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+"{\"id\": \"1152571\", \"name\": \"Stephens v. Campbell\", \"name_abbreviation\": \"Stephens v. Campbell\", \"decision_date\": \"1900-02-24\", \"docket_number\": \"\", \"first_page\": \"484\", \"last_page\": \"493\", \"citations\": \"67 Ark. 484\", \"volume\": \"67\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T17:15:35.556123+00:00\", \"provenance\": \"CAP\", \"judges\": \"Wood, J., absent.\", \"parties\": \"Stephens v. Campbell.\", \"head_matter\": \"Stephens v. Campbell.\\nOpinion delivered February 24, 1900.\\nDe Facto Officer\\u2014Eight to Fees.\\u2014One who has acted as night watchman de facto of a city, hut without legal title to the office, is not entitled to recover fees for services performed as such watchman. (Page 491.)\\nAppeal from Jackson Circuit Court.\\nRichard H. Powell, Judge.\\nJ. W. Phillips and 8. D. Campbell, for appellant.\\nThe appointment of appellee as night watchman could not be made by the vote of less than a majority of the whole council. Sand. & IT. Dig., \\u00a7 5158. The resolution having failed to pass, there was no such office as night watchman, and appellee could not be even a de facto officer. 68 Am. St. Rep. 95; 118 U. S. 425. Even a defacto officer cannot recover fees or salary, unless he be also an officer de jure. 28 Am. St. Rep. 163; 32 Am. St. Rep. 228. Appellee entered upon the discharge of his duties before passage of the ordinance providing that he should have the fees sued for in this ease. Hence he is not entitled to have them. The emoluments of the office could not be increased during his term, so as to inure to his benefit. Sand. & H. Dig., \\u00a7 5167; 50 Ark. 81; 53 Ark. 205. The city had no power to compensate a watchman by fees. 45 Ark. 454; 31 Ark. 462.\\nGustave Jones, for appellee.\\nAn attack on appellee\\u2019s title to the office could not be made except by the state. Sand. & H. Dig., \\u00a7\\u00a7 7367, 7368. Title to an office cannot be attacked collaterally. 29 Pa. St. 129; 49 Ark. 439.\", \"word_count\": \"3081\", \"char_count\": \"17552\", \"text\": \"Battle, J.\\nOn the 28th of October, 1897, W. W. Campbell sued T. S. Stephens, before a justice of the peace of Jackson county, on the following account:\\n\\\"T. S. Stephens, Dr.\\n\\\"To W. W. Campbell.\\n\\\"To money had and received..........$30.75.\\\"\\nA jury was impaneled to try the issues in the case, and the plaintiff then stated that he ivas the night watchman or policeman of the city of Newport, and had performed services for which the fees sued for were due; that the defendant was marshal of the city, and liad collected the fees; and that he was entitled to the same. The defendant thereupon made his statement to the jury, and admitted that he was marshal, but denied all the other statements made by the plaintiff.\\nS. R. Phillips, a witness in behalf of the plaintiff, testified as follows: \\\"Am recorder of city of Newport, and have here record of council meetings. Minutes of council meeting of January 4, 1897, read as follows, viz.:\\n\\\"Council Room, January 4, 1897.\\n\\\"Council met in regular session, with the following members present: Mayor Foster, Aid. Thompson, Goldman and Bach. Absent: Aid. Johnson. Quorum present. Minutes of preceding meeting were read and approved.\\n\\\"Resolved by the city council that the mayor appoint a night watchman, to be confirmed by the council, at a salary of fifty dollars per month, and that said night watchman be required to give bond in the sum of one thousand dollars for the faithful performance of his duties, and to account for all moneys and valuables that may come to his hands as such officer. [Signed] Ike Goldman, Alderman.\\\"\\n\\\"Motion by Aid. Thompson, second b3r Aid. Goldman, that the above resolution be adopted as read. The roll was called: Aid. Thompson, 'Yes.' Aid. Goldman, 'Yes,' and Bach did not vote.\\\"\\n\\\"His Honor, Mayor Foster, appointed W. W. Campbell as night watchman.\\n\\\"Motion by Aid. Thompson, second b3r Aid. Goldman, that the appointment by the mayor of W. W. Campbell to the office of night watchman be confirmed. On roll call, Aid. Thompson, 'Yes;' Goldman, 'Yes;' Aid. Bach did not vote.\\n\\\"R. C. Harder, Recorder.\\n\\\"