 Colo. 421", "572 P.2d 839" ]

[ { "author_str": "Erickson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOpinion by\nMR. JUSTICE ERICKSON.\nRichard Lambert, the appellant, was convicted by a jury of criminal impersonation (section 18-5-113(l)(e), C.R.S. 1973), and theft (section 18-4-401, C.R.S. 1973). On appeal, he asserts three grounds for reversal. Our review of the briefs and the record satisfies us that reversible error did not occur. Therefore, we affirm.\nFirst, the appellant contends that section, 18-5-113( 1 )(e), C.R.S. 1973, is unconstitutionally vague and overbroad. This contention was answered in People v. Gonzales, 188 Colo. 272, 534 P.2d 626 (1975), and requires no further discussion.\nThe second issue on appeal relates to the sufficiency of the evidence to sustain the jury’s verdict on the charge of criminal impersonation. We will review the facts briefly in this opinion, but the record contains substantial evidence to establish the appellant’s guilt beyond a reasonable doubt. People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973); see also People v. Brown, 193 Colo. 120, 562 P.2d 754 (1977).\nThe crucial facts are these: The prosecution established that an electric Timex watch was purchased at Montgomery Ward, taken to the purchaser’s pickup truck, and left in the cab by the purchaser. The pickup truck was subsequently broken into, and the watch and other items were stolen. The purchaser returned to Montgomery Ward and recognized the watch in the display case. The clerk advised the purchaser that the watch had been returned for a refund. The appellant was the person that had obtained the refund while using false identification. The description of the appellant was sufficient to enable the police officers to make an arrest. When the appellant was placed under arrest, he claimed that he had found the watch and offered to take a lie detector test. He admitted having returned the watch to Montgomery Ward for a refund.\nThe concatenation of the circumstances tied the appellant to the theft of the watch and its return for a refund and constituted proof of the impersonation charge. There was sufficient evidence to create a factual issue for the jury as to the defendant’s guilt as to both charges, and we will not substitute our judgment for that of the jury.\nThe third ground for reversal is that error occurred when the trial judge refused to permit defense counsel to ask the investigating police *423officer whether the appellant had requested a polygraph test and whether a test had been given. The sole evidence in the record to support the claim that the appellant requested a lie detector test appears as part of an in camera hearing that was held to determine the voluntariness of the appellant’s statement to the investigating police officer. The statement was made after he had been taken into custody and after he had been given the Miranda warning. The voluntariness of the statement was stipulated to by appellant’s counsel. The appellant’s statement to the investigating officer was self-serving and had no special indicia of truthfulness. The statement, under the circumstances, lacked probative value and was properly excluded.\nAccordingly, we affirm.\nMR. JUSTICE HODGES, MR. JUSTICE GROVES, and MR. JUSTICE LEE concur.\n", "ocr": true, "opinion_id": 7831944 } ]

[ "195 Colo. 80", "575 P.2d 433" ]

[ { "author_str": "Pringle", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMR. CHIEF JUSTICE PRINGLE\ndelivered the opinion of the Court.\nThe defendant was charged with theft under section 18-4-401, C.R.S. 1973, and was convicted of attempted theft under section 18-2-101, C.R.S. 1973. The People appeal from the grant of defendant’s motion for judgment of acquittal on the charge of theft.\nDefendant was arrested for shoplifting eighteen men’s shirts from the K-G Men’s Store in Aurora. The record reveals that two employees of the store observed the defendant take a number of shirts from a rack, roll them up, and place them into a brown paper sack. They testified that the defendant then walked to the cash register, spoke briefly to the cashier without paying, and then walked toward the exit of the store which was about 100 feet from the cash register.\nThe two employees apprehended the defendant four feet inside the open doorway and recovered eighteen shirts, identified as the property of the store. During questioning by a member of the Aurora Police Department, the defendant admitted taking the shirts for the purpose of selling them.\nAt the conclusion of the evidence the trial court granted the defendant’s motion for judgment of acquittal, ruling that the People had failed to prove beyond a reasonable doubt that the owner had been permanently deprived of the possession and use of its goods, since the shirts never left the owner’s premises. The trial court reasoned that the prosecution had failed to prove the corpus delicti of the crime stating that there was no completed act giving rise to a “loss” by the owner since the goods were not taken from the premises. The court allowed the case to go to the jury on the question of attempted theft, and the jury returned a verdict of guilty under section 18-2-101(7), C.R.S. 1973.\nThe People bring this appeal on a question of law pursuant to section 16-12-102, C.R.S. 1973. The People assert that the trial judge erred in granting the motion for judgment of acquittal because the People had *82presented unrebutted prima facie evidence establishing all the necessary elements of theft which would have supported a jury verdict of guilty. We agree.\nThe primary issue is whether there was sufficient evidence to establish a prima facie case of theft against the defendant. The proper standard for inquiry by the trial judge was initially set forth in People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973):\n“The issue before the trial judge [in passing upon a motion for judgment of acquittal] is whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt.”\nIn the present case, the evidence in the record is substantial and satisfies the Bennett test. All the necessary elements of theft were established pursuant to section 18-4-401, C.R.S. 1973, notwithstanding the fact that neither the goods nor the defendant left the premises. This court has held that once the prima facie case is established in a jury trial, it becomes impregnable to a motion for judgment of acquittal. Ruark v. People, 164 Colo. 257, 434 P.2d 124 (1967), cert. denied, 390 U.S. 1044, 88 S.Ct. 1644, 20 L.Ed.2d 306 (1968).\nIt is generally accepted that in order to show a prima facie case of theft, the prosecution must establish the elements of the corpus delicti of theft: that the property was lost by the owner, and that it was lost by a felonious taking. Woods v. People, 111 Colo. 448, 142 P.2d 386 (1943).\nIn ruling that the People had failed to prove the corpus delicti, the trial court mistakenly interpreted Scott v. People, 166 Colo. 432, 444 P.2d 388 (1968). In Scott, the defendants were observed attempting to load a television set into a car parked in the alley behind the owner’s house. After a futile effort, the television set was abandoned on the owner’s premises. In ruling that there was sufficient evidence to support the guilty verdict, the issue of whether the goods had to be carried away from the owner’s premises before a completed act supporting the crime of theft could be shown was not before this court.\nIn pertinent part, the Colorado theft statute, section 18-4-401, C.R.S. 1973, provides:\n“18-4-401. Theft. (1) A person commits theft when he knowingly obtains or exercises control over anything of value of another without authorization or by threat or deception, and: (a) Intends to deprive the other person permanently of the use or benefit of the thing of value.”\nThe trial court incorrectly stated that the act of concealment of the merchandise by the defendant went only to the element of intent and failed to satisfy the requirement of a loss by the owner.\n*83Under the particular circumstances of this case, the crime of theft was completed when the defendant removed the shirts from the rack and concealed them in the sack he was carrying, if at the time he had the intent to permanently deprive the owner of its use or possession. As of that moment, there was a completed taking, as the defendant exercised complete, independent and absolute control and possession over the goods adverse to the rights of the owner.\nIt was not necessary for the goods to be removed from the owner’s premises in order to prove the prima facie case of theft if the jury found that at that time the required intent to permanently deprive the owner of possession was present. Evidence of that intent was supplied by the wilful concealment of the unpurchased shirts. Thus, every element of the crime of theft as defined by section 18-4-401, C.R.S. 1973, was present in the evidence introduced by the prosecution.\nWe conclude that the trial judge erred in granting a motion for judgment of acquittal.\nJudgment disapproved.\nMR. JUSTICE LEE does not participate.\n", "ocr": true, "opinion_id": 7831966 } ]

[ "198 Colo. 299", "599 P.2d 885" ]

[ { "author_str": "Per Curiam", "per_curiam": true, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPer Curiam\nThe district attorney brought this appeal,1 contending that the judge of the juvenile division of the District Court of Pueblo County erred in failing to take judicial notice of a municipal ordinance of the City of Pueblo in a delinquency proceeding. We agree and disapprove the ruling.\nThe People filed a two-county delinquency petition against Mitchell Hight, a child under eighteen years. The first count charged the violation of section 18-4-504, C.R.S. 1973 (1978 Repl. Vol. 8), third-degree criminal trespass. Count two charged a violation of Pueblo City Ordinance 11-1-64.\nThe court denied a motion to dismiss count one of the petition. It submitted the issue to the jury, which returned a verdict of not guilty. The court granted a motion to dismiss the second count on the ground that the prosecution had “failed to show that the ordinance is in effect, and there being no request that judicial notice be taken of that ordinance.”\nThe juvenile has been acquitted on count one. He was in jeopardy as to count two at the time the motion to dismiss was granted. Therefore, we can do no more than to disapprove the ruling of the trial judge.\nBecause Mitchell Hight was a juvenile at the time he was charged with violating the Pueblo municipal ordinance noted above, “exclusive original jurisdiction” to hear those charges Was vested in the juvenile division of the District Court. See, section 19-l-103(9)(a)(II), C.R.S. 1973 (1978 Repl. Vol. 8); section 19-1-104, C.R.S. 1973 (1978 Repl. Vol. 8). The juvenile court’s assumption of jurisdiction carried with it the same trial duties as to juveniles who have violated Pueblo municipal ordinances, as the municipal court had to adults who violated the same ordinances.\n*301Had the charges that were brought against Mitchell Hight been brought against an adult in the municipal court, that court would, without affirmative action on its part, have taken “judicial notice of the municipal ordinances that fall within its jurisdiction.” Pueblo v. Murphy, 189 Colo. 559, 542 P.2d 1288 (1975). See also, Chavez v. People, 193 Colo. 50, 561 P.2d 1270 (1977). As noted above, the judge of the juvenile court in this case refused to take judicial notice of the municipal ordinance at issue here, first, because the ordinance had not been pleaded and proved, and second, because the court had not been asked to take judicial notice of the ordinance.\nIn Pueblo v. Murphy, supra, we held that when the county court “assumes the trial duties of the municipal court in a trial de novo appeal,” it “may take judicial notice of the same ordinances which the lower court does.” Id. at 561. Employing the same analysis in the case before us, we conclude that a court of the juvenile division of the district court should take judicial notice of those municipal ordinances within the contemplation of the juvenile code, when the municipalities are within the judicial district where the juvenile court sits.\nWhen the juvenile court sits in the place of the municipal court, no purpose would be served by requiring that the ordinances in question be pleaded and proved, or that the court be specifically requested to take judicial notice of the ordinance in question. The juvenile court need not affirmatively announce that it is taking notice of an ordinance of a municipality within its district.\nRuling disapproved.\nJUSTICE GROVES concurs in the result.\nJUSTICE CARRIGAN does not participate.\n\n See section 16-12-102, C.R.S. 1973 (1978 Repl. Vol. 8); Colorado Rules of Juvenile Procedure 22(b).\n\n", "ocr": true, "opinion_id": 7832221 }, { "author_str": "Groves", "per_curiam": false, "type": "030concurrence", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nJUSTICE GROVES\nconcurring in the result.\nIn ruling the trial court stated that the prosecution had “failed to show that the ordinance is in effect, and there [was] no request that judicial notice be taken of that ordinance.” As this was the posture of the matter, I would not here reach the issue of whether generally judicial notice should be taken of the ordinances. I would simply affirm on the ground stated by the trial judge.\n", "ocr": true, "opinion_id": 7832222 } ]

[ "1 Colo. App. 16" ]

[ { "author_str": "Richmond", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nRichmond, P. J.\nThis was an action upon an appeal-bond. On the 21st of March, 1884, defendants in error obtained, before a justice of the peace for Lake county, a judgment against Sylvanus Ayres, Jr., for the sum of $226, from which judgment Ayres appealed to the county court, filing an appeal-bond. Subsequently the county court directed appellant to file another and sufficient appeal-bond, which was done. Said appeal-bond, so filed, was signed by Isaac Cooper and William A. Ellis as sureties.\nThe original cause was tried in the county court, resulting in a judgment for defendants in error. After this, suit was instituted upon the bond, and service of summons made upon Isaac Cooper. To the complaint Cooper answered, alleging that the bond was not his, because, at the time of the execution and delivery of it to the principal, (Ayres,) Ayres promised and agreed that he would not deliver the bond until the signature of another person had been procured. To this answer a demurrer was interposed and sustained.\nThereafter Isaac Cooper died, and the plaintiff in error, Sarah E. Cooper, as administratrix of the estate, appeared to defend the action, and elected to stand by the answer.\nTwo errors are assigned: First, the error of the court in sustaining the demurrer and entering judgment; second, to the form of the judgment.\n*18The first question for consideration is whether, when a surety who signs and seals a bond, and then delivers it to the principal obligor, upon the condition that it shall not be delivered until it has been signed by another co-surety, and the principal delivers it in disregard of the condition, not making known the condition, there being no circumstances which should put the person receiving it on inquiry, does the instrument become operative as a legal deed. This question, we think must be answered in the affirmative. Conceding that everything alleged in the answer is true,—that the understanding existed between Ayres and Cooper that another co-surety should be procured before the delivery of the bond, yet neither the obligee of- the bond nor the clerk of the court to whom it was delivered had knowledge of such understanding or agreement. Besides, the bond was in all respects regularly executed, according to the prescribed form, and accepted by the officer whose duty it was to take it as a completed contract. There was nothing on the face of the paper, or in the instrument itself, to put the officer on inquiry, or to raise a suspicion in his mind that a condition was annexed to the delivery of the instrument. The transaction was one of ordinary occurrence in perfecting appeals from one court to another. No blank was left for the name of the additional co-surety, nor was the name embraced in the body of the bond; arid, in addition to this, the record discloses the fact to be that the two sureties, Ellis and Cooper, appeared before the clerk of the court, and qualified as such sureties. At that time they knew the bond was in the hands of the clerk to be filed ; they knew that the principal obligor, Ayres, had delivered it; and that upon their qualification it would be filed; and not until after the trial of the cause appealed from the justice’s court, and the institution of suit on the bond does it appear that this agreement or understanding was made known.\nWe admit that there is a conflict of authorities upon this proposition, yet, after a thorough review of those cited by the plaintiff in error, and such others as are referred to in *19the text-hooks, we unhesitatingly declare that the better reasoning supports the position here taken.\nIn Dair v. U. S., 16 Wall. 1, Justice Davis, in commenting upon the identical proposition here under consideration, says : “ It is easy to see, if the obligors are at liberty, when litigation arises and loss is likely to fall upon them, to set up a condition unknown to the person whose duty it was to take the bond, and which is unjust in its result, that the difficulties of procuring satisfactory indemnity from those who are required by law to give it will be greatly increased.”\nIn State v. Peek, 53 Me. 284, Barrows, J., has collected and distinguished the cases on this subject in a most satisfactory manner, and we might consistently rest our conclusion upon that case. In the conclusion of the opinion he says: “ If there are cases that militate against the views here expressed, we are satisfied that they savor more of the growing looseness of commercial morality than of adherence to wholesome legal principles.”\nIf the doctrine of estoppel would not apply here, might not the inquiry well be asked, to what state of facts could it apply ? Here the surety who defends this action had invested the principal with an apparent authority to deliver the bond, and there was nothing on the face of the bond, or iu any of the attending circumstances, to apprise the official who accepted it that there was any secret agreement which should preclude the acceptance of the bond. This surety alone is certainly in fault, as but for this unwarranted trust in Ayres he would never have had it in his power to oeca.sion the loss which the obligee of this bond must suffer if the defense made is successful.\nThere is no reason why this opinion should be extended by further reviewing the authorities. The work has been done, and thoroughly done, in several well considered cases in Maine, Indiana, Kentucky, Missouri, Illinois, North Carolina, Virginia, Louisiana, and Michigan. Hunt v. State, 53 Ind. 321; Millett v. Parker, 2 Metc. (Ky.) 608; Nash v. Fugate, 24 Grat. 202; State v. Potter, 63 Mo. 212; State v. *20Peck, supra; Chalaron v. McFarlane, 9 La. 227; Smith v. Peoria Co., 59 Ill. 412.\nThese authorities satisfy us that the conclusion of the court in sustaining the demurrer to the answer must be affirmed.\n. The next question for our consideration is as to the form of the judgment. The judgment rendered is against the estate of Isaac Cooper for the sum of $600, the penalty of the bond. “ The court finds that the estate of Isaac Cooper is indebted to the plaintiff in the sum of $600, the penalty of the appeal-bond sued on herein, and that the damage sustained by the plaintiff herein amounts to the sum of $346.78. It is therefore by the court ordered and adjudged that the plaintiffs, Frank De Mainville and W. H. Brisbane, do have and recover, of and from the said defendant, the estate of Isaac Cooper, deceased, the sum of $600, the penalty of the bond aforesaid, together with their costs in this behalf expended, thereafter to be taxed, and that execution issue therefor.” This was clearly error. The judgment should have been for the sum named as damages, payable out of the estate of the deceased in due course of administration. Gen. St., p.1055, § 3618, provides that, “upon a recovery of judgment * * * against any executor or administrator, or a demand due from his testator or intestate, no execution shall be issued thereon, but the party recovering said judgment shall cause a transcript of the judgment entry to be filed in the county court, and the same shall be classed and paid as other demands are.”\nThis question is directly passed upon in Mattison v. Childs, 5. Colo. 78. For this error the judgment must be reversed, and the cause remanded, with instructions to enter judgment for amount of damage, in conformity with this opinion.\n\nReversed.\n\n", "ocr": true, "opinion_id": 7832281 } ]

[ "2 Colo. App. 567" ]

[ { "author_str": "Richmond", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nRichmond, P. J.,\ndelivered the opinion of the court.\nAt a term of the district court of the third judicial district within and-for the county of Las' Animas, one Thomas Higgins was indicted for assault with intent to kill and murder. Trial was had and resulted in a verdict of guilty, which verdict was set aside and new trial ordered. Thereafter Higgins as principal and John O. Packer and Jesse G. Northcutt as sureties, entered into a recognizance in the sum of $2,000, conditioned that the said Thomas Higgins should personally be and appear before the district court on the next regular term thereof to be holden in the court house in Trinidad in said county on the 9th of March, 1891, and from day to day of each term thereof.\nOn the 17th of March, A. D. 1891, the same being one of the regular judicial days of the March term of said court, the said Higgins then and there failed to personally be and appear. The complaint recites that he was called but came not, and therein made default. That thereupon the said Packer and Northcutt were also called to bring into court the body of Thomas Higgins, which they failed, refused and neglected to do, and thereby made default in the conditions of the said recognizance, and the same was then and there by order entered of record in said court, declared forfeited.\nTo the original complaint a demurrer was interposed, on the ground that it did not state facts sufficient to constitute a cause of action. It was overruled and defendants elected to stand by the demurrer. Judgment was thereupon entered. An appeal prayed, appeal bond filed and transcript ordered.\nThereafter at the same term of the court, the district attorney appeared and moved the court to vacate the judgment, admitting that the complaint was defective. To thus vacating the judgment defendants interposed objections,but never*569theless the motion was allowed and the court then permitted the complaint to he amended by inserting the words, “which said recognizance was then and there duly filed in the district court of said county and become a part of the records thereof.”\nThe demurrer to the original complaint was permitted to stand as the demurrer to the complaint as amended, and was overruled. Defendants refused to answer and elected to stand by the demurrer, default and final judgment.\nThe errors assigned are that the court erred in permitting the plaintiff to amend the complaint, and that even with the amendment the complaint is insufficient in this, that it fails to show that the default of the principal, Higgins, was entered of record.\nThe first question is most unmistakably met and answered by the conclusion of the supreme court in the case of Horn v. Reitler, 15 Colo. 317. This was a case which was upon appeal reversed and thereafter a new trial was had, but previous to proceeding to trial application was made to amend the pleading, and granted. The court, in the course of the opinion, says: “ The amended pleading appears to have been necessary to enable the plaintiff to fully and thoroughly present upon the trial his defense to the new matter set up in the answer, and was properly allowed. It is not claimed that defendant was surprised at the nature of the matters pleaded therein, and, if he had shown such surprise this would more properly have furnished a ground for a continuance than a valid objection to the allowance of the amendments. It is the policy of the code to allow amendments to pleadings whenever the ends of justice will be subserved thereby, and it has been repeatedly held by this court that such amendments may be permitted in the discretion of the court after one trial has been concluded and a new trial ordered. Such applications are addressed to the sound discretion of the trial court, and its decision thereon will not ordinarily be disturbed.”\nSuch being the rule, we are of the opinion that the contention of appellants herein is without merit. The vacation *570of the judgment was undoubtedly within the power of the court, and the leave to amend the complaint thereafter finds its warrant in the rule laid down. If after trial and an appeal and reversal of judgment an amendment is allowable under the code, how can it be argued that upon vacation of its own judgment, when such judgment is within the absolute control of the court, an amendment to pleadings should not be allowed. The amendment permitted was not a matter of surprise nor did it in any wise prejudice the defendants. On the contrary the record discloses the fact to be, that they well knew of the necessity of the amendment, and that they precipitated, their appeal by filing a bond and calling for a transcript before the expiration of the time and during.the term of court wherein default and final judgment was entered. It was purely a technical defense, and the situation fully supports the court in the. exercise of its discretion in allowing the amendment at the time.\nWith reference to the point that the complaint fails to show that the default of the principal obligor was entered of record, we have to say that we think the complaint sufficiently alleges that fact. For after reciting that the principal, Higgins, was repeatedly called, and the subsequent calling of Packer and Northcutt as sureties, it then says, “ and thereby made default in the premises and conditions of their said recognizance, and- the same was then and there, by order entered of record in said court, declared forfeited.” The most that can be said of the complaint in this particular, is that it is rather disconnected and ambiguous. The demurrer only alleges that the complaint fails to state facts sufficient to constitute a cause of action. All other grounds of demurrer save and except jurisdiction must be enumerated. Such is the provision of the code and the repeated decisions of the Supreme Court as well as this court. If counsel for appellants could have found any authorities in support of the last proposition, we assume that they would have cited them. The authorities cited seemingly support the proposition that the recognizance on which the action *571was brought should be returned to the clerk' of the court in which the principal therein was bound to appear. These authorities have no application to the situation of the parties nor any relevancy to the issue presented by the complaint. The record distinctly shows that the recognizance was taken in open court and was made a part of the record then and there, and it is so recited in the complaint by the very words of the amendment, if it did not sufficiently appear before.\nThe judgment is affirmed.\n\nAffirmed.\n\n", "ocr": true, "opinion_id": 7832702 } ]

[ "3 Colo. App. 198" ]

[ { "author_str": "Bissell", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nBissell, J.,\ndelivered the opinion of the court.\nIn many particulars the contract under consideration was executory. It had not been concluded by the transfer of title, and the balance of the consideration was to antedate in its payment the delivery of the deeds. It therefore follows that Decker and Descent are not brought within the scope of the principle which obligates them to resort to the covenants in the deed for their remedy, but they are entitled to set up a want of consideration, and the defects in the title, if any, when sued for the purchase price. Their right to insist upon a marketable title is equally clear. It is now almost universally conceded that an agreement to make a good title is implied in every executory contract for the sale of lands, and that the purchaser cannot be compelled to accept one that is defective unless he has expressly agreed to receive whatever the vendor may be able to convey. Powell v. Conant et al., 33 Mich. 396; Murphin v. Scovell, 41 Minn. 262; Moore v. Williams, 115 N. Y. 586; Swan v. Drury et al., 22 Pick. 485; Rawle on Covenants for Title (4th ed.), p. 43.\nThe agreement concerned real property, and by the terms *204of the bond Godding agreed to sell to Descent and Decker the premises named in the instrument. The implied obligation raised by the terms of the instrument was that he should transfer title without defects of which the defendants could lawfully complain. It must be ascertained what title God-ding had and what the record discloses concerning its alleged imperfection. It must be conceded that the fee was in the government. Godding only held the receiver’s receipt for the purchase money. That this is a good title concerning which parties may contract, and which a vendee will be bound to take if it be evidenced by receipts properly executed by the officers of the government, can scarcely be questioned. This matter is fully covered by the statute and amply settled by a long course of federal adjudication. The Colorado statute declares in section 1810 that the certificate of the register and receiver of the purchase of any tract of land shall be deemed and taken as evidence of title. It is declared to be superior to all other evidence of title to government land, except a patent from the government for the same identical tract. Land thus entered has always been held to be the subject of contract and sale, and the receipt of the money and the issuance of the certificate have universally been held to be such a segregation of the land from the public domain as to entitle the party to his patent, and to warrant legal proceedings for the purposes of procuring it. Carroll v. Safford, etc., 3 How. U. S. 441; Meyers v. Croft, 13 Wall. 291; Simmons v. Wagner, 101 U. S. 260; Deffeback v. Hawke, 115 U. S. 392.\nUnder these authorities Godding had a title concerning which he had a right to bargain ; it was marketable, and it was not, in legal contemplation, clouded bjr defects of which the vendees had a right to complain, unless in some legitimate manner it was established that the' Myton protest constituted such an imperfection. There are many reasons why this cannot be true.. There is a broad distinction between the rights of a contestant and those enjoyed by one who simply files a protest to inform the government that the ap*205pellant is without right to enter the land. If the register and receiver see fit to take the applicant’s money and issue him a receipt which evidences his purchase of the land, the effect of that certificate cannot be destroyed by anjr subsequent appeal which may be taken by the protestant. It is undoubtedly true, under the federal statutes, sections 453-2478 R. S., that the disposal of the public land is committed to the authority of the officers of the interior department, and they may withhold the certificate of purchase pending a subsequent hearing concerning the right of the claimant to enter. It is equally true that, if the certificate has been issued, the land office may, under certain circumstances, cancel the entry. Cornelius v. Kessell, 128 U. S. 456.\nThis concession does not affect the present case, since the question here is, whether the title was rendered defective by the appeal which it is contended the protestant took from the decision of the commissioner of the general land office to the secretary of the interior. It is not discussed, nor is it decided, what effect on the title the action of commissioner Sparks in suspending the entry had with regard to it, since subsequent to this action the entry was affirmed and the action of the local land officers sustained. This was done prior to the trial of this suit, so that when the proofs were made, and the decree entered, Godding had a title evidenced by an unsuspended receipt which was in full force and affected by nothing unless by the alleged appeal. The right of appeal is only given in those cases where questions arise as to the right of pre-emption between different settlers: U. S. Revised Statutes, § 2273.\nThe right of appeal being thus expressly conferred upon certain classes of persons, it must, by the very force of the expression, be held to exclude protestants from the class to which the right is given. The legitimate result of this reasoning is, that the attempted appeal by Myton from the commissioner to the secretary did not constitute a defect which entitled the vendee to insist upon the rescission of the contract, and permitted him to defend in an action for the re*206covery of the purchase money. If this conclusion were unsatisfactory and not so adequately sustained, it would still he held that there was no proof of any legal defect justifying a rescission. The exhibit which the defendant offered in evidence to show that an appeal had been taken was not competent proof of any such fact. The notice of an appeal in accordance with the rules and practice of the land office, or a certified copy of it if admissible, was the only legitimate evidence of the taking of that step.\nWith respect to the character of the title, it only remains to consider whether it is enough for the vendor to be able to make a good title at the time of the decree, or whether his title must have been perfect at the time he entered into the agreement. It seems to be well settled that the court is not authorized to decree a rescission, if at the time of the hearing the plaintiff is able to remedy the defect complained of and make the title which he originally undertook to convey: Kimball v. West, 15 Wall. 377; Diggs v. Curby, 40 Ark. 420.\nIt is conceded that this principle is necessarily subject to some modifications, and that the plaintiff must respond to whatever damages the vendees may have sustained by reason of the delay in the completion of the agreement. The exception need hardly be stated, since the record is barren of testimony respecting this matter. It is only referred to lest on the subsequent trial the rule may be assumed to have been too broadly stated.\nThe force and applicatioh of these principles is not destroyed by the form of the defense, nor affected by the circumstance that Decker alleged fraud in the procurement of its execution. In respect of this particular feature of the case, the record is barren of any evidence which even tended to show misrepresentation on the part of the vendor concerning his title. Decker stated on the stand that the situation and the character of Godding’s title had frequently been made the subject-matter of discussion prior to the purchase, and that the execution of the agreement had only been delayed to await the delivery of the receiver’s receipt, which *207both parties assumed would make a valid title concerning which they might contract. In respect of this matter, the present seems to be one of those cases where what appeared like a valuable acquisition at the time it was initiated turned out to be a bad bargain, from which the vendee would like to escape.\nDecker was not entitled to defend the action for the consideration money, because of the character of the title which Godding was able to convey. He was equally without right to insist on the rescission of the contract because of the alleged fraud of the vendor.\nThat part of the decree which rescinds the contract is not justified by the record. It is quite generally held that a party may not rescind a contract without at least returning, or offering to return, the fruits of his agreement, and restoring so far as he may, either in fact, or by tender, the other to his original possession. Decker’s answer contained no allegation that he had surrendered or had offered to surrender possession, or that he had conveyed, or offered to reconvey any title which he had, or that he had released, or offered to release Godding from his contract. Martin v. Chambers, 84 Ills. 579; Dennis et al. v. Jones, 44 N. J. E. 513; Garrett et al. v. Lynch, 44 Ala. 204; Knuckolls v. Lea, 29 Tenn. 577; Warvelle on Vendors, chap. 31, p. 849.\nThe defendant was as negligent in his proof as he was in his plea, for he failed to show any offer to perform on his part, or any demand to rescind, and at the date of the trial remained in possession and control of the property. He did not therefore entitle himself to a decree for the rescission. There is another reason equally fatal to the decree entered. It is in the form of a judgment in favor of Decker and against Godding for the rescission of the one half of a joint contract and the recovery of an aliquot part of a joint right in favor of one who occupies the position of a plaintiff in an action. The action as originally brought was on two promissory notes against Decker alone, to recover that which, under our statute, he was severally liable to pay. It was no defense to him *208that the joint maker was not sued. It appears that after the institution of the action Descent was on Decker’s motion served with process and brought into the suit. This may be of small consequence in the determination of the question which will be discussed, but it is referred to to show the anomalous character of the result arrived at. Descent never appeared in the action. , Having been served with a summons it was indispensable that some action be taken concerning this defendant. Descent was before the court, and no final judgment could properly be entered without disposing of the case as to all the defendants served. Bissell et al. v. Cushman, 5 Colo. 76.\nRegardless of this technical defect which would necessitate the reversal of the judgment, it must he adjudged upon a broader basis that Decker’s cross complaint cannot be sustained. It will he recollected that after setting up his defense of a want of consideration and fraud inuring in the agreement, Decker filed a cross complaint setting up the same fraud, and thereby sought to recover from Godding the one half of the $700 which he and Descent originally paid as part of the purchase price. This he was permitted to do, and judgment passed in his favor. Prom the cross complaint it appeared that the agreement was between Godding of the one part and Decker and Descent of the other, and that the only promise which Decker made was to convey to them jointly on the payment of the consideration specified. It necessarily follows that if the cause of action set up in the cross complaint grows out of the contract entered into between Godding of the one part and Decker and Descent of the other, it was a joint right running to Decker and Descent, and not a several contract running to each. It was universally true at the common law that wherever a contract, whether written or verbal, was made with two or more persons, and their legal interest was joint, all the obligees, covenantees or promisees, if living, must join as plaintiffs. There was no such thing as a joint and several right, corresponding to the joint and several liability of various promisors. It *209was either several so that one only could sue, or joint so that all must sue. This legal distinction has not been varied by-any statute in this state except in one particular. Doubtless according to one provision of our Code of 1887, section 12, under some circumstances where parties jointly interested refuse to join as plaintiffs they may with proper pleadings be made defendants, and the sole plaintiff thereby overcome this limitation on his right to sue. Decker did not attempt to-bring his cross complaint within the scope of that provision. He simply filed a cross complaint and sought to recover his half of a joint cause of action. This he could not do. The proofs amply demonstrate that it was a sale to both, a contract with both, and whatever was done concerned their common interest. If any cause of action came to them by reason of the contract it came to them jointly, and they must unite in whatever action they would bring. This principle was plainly recognized in Exchange Bank v. Ford, 7 Colo. 314, where the court construed that section of the code which authorizes an action to be brought against one when there may be a liability on the part of several. It is wholly unnecessary to enter into a discussion to establish that where' one party files a cross complaint he thereby becomes a plaintiff, and can only maintain his remedy under that pleading, by proof which shall show that he, on whose behalf it is filed, has a cause of action which he is entitled to maintain against the plaintiff in the suit. This did not appear in the present case, and therefore under the cross complaint the court could not rightfully enter a judgment in favor of Decker for the one half of the money originally paid.\nThe judgment for the one half of the purchase money necessarily depends on that part of the decree which rescinds the contract. When it is determined that neither the alleged fraud nor the character of the title brings this right to Decker, it concludes him as to the payment which was made when the contract was entered into. By the express terms of the agreement the vendees were to forfeit what they paid on the 8th of March, if they failed to pay the balance of the agreed *210price. So long then as the agreement was untainted by fraud, and there was no breach of the implied covenant to convey a good title, no cause of action for any part of what had been paid could arise in favor of Decker and Descent, or either of them.\nThese are all the questions which it is deemed necessary to consider, either for the purposes of the present decision, or with respect to any subsequent trial which may hereafter occur. For the errors committed by the court with respect to the matters discussed this judgment must be reversed and remanded.\n\nReversed.\n\n", "ocr": true, "opinion_id": 7832795 } ]

[ "4 Colo. App. 109" ]

[ { "author_str": "Thomson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThomson, J.,\ndelivered the opinion of the court.\nOn the 18th day of May, 1892, William Derry, plaintiff *110below, recovered judgment against the defendant,-Charles E. Taylor, for $105. On the same day defendant prayed an appeal to this court, which was allowed, and sixty days given him within which to prepare and tender his bill of exceptions. On the 8th day of July, 1892, upon defendant’s motion, the court made an order extending this time thirty additional days. It appears from the record that no notice of the motion was given to the plaintiff or his attorney, and that the order was made exfarte. Section 372 of the Civil Code provides that written notice of motions shall be required in all cases, except those made during the progress of a trial. The sections following fix the time of notice before the hearing, and prescribe the manner of its service.\nThese code requirements are jurisdictional. Except upon proper notice, the court was without power to make the order; and, having been made ex parte, it is void. Mallan v. Higenbotham, 10 Colo. 264; Troth v. Crow, 1 Colo. App. 453.\nThe bill of exceptions was not tendered until the 8th day of August, 1892, long after the expiration of the time originally allowed for that purpose. The order, being void, did not operate to extend the time ; and the bill of exceptions is, therefore, improperly in the record. A motion in the court below to vacate the order was unnecessary. A jurisdictional question may be raised for the first time in the appellate court.\nThe case was commenced before a justice of the peace. There are no written pleadings to apprise us of the nature of the plaintiff’s demand. The bill of exceptions cannot be considered ; and as, therefore, none of the evidence in the case is before us,.we are bound by the presumption that the judgment is correct, and it is accordingly affirmed.\n\nAffirmed.\n\n", "ocr": true, "opinion_id": 7833004 } ]

[ "4 Colo. App. 395" ]

[ { "author_str": "Bissell", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nBissell, P. J.,\ndelivered the opinion of the court.\nThe decision of this case requires the settlement of no *396principles, and in its legal aspects is controlled by rules from which there has seldom been a deviation in appellate procedure.\nIn January, 1889, Kersting & Wilmsmeier were running a brick yard for the manufacture of bricks in North Denver. Groth & Becker were at that time contractors prosecuting their business in Denver and its vicinity. Considerable dealings had been had for some little time between the two firms, and the propriety of a union of their interests and business seems to have occurred to the parties. As a result, Kersting & Wilmsmeier had several interviews with Groth, looking to an extension of the business, his entry into the firm, and the furnishing of whatever brick Groth & Becker might require in putting up the buildings for which they might subsequently contract. The briekmakers ultimately procured a lease on some ground on East Capitol Hill, on which they could make fifty or seventy-five thousand bricks per day, which was nearly double the extent of the capacity of the North Denver yard. The terms of the copartnership will be subsequently stated. Before work was begun, Kersting & Company removed to the new yard’all of the tools, machinery and appliances for the manufacture of brick which they owned, together with the horses and wagons and whatever they had adapted to the business. When the season opened for making brick in 1889, Kersting & Company made large quantities of brick, and delivered what was known to the trade as “ salmon,” “ red,” and “ hard,” and “ stock ” brick to Groth & Becker, who used them in the various contracts which they were executing. The business continued during 1889 and to about the middle of 1890, when the parties disagreed, were unable to come to terms as to a settlement of the business, and shortly afterwards started this litigation to wind up the affairs of the concern. It was originally commenced as one suit, and the plaintiffs thereby sought to recover a little upwards of eleven thousand dollars, as money due from Groth & Becker to Kersting & Company, and resulting from the partnership transactions. The proceeding was attacked as being a union *397of legal and equitable remedies in the same suit, and subsequently there was a division of the cause, and a legal action aided by attachment was brought by Kersting & Company against Groth & Becker to recover the amount which they owed for the brick, and a bill in equity was filed for the dissolution and winding up of the affairs of the copartnership. The two suits were ultimately consolidated and tried as one. It appeared at the time of the trial that the books of Kersting & Company had been stolen, and they experienced a good deal of difficulty in showing exactly the amount of briclefurnished to Groth & Becker, as well as to other parties ; but this difficulty was lightened by an admission by Groth & Becker that they had received a definite quantity of brick amounting to nearly six million. Kersting & Company had trouble not only in proving the amount of brick, but also in showing the quantities of the respective grades which they had furnished. About the time of the dissolution and the disagreement, Groth and his bookkeeper, one Meyer, were at the yard, went through the hooks, and apparently got from them all the material which they contained with reference to qualities, quantities and prices. It is also quite apparent that Groth & Company, from the bills which were rendered, the -tickets which they had received and their own books, were pretty accurately advised in regard to these various matters, although they disputed each proposition during the progress of the trial. The issue concerning the terms of the copartnership is very sharply defined in the testimony. Kersting & Wilmsmeier contended that Groth agreed to become individually a member of the firm of Kersting & Company, and to contribute eight thousand dollars in cash as his share of the capital of the concern, which he was to put in as an offset to the tools, machinery, appliances, good will and advantages which would follow purchasing brick at a yard in the profits of .which Groth shared. On the other hand, Groth & Becker testified that the agreement of copartnership was made at a particular place and at a definite time, and did not contemplate any contribution of capital whatever, except the *398advancement of such money as might be necessary to enable the business to proceed, until by the sales of brick the yard became self-supporting. They insisted that the correlative obligation of Kersting & Company was to sell the brick at a definite price of five dollars per thousand, which as they figured would be less than the actual cost of manufacture, but not enough less to leave Kersting & Company much if any profit. In reality this was and is the only issue of consequence, and a finding one way or the other on this matter of fact of necessity determined the judgment below, and is equally conclusive of the result in this court. It is the only question which justifies a discussion or an argument, and a conclusion adverse to the finding of the referee is a necessary condition precedent to a reversal of the case. Notwithstanding this consideration, counsel in the exercise of their professional rights and discretion have flooded us with multitudinous exceptions which are strongly suggestive of the pests with which the people of Egypt were plagued to compel them to free the children of Israel. The exceptions number one hundred and fifty. They are sought to be supported by upwards of five hundred pages of abstract and brief, and of about twelve hundred pages of a bill of exceptions. We are quite unable to understand why the burden of settling immaterial matters is sought to be placed on the court. The first hundred and twenty-five assignments of error relate solely to the rulings of the referee with reference to the introduction of testimony. Most of them are based on the theory that the questions were irrelevant, or so formulated as to be open to the criticism that they were leading and suggestive, or the inquiry immaterial. These matters could not be settled by reference to the abstract, but the court was compelled to examine the vast.record with reference to each proposition to determine whether such an error had been committed as would justify us in disturbing the judgment.\nManifestly questions of this sort are never of the character and gravity to justify a court in setting aside a judgment unless force be given to the objections by an unanswerable ar*399gument based on a discussion of one of the main issues. The reception of immaterial or irrelevant testimony where a cause is tried before a court of referee is not one of those errors which is deemed adequate by itself to reverse a judgment. Mining Co. v. Taylor, 100 U. S. 37; Insurance Co. v. Friedenthal, 1 Colo. App. 5; Rollins v. Commissioners, 15 Colo. 104.\nAs before stated, the whole case then turns upon the solution of the main inquiry — what was the agreement of copartnership, and was anything due from Groth & Becker to Kersting & Company for bricks manufactured and sold to them ? We were under no obligations to examine the record with respect to this proposition. The case was tried on the testimony of witnesses examined orally before the referee, and was decided upon that evidence, and on the supporting testimony furnished by books of account, tickets, bills and various other memoranda gathered from different sources, and tending to support the plaintiffs’ claim. Under these .circumstances, the finding of the referee upon the questions of fact is entirely conclusive, and we are not required on this appeal to either examine or consider the evidence. Kimball et al. v. Lyons, 19 Colo. 266.\n■ This recent declaration of the Supreme Court of the state is simply in line with a long series of adjudications by the courts on this proposition. Notwithstanding this fact, and in order to determine whether or not we were called upon to reverse the case because of any of the hundred and twenty errors assigned with reference to the admission of testimony, we read not only the abstract but the bill of exceptions so far as it related to this main issue, to wit: the partnership and its terms. On the ■ conclusion of this examination, we were thoroughly satisfied that the referee did not err in his conclusions respecting the agreement, and that his finding was fully justified by the testimony. We did not examine the entire record to ascertain whether in all respects and ex- , actly the account as stated was correct; but since we found the referee evidently right on the main proposition, we left his conclusions to stand as we had the right to do, under the *400rule laid down in* the case last cited. We do not wish to be understood as saying that we made no examination of the account, because it was both examined and computed, and we were unable to discover any error; but we did not read the entire record as contained in the bill of exceptions, for the purpose of ascertaining whether the basis which the referee took for the computation of his statement was fully supported by the proof. His finding was apparently right, and we are not inclined to disturb it.\nIt is contended that a legal error resulted from the suing out of an attachment by Kersting & Wilmsmeier in the action which they brought against Groth & Becker to recover the sum due, because Groth was a common member of both firms. We are not called upon to decide what the legal rights of two firms having a common member may be, or what remedies may be resorted to for their enforcement. The motion to dissolve the attachment was overruled without objection, nor was any exception taken to the order made respecting it.. Under these circumstances, the matter is not properly before us for consideration and may be wholly disregarded. Some complaint is made by counsel of the action taken by the district court on the incoming of the report of the referee restricting his liberty respecting the argument on the exceptions filed to the report. The court undoubtedly declined to allow counsel all the time that he deemed'necessary for the argument; but we do not understand that the action of trial courts in matters of this description is the subject-matter of review. It certainly is not, unless there has very evidently and plainly been an abuse of the exercise of that discretion which nisi prius courts possess with reference to the trial of cases. We cannot perceive on an examination of the proceedings below that there was any such abuse of discretion on the part of the court, as would either call for or necessitate any interference on our part, or even the expression of a criticism respecting it. The only other matter which need be referred to at all is the contention respecting the interest which Groth had in the new firm of Kersting & Company. *401The referee found as a matter of fact that the firm of Groth & Becker did not become members of the new copartnership ; but that Groth with Kersting and Wilmsmeier formed the new firm. This finding is conclusive. It is fully and satisfactorily settled by the proof, and we are without inclination to disturb or question it. The legal result is manifest, and the proportion of profits which would belong to Groth is not open to dispute. Under the terms of the copartnership as found by the referee, and with which we coincide, the new firm consisted of three members, who were to contribute a certain amount to the capital of the concern, and were to share equally in the profits. Under these circumstances, the legal conclusions of the referee are fully sustained by the law.\nThe finding of the referee was correct, be committed no legal error which warrants us to set aside the judgment, and it will accordingly be affirmed.\n\nAffirmed.\n\n", "ocr": true, "opinion_id": 7833129 } ]

[ "6 Colo. App. 43" ]

[ { "author_str": "Thomson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThomson, J.,\ndelivered the opinion of the court.\nThis is an appeal by the board of commissioners of Mesa county from a judgment rendered against it as garnishee. The appellees recovered a judgment against Quinn and Core, upon which execution was issued. Their execution being unsatisfied, they caused a summons in garnishment to be issued and served upon, the appellants. The interrogatories attached to the summons were answered by Edwin Shaw, who stated that-he had in his possession, as clerk of the appellant, a warrant drawn on the county treasurer’s commission and fee fund, payable to W. J. Quinn or bearer, for $630.57, the value of which he did not know. He afterwards filed a supplemental answer. There was no appearance in the' case' by the appellant. Judgment was given against the appellant' as garnishee for the amount of appellees’ claim, and the board appealed.\nThere are several reasons apparent upon the face of the record why this judgment should be .reversed, but there is one which effectually and finally disposes of the entire controversy, and that is that in this state, as the law now stands, counties are not subject to garnishment. Stermer v. Board of Commissioners of La Plata County, 5 Colo. App. 379.\nThe judgment will be reversed and remanded, with directions to the court below to dismiss the garnishment proceeding., , ■ . -\n\nReversed.\n\n", "ocr": true, "opinion_id": 7833458 } ]

[ "6 Colo. App. 146" ]

[ { "author_str": "Reed", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nReed, P. J.,\ndelivered the opinion of the court.\nThere are several errors assigned. The case was brought up on a writ of erroi;. The verdict was rendered August 28, 1893. On September 1st a motion was filed to set aside the verdict and for a new trial. On September 9th the motion came on for argument, after which plaintiff’s attorneys moved to strike -the motion from the files because the July term had lapsed before the motion was filed. The motion was granted. On September 9th judgment nunc pro tunc was entered upon the verdict as of August 28th. On the same day defendant prayed an appeal, which was denied because the statutory time for praying an appeal had passed. If this practice were to prevail, in many instances the constitutional right to appeal would be taken away. By a well settled rule of law no appeal can be taken from a verdict before judgment. This ruling would practically require an appeal before a final judgment was entered. If the time in which an appeal could be taken should lapse while the matter was in abeyance and *149under advisement, and the judgment should then be carried to an earlier date, common justice should require that the prayer for an appeal should be carried back and also be entered nunc pro tune within the limit of time ; otherwise the party would be required to take an appeal in advance of judgment or be deprived of the right of appeal. It may be urged that all' rights could be protected by coming up by writ of error, but the two are not equally available nor equally inexpensive, and the right of appeal cannot be abrogated by the court, and a party compelled to resort to a writ of error through the neglect of the court, and without fault of the party praying the appeal. It is apparent that the court either erred in entering judgment as of the lapsed term or in denying the appeal on the day judgment was entered.\nA brief examination of the evidence is necessary to a proper understanding and solution of the case. The following facts appear to have been established and undisputed: That plaintiff went to work for defendant April 6th. On the 11th he “.blew in” and took charge of a new furnace (No. 7). That on the 13th the accident occurred by which some quantity of molten metal was thrown over him, and he received at least trifling injury. The extent of the injury is nowhere satisfactorily shown. His own statement of his injuries was as follows on direct examination :\n“ The injury was inflicted three days afterwards. My hands were burnt all over the back and on the side. My hands and body were burnt. My clothes were burnt. The burns on my hands were between the fingers and on the back. I was burnt on my body down the breast and on the collar and on the legs. The burns were scattered. I was also burnt on the head and eyes. * * * I was burnt in the left eye,— you can see where it was burnt, if you examine it, — and in the face and neck. * * * I had on an overshirt, undershirt, overpants, underpants and drawers, the value of which was $12.00 or $15.00. I bought $2.00 or $3.00 worth of medicines. Before I left the place I lost seven or eight days’ time. I tried to work after I was hurt. My hands were both *150wrapped up and very sore. I couldn’t sleep nights because, when I would go to sleep, they would fall down, and I ought to held them up to keep the blood from rushing up and injuring my hands. My hands kept hurting me, paining me, and I was confined to the house some time. Couldn’t get out to get work. This lasted about five or six days. I left the defendant ultimately. I still suffered from my hands— couldn’t work. I was detained from work four or five weeks. I have now scars on my hands, neck, body, head and legs in consequence of these injuries.”\n.On cross-examination : “ I was burnt a little in the face, in my eye, too. My neck I suppose is my face. My face is burnt but slightly. The stuff couldn’t rain down on me without striking some part of ■ my face. I suppose if you would examine my face you would find a few little sears. I don’t know where. I was injured on April 13th. I think it was about 2 o’clock P. M. I went to work at 6 A. M. and quit at 6 p. M. The day after I was hurt I began working at 6, the usual hour. I worked for three days, I think, after I was hurt, and then quit for seven or eight days. I quit on account of the injury to my hands. They kept getting worse. After the end of seven days I went to work and worked several days, and then quit, because I couldn’t do the work they required with my hands in that condition. I was not discharged. I bought some medicine, — carbolic salve, — at a drug store. I bought several bottles of antiseptic. It was about two or three weeks after the accident that I bought the medicines. When I was hurt I showed my wounds to Dr. Lemon, and he dressed them; gave me some salve for them. He dressed all the wounds except those on the body. He dressed those on my hands. I mean by that he didn’t put the medicine on. He gave me a prescription, and told me where to get the medicine and how to fix it. The matte separator and the orifice were in plain sight all the time in front of the furnace. It could have been repaired easily in an hour. I couldn’t have done it unless they authorized me to do it.”\n*151M. W. lies, superintendent; of defendant, testified: “I know the plaintiff. I was on the ground when he was using the separator. I did not know of his injury till after this case was brought. I know exactly the day he ceased to work’ for the company. He came and talked to me twelve hours, after he left. He said Tom Drohan liad fired him, and he thought unjustly; that he was working on one of the furnaces, and he thought he was doing his duty. I told him I would investigate, but as long as Drohan was foreman, I, for the time, would have to sustain his action ; that I believed Drohan wouldn’t discharge him unless for good cause. He said nothing whatever about any hurt or injuries or anything of that kind, nor about having any clothes injured. I did not know of the iujury on the day it happened, nor until this suit was brought.”\nAlthough he testified that he was not discharged and “ quit ultimately ” on account of his injuries, it is established beyond controversy by the foreman and several others that he continued at work until he was discharged the last of the month of April, and, as shown above, complained to the superintendent of his discharge by the foreman.\nDr. L. E. Lemon testified: “ When I first knew the plaintiff he was employed by The Omaha & Grant Smelting and Refining Co., and frequently consulted me for sickness, slight injuries, slight burns, etc.; and on several occasions I have made out insurance papers for him, for which he has recovered indemnity from insurance companies in which he was insured at the time he was at work. I have treated him for burns prior to April last. Usually burns on the hands or feet. I don’t remember the date in April, but some time after April 12th, and before May 1st, he consulted me at my office for a burn. As I remember it, the burns were on the hand and a burn on the back of the neck. The burn on the hand was, I should say, of the area of the size of a nickel. That on the neck was not quite so large. I do not recollect that he complained of other injuries. I prescribed for the burn; *152wrote a prescription for ointment. I only remember his consulting me once for that burn.” «\nThat he received some slight injury is beyond question. That it was not of such character as to incapacitate him is clearly shown, and that he continued at work until discharged; also that his claim for damages for injuries, or that he had received injuries, was not known to the officers of the company until this suit was brought.\nNo suit could be maintained or damages recovered unless the fact of negligence upon the part of the company, as -the proximate eause of the injury, was established. If the appliances were defective, and the fact known to those in charge, and there was a refusal to make them safe, the injured employee could recover daipages; otherwise not. In this case the only evidence of improper constrüction and of danger from the matte separator came from the plaintiff. The officers and other employees testified to its efficiency and safety. It was also shown that the same devices had been employed for a long time previous, were continued after-wards without change, and that the plaintiff, after his alleged injury, continued to use them without protest or complaint until his discharge. He testified that two or three days before he was injured be complained to the superintendent of the misconstruction of the inner orifice, and the danger attending, and that a change was promised. Mr. Tucker, to whom the complaint was alleged to have been made, testified that he had no recollection of plaintiff calling attention to the matter, nor of promising to rectify it. It is obvious that neither plaintiff nor those in charge deemed the matter of any moment! as plaintiff continued work until discharged without further complaint, and no change was found necessary by the company. Walter, a furnace man, who was with him at the time of the alleged injury, testified that it was caused by the improper mixing of the clay used upon tiie “ dolly bar ” to stop the orifice; that it was too soft; that he called plaintiff’s attention to it immediately before the injury, but his suggestion was disregarded. He also testified that *153the plaintiff continued to work “right along” until he, the witness, left.\nIt appears that upon the trial plaintiff was twice called to testify; that on both occasions he exhibited his hands and the scars upon them, and testified to their being the result of the in j uries for which suit was brought. Counsel then learned from Dr. Lemon that several times plaintiff had applied to and received compensation from The Travelers Insurance Company for previous injuries by burning. On cross-examination he was asked how many times he had previous to April 13th applied to The Travelers Insurance Company for losses for accidents from burns on the bach of his hands. Objected to, and objection sustained. Counsel then offered to show that witness had made several applications for damage of that kind, and had several payments for such damage, and the offer was rejected.\nCounsel caused a subpoena to be issued for E. P. Long, with the books of the Insurance Company, to prove the following facts, as stated in an affidavit of Samuel Lesem, the general agent of the company :\nFirst — That on July 13, 1886, defendant had been paid $10.00 for injury by burning of his left hand and wrist.\nSecond — September 9, 1886, had paid $55.00 for burning left hand.\nThird — December 6, 1886, had paid $55.00 for burning back of left hand.\nFourth — -January 30, 1890, had paid $15.71 for burning back of right hand.\nFifth — May 26, 1890, $10.00 for burning left hand.\nThe court held the evidence incompetent and declined to wait until the witness arrived. The refusal was error. The fact of the payment and amounts paid could not be rebuttal ; but after having made pro'fert of his hands, and exhibited the scars, the fact that he had previously, four times, made proof of injury by burning of the same hand would ceitainly have rebutted the proof that the scars exhibited were the result of the last injury. It would'also have gone to the *154character and credibility, and shown him to have been one of the most careless or unfortunate of men, or a fraud unworthy of credit. For either of these purposes the-evidence was admissible, and counsel should have been allowed its intro-, duction and reasonable time to produce the witness.\nNo. want of proper attention on the part of the company, nor negligence or want of proper appliances was established. The whole case rested upon the evidence of the plaintiff. Of its character and credibility nothing need be said, but it is apparent that the injuries received were comparatively trifling, and in view of his previous experience, and the evidence of the surgeon and others, might be regarded as incidental to the employment.\nThe verdict clearly appears to have been the result of bias or prejudice, and so unwarranted by the evidence, and so much in excess of the injury as testified to by the plaintiff himself, and so regardless of the instructions of the court, that-it should not have been the basis of a judgment. The facts and circumstances of the case are such as to take it out of the general rule that the court will not interfere with the finding of facts by a jury where the evidence is contradictory. It is clearly within the exception'so often stated in the supreme court and in this court. The court erred in refusing the motion to set aside the verdict and grant a new trial. For reasons above given, the judgment of the district court will be reversed, and the cause remanded for a new trial.\n\nReversed.\n\n", "ocr": true, "opinion_id": 7833491 } ]

[ "6 Colo. App. 177" ]

[ { "author_str": "Bissell", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nBissell, J.,\ndelivered the opinion of the court.\nA brief statement of the facts will make plain this controversy. In October, 1892, Mrs. Ramer was the lessee and proprietor of the Tedmon House in Fort Collins. A little while before the day of the sale, L. A. Smith, who is the husband of the other coplaintiff, entered into negotiations with Mrs. Ramer’s husband with reference to the purchase of the lease, good will, and furniture in the house. They culminated in a purchase. The consideration was $500 in cash, and $1,000, evidenced by ten promissory notes maturing at regular intervals. At the time of the sale, Post, the agent of the hotel, went through the house with his inventory to see whether there still remained in the building what had been leased with the house to Mrs. Ramer. Smith’s evidence shows that within a dajr or two of the time when he took possession, he was advised by Post of the extent of the lessor’s claims. Smith gave a good deal of evidence respecting Ramer’s representations concerning what belonged to him, and the difference between what he got and what Ramer said his wife owned. It is not quite clear, though reasonably certain, that he had this information before the execution of the notes. If he did not, he had it immediately afterwards. The Smiths, however, remained in possession, and were in possession at the time of the bringing of the various suits, which will be' referred to, and at the time this action was brought in the ensuing year. No offer had been made to cancel the trade or restore the goods, or put the parties back into their original condition. The sale included not only part of the stuff in the hotel, but the lease and good will, and the Smiths' received the benefit of sundry repairs which had been put on the place by Mrs. Ramer, and for which a monthly credit or rebate was given on the rent account. The notes were not paid at maturity, and Mrs. Ramer commenced suit on some of the notes. When the case reached the county court, the Smiths attempted to defend b}^ an assertion of a counterclaim growing out of the transactions. There were some legal *179obstacles to tbe practice, and the litigation ultimately came to this court. It is wholly unnecessary to refer to that litigation, since the principle of it is not involved here. After-wards, this suit was brought in the county court. Its basis is not easily understood. The complaint proceeds to state the transaction, alleges the false representations, and the reliance placed on them by the plaintiffs, the inducements which they were to the trade, and alleges that on account of it the consideration had wholly failed; sets up the institution of three suits, and then prays that Mrs. Ramer’s claim may be adjudged satisfied, and that she may be ordered to surrender the notes for cancellation.\nThe complaint was not happily conceived for the purpose of securing anj’- relief. It could hardly be deemed other than an action to rescind the contract, in which event the complaint was wholly insufficient to justify a judgment in the plaintiffs’ favor. There was no allegation that there had been an offer to restore the goods or put the parties in statu quo. If the action is to be treated as an action for rescission, on the ground of a total failure of consideration, it is wholly unsupported by the testimony. The plaintiffs got the lease, were regarded as tenants by the landlord, received the benefit of the rebate on the rental, which came from the repairs put on the house by Mrs. Ramer, and certainly got a part, and a very considerable part of the property which Smith supposed he bought when he made the trade with Ramer. This shows that there was no such total failure of consideration as entitled the party to maintain this kind of an action. We do not undertake to say, if the consideration had partially failed, and the plaintiffs were able to sustain their allegations of fraud and misrepresentations to the satisfaction of the jury, they were not entitled to some relief. On this matter we do not express an opinion. We simply say the record does not support the action as now conceived. Plaintiffs’ counsel, who appears in this court, has evidently recognized the difficulty with the case, and has suggested for our consideration but two errors. One of these is *180based on a rejection of testimony. One witness was produced who was asked respecting the value of some of the property which was included in the sale. The court excluded this evidence, and the ruling is assigned as error. There are two reasons' why the objection was well based. One is, the witness had not shown himself competent to testify on the subject-matter inquired about, and the second is the plaintiffs gave testimony about it, and the defendant offered nothing per contra. Had the evidence been admissible, no harm came to the plaintiffs by reason of its rejection. The other error is based on the giving of an instruction which proceeded on the theory that this suit could not be maintained if the jury found, as a matter of fact, that the plaintiffs, remained in possession of the property which they bought and the hotel, without offering to surrender or cancel the contract which had been made. The instruction probably ought to have been modified by the insertion of some limitations which the law affixes to the right to rescind, and it would probably have beén wise to have explained the difference between a rescission based on fraud and one which rests on a failure of consideration. Even though the instruction may be conceded to be defective, it would not operate to reverse the judgment. The plaintiffs were not entitled to any instruction regarding a rescission of contract, or one respecting the right to rescind an agreement, because of the failure of consideration. Their action was not properly conceived with reference to either proposition. They were not entitled to recover upon the case as made, and an erroneous instruction will not therefore compel us to overturn the judgment.\nWe perceive no error in the record which compels us to disturb the judgment, and it will accordingly be affirmed.\n", "ocr": true, "opinion_id": 7833508 } ]

[ "7 Colo. App. 523" ]

[ { "author_str": "Bissell", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nBissell, J.,\ndelivered the opinion of the court.\nThe Champion Empire Mining Company on the 1st of May, 1893, made three promissory notes, each for the sum of $568.19, bearing 10 per cent interest, to the order of B. Clark Wheeler. These notes were indorsed by Wheeler and came into the possession of John Wardell. Wardell, while the holder of the paper, transferred it to Bird to secure sundry obligations. The notes were not paid at maturity, and Bird sued the company. The complaint alleged title and the amount due on the paper. The answer practically conceded the incorporation of the defendant company, the execution of the notes, denied on information'and belief that the plaintiff was the owner and set up a special defense. This amounted to a statement of an indebtedness of the company, secured by the pledge of some treasury stock belonging to the corporation, the execution of the notes, Wheeler’s representations of the outstanding indebtedness, *524a promise on his part to use them in settlement of these debts and an agreement by him to release the stock and turn it into the treasury of the company.\nThere were apt allegations of a condition attached to the delivery. The notes .were produced at the trial by the plaintiff, whereby he showed, of course, title and possession.\nAt the trial the company offered Newberry’s deposition, from which it appeared that at the time the paper was given the Mining Company was indebted to Wheeler for advances in the sum of $22,272.75, which had been expended for the legitimate objects and purposes of the company. The notes were given after an attempted settlement between Newberry, who was the president of the company, and Wheeler. New-berry testified to representations made by Wheeler respecting the difficulty encountered in borrowing money for the corporation, and statements respecting the pledge of certain stock, which is called “ treasury stock,” and averred to be the company’s property. Newberry stated an agreement on Wheeler’s part to take up this pledged stock and return it to the treasury on receipt of the notes and after they should be negotiated or sold. Newberry did not attempt to testify to a conditional delivery of the paper. It is important to bear this proposition in mind. After the negotiations had been carried on between Newberry and Wheeler, the notes were executed by the corporation in Aspen, and there delivered to Wheeler without condition or limitation, other than what may be inferred from what had been done by Newberry and Wheeler. Newberry’s deposition was offered and objected to as' tending to vary by parol testimony the terms and conditions of a written contract. On the trial, the defendant offered Wheeler as a witness, and asked him some questions, and in his testimony he denied all that New-berry had said respecting the agreement to take up the stock and put it in the hands of the company, and the condition attached to the delivery of the notes, which he asserted were given to repay him for absolute advances. The defendant objected to some of this testimony, but afterwards waived *525this objection by an extended examination of Wheeler, whereby it appeared the notes were delivered unaccompanied by any condition and without any agreement respecting the procurement of the treasury stock or its surrender to the company, and some evidence which tended to show the company never had any title to the stock which Wheeler had placed in the treasury of the company in order to raise funds to carry on the mining operations. As he testified, the stock was in no sense treasury stock, but stock which belonged to him and which he put in the treasury. Whether the stock was so delivered as to give the company title does not appear, nor is it important.\nThere are several assignments of error, but the one principally argued, and on which the appellant relies, respects the objection to the testimony which has been referred to. In respect to the ruling of the court adjudging this testimony incompetent, it may be said the case was tried to the court, the testimony was offered, and the court sustained the objection, holding it inadmissible under the issues. There is quite an attempt in the argument to change the line of defense from that occupied at the trial and presented by the answer.\nIn order to escape the force and effect of some very well settled legal propositions respecting commercial paper, the appellant endeavors to bring his case by argument within ■ that line of decisions which adjudge parol testimony admissible in suits on promissory notes in aid of a defense which might perhaps be said to vary the terms of the contract. The cases which announce this exception to the general rule always place the decisions on the ground of a conditional delivery of the paper. Nothing is more clearly established than this general rule respecting bills of exchange and promissory notes. Parol evidence is inadmissible to vary or contradict the specific terms of the contract. All the defenses which depend on proof of extraneous facts and which rest on evidence of a failure to perform some agreement made by the maker which would vary, if enforced, the terms of his engagement, are universally adjudged inadmissible, unless the *526evidence shows the delivery to have been conditional. Daniel on Negotiable Instruments, vol. 1, sec. 80 ; Brown v. Spofford, 95 U. S. 474; Forsythe v. Kimball, 91 U. S. 291; Burnes v. Scott et al., 117 U. S. 582 ; Allen et al. v. Furbish, 4 Gray, 504.\nThe production of the note establishes the plaintiff’s title, and, in the absence of other testimony, shows him to be a holder for value. Authorities supra; Spencer v. Carstarphen, 15 Colo. 445 ; Perot v. Cooper, 17 Colo. 80; Salazar v. Taylor, 18 Colo. 538.\nThere is no necessity to elaborate this principle. The plaintiff produced the 'notes and was entitled to recover, unless there was some testimony to invalidate his apparent title. It cannot be successfully contended the company offered any evidence which sustained the defense pleaded. If everything contained in Newberry’s deposition had been admitted or regarded by the court as admissible, there would 3’et have been a failure to establish the conditional delivery which is essential to the admissibility of that class of testimony. Newberry himself did not swear to it, nor taken as a whole did his testimony tend to show an agreement to deliver the notes on the condition that the treasury stock should be surrendered. His deposition contained some evidence in that direction, but taken as a whole it does not support it. In addition to this, it very clearly appears from the testimony the notes were executed in Aspen, by the officers of the company, and delivered to Wheeler in settlement of a just claim of twenty odd thousand dollars which he had against the company. If there had been any sort of an arrangement between Newberry and Wheeler at the time of the negotiations, it was not shown to have been carried on in behalf of the company, to have been adopted or accepted by the board or directors, who alone had the right to act, nor that the delivery by the officers in Aspen was at all conditional or dependent on performance of any agreement made by Newberry and Wheeler. Newberry’s testimony did not tend to show a completed agreement between himself and *527Wheeler, but the whole thing was left open to an examination of the company’s books and an ascertainment of what had been done by Wheeler for the company and what he was entitled to receive. These circumstances entirely deprive his testimony respecting the condition of any force or value. A still stronger answer to the contention is found in Wheeler’s testimony. The company put him on the stand, and while there is some controversy about his cross-examination, the company continued the examination and developed the fact that there was no agreement about the delivery of the treasury stock which could be taken as a condition. When they put a witness on the stand who denies what has been set up as a defense, we have a right to assume it was not maintained. According to Wheeler’s testimony, the notes were delivered in settlement of a just account owing by the company, which, according to his contention, was not then, and never had been, the owner of the treasury stock. We therefore conclude the defense was not established.\nThe circumstances of the trial likewise deprive the plaintiff of any advantage to be gained by an argument on the alleged error resulting from the exclusion of testimony. The case was tried to the court. It heard the testimony, and although it may have erred in its exclusion or in sustaining objections to it, yet if it appears, had the testimony been admitted, no other or different judgment could have been rendered, it furnishes no ground to reverse the judgment. The error, if any, was not prejudicial, and no advantage can be taken of it. Andrews v. Carlile, 20 Colo. 370.\nThis discussion disposes of all the matters which have been pressed on our attention and of all possible reasons which can be urged for the reversal of the judgment. Finding no errors adhering to the record, the judgment will be affirmed.\n\nAffirmed.\n\n", "ocr": true, "opinion_id": 7833836 } ]

[ "8 Colo. App. 373" ]

[ { "author_str": "Thomson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThomson, J.,\ndelivered the opinion of the court.\nW. C. Grigsby brought suit before a justice of the peace against G. B. Vaughn to recover damages for injuries to real estate. The case went from the justice to the county court, where the plaintiff had judgment. The defendant prosecutes error.\nOn January 15, 1893, William Cox conveyed the land to J. J. Grigsby in trust to secure the payment of $150 to the plaintiff. At the time of the execution of the trust deed there was a windmill on the land, which had been sold by the defendant to Cox. On the 31st of March, 1894, — more than a year after the trust deed was given, — the defendant received from Cox a chattel mortgage on the windmill, to *374secure the payment on the 1st day of October, 1894, of the balance of the purchase money. Default having been made by Cox, the defendant took possession of the windmill and removed it from the farm, claiming title under his chattel mortgage. The plaintiff’s' claim is that the mill was part of the realty.\nWe think it clearly shown by the evidence that the mill was affixed to the soil in such manner that, taking into consideration the purpose of its erection, it was incorporated into the freehold and passed with the land. It was conveyed by the trust deed, and as against the rights acquired by that instrument, the chattel mortgage, subsequently executed, is ineffective.\nIt is contended for the defendant that the justice had no jurisdiction to hear and determine the controversy, because title to real estate was in volved. The statute, provides that if in any action before a justice of the peace, relating to real estate, it shall appear that the title' or boundaries are in dispute, the justice shall certify the cause and transmit the papers to the district court of the same county. Gen. Stats., sec. 619. It is argued for the defendant that as the plaintiff claimed the windmill as real estate, and the defendant claimed it as personal property, therefore the title to real estate was in dispute. We do not think that the controversy over the character of this property involved a dispute concerning title to real estate within the meaning of the law. Cox’s title to the land is not questioned, nor is it denied that he conveyed his title to the trustee. The question was whether, as between mortgagor and mortgagee, the mill was so attached to the land as to be part of it — in other words, whether the windmill was personal property or real estate. In our opinion the objection to the jurisdiction is not well taken.\nPrior to the commencement of this suit proceedings had been instituted for the foreclosure of the trust deed, and some days before the justice rendered his judgment, foreclosure had been perfected, the property sold, and a deed exe*375cuted to the purchaser. The plaintiff was the highest and best bidder at the sale, and it was struck off to him for $50.00. At the time the suit was commenced the plaintiff had neither title nor possession. The title was in the trustee, the possession was in Cox, and the plaintiff was simply a beneficiary, entitled, if his debt was not paid by Cox, to cause the land to be subjected to its payment. If, therefore, this were an action of trespass quare clausum fregit, it could not be maintained. P. & A. V. R. R. Co. v. Beshoar, 8 Colo. 32; Gooding v. Shea, 103 Mass. 360. But a suit may be maintained by mortgagee, or a beneficiary in a trust deed, for an injury done to his security. He need not have possession, or right to possession of the land. His right of action grows out of the impairment of his security. Gooding v. Shea, supra; Chouteau v. Boughton, 100 Mo. 406. This suit was commenced before a justice of the peace. There were therefore no written-pleadings, and the nature of the action must be determined from the evidence. We think the evidence warranted the judgment. The land sold for $50.00, $100 less than the principal of the debt. The removal of the windmill reduced the security upon which the plaintiff relied by an amount equal to the value of the mill at the time of its removal. That value the court found to be $75.00. The loss sustained by the plaintiff was therefore $75.00, and the judgment given for that amount must be affirmed.\n\nAffirmed.\n\n", "ocr": true, "opinion_id": 7833992 } ]

[ "9 Colo. App. 83" ]

[ { "author_str": "Reed", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nReed, P. J.,\ndelivered the opinion of the court.\nThis suit was brought by the appellant to restrain appellées from selling a tract of land in Logan county by execution on a judgment ‘obtained by Lamar against one W. E. Baker, appellant claiming tó be the owner of the land and that Baker'had rio interest in it whatever. -Thefacts as tes*84tified. to by the plaintiff were that Baker was engaged in livery business in the city of Denver; that there was a chattel mortgage on his stock, etc., to one Williams, for $600; that Baker and family had boarded with appellant, and that on July 1, 1893, owed $600 for board, which he was unable to pay, and proposed to turn over the livery stock, subject to the Williams chattel mortgage, which was accepted, and a bill of sale made July 13,1893.\nAll the testimony shows that there was no change of possession of the livery stock. The testimony of appellant in regard to the transaction was “ that Baker continued in possession of the livery in question just the same as he had always done, until the same was turned over to Vance. I requested Mr. Baker to look after it, as I could not attend to it, until we could make some disposition of it. He found this ranch. I went down to look at the ranch near Sterling. I came back and told Mr. Baker to make the trade. In order that I might not sign the note to secure the six hundred dollar chattel mortgage, the property was conveyed to Mr. Baker. The property was conveyed to Mr. Baker in order that he might sign the note and trust deed, as I did not care to sign it. The warranty deed from Vance to Baker, and the trust deed securing the Williams mortgage, and the deed from W. E. Baker to me, were made at the same time and signed before the same notary. The two deeds, one from Vance to Baker and one from Baker to me, were placed in the same envelope and mailed to the recorder at the same time.” Cross-examination : “ I did not testify that I took possession under chattel mortgage; I do not remember my testimony in the county court, but I never had any chattel mortgage; Baker conveyed to me the books, but he still remained in possession of the stable. Mr. Baker remained in possession of the livery barn until I turned it over to Mr. Vance. Vance removed the stock to another part of the town. I think it was the day the deeds were executed.”\nThe livery stock was traded by Baker to one Vance for the land in question. Williams’s security upon the .stock *85was released and put upon the land. On July 21st, Vance executed to Baker a warranty deed of the land. Baker executed a trust deed to Williams and a warranty deed to appellant. The two warranty deeds were mailed on the same date in the same envelope to the recorder of Logan county for record by Williams. On the 22d, the recorder wrote declining to record without payment of fees, the fees were remitted, the records made bearing indorsement of July 25th.\nAt the time of the conveyances Baker was indebted to appellee, Lamar, for feed furnished the stable, who brought suit by attachment, which was served upon Baker and levied upon the land in controversy on July 24th. On the 13th of September Lamar obtained judgment, an execution was issued and levied upon the land. On the 15th of November this suit was instituted to prevent the sale under the execution. A trial was had to the court, a decree dismissing the bill, and an appeal to this court.\nThe bill must be regarded as purely for injunctive relief to prevent the sale under the execution. The right to invoke the aid of a court of equity is alleged to be that the sale will create a cloud upon the title and work irreparable injury. Under certain circumstances and conditions, well defined, bills in equity can be maintained to remove a cloud from title, and an injunction will be granted to restrain acts that will result in easting a cloud.\nThe questions presented are such that they could not be tried and judicially determined on an application for injunction. The facts established are such as to cast a doubt upon the bona fides and honesty of the whole transaction. The livery was sold as alleged in payment of a board bill. There was no delivery. Baker remained in the possession and control as the ostensible owner, made the trade with Vance and delivered the possession to him, took the conveyance to the land, executed the trust deed to Williams, then conveyed his equity to appellant. These circumstances were such that, if not sufficient to establish fraud, were sufficient to cast grave doubts upon the honesty of the transaction. *86Under such circumstances, the judge of the district court was warranted in refusing the injunction and dismissing the bill.\nAfter sale upon execution, the court might, on proper showing, enjoin the making of the deed. Previous to the sale the granting of an injunction to prevent a cloud upon the title is said to be discretionary with the court. Goldstein v. Kelly, 51 Cal. 301; Drake v. Jones, 27 Mo. 428.\nThere is no question in regard to the right of a court to grant an injunction to restrain a sale by a sheriff under an execution where it would cast a cloud upon the title, where there is no question in regard to the legality of the title of the applicant; but where there are serious doubts in regard to the validity of the applicant’s title, the injunction should not be granted.\nWe do not find it necessary to examine and settle the questions argued by counsel in regard to the conveyance and proceedings by attachment as to which was entitled to precedence. No title had passed by operation of law under a sale by execution, and, until there was such, no question in regard to its validity could be determined, nor could the district court, nor can this court, on application for an injunction, try and determine the legal title to the property.\nThe decree of the district court will be affirmed.\n\nAffirmed.\n\n", "ocr": true, "opinion_id": 7834078 } ]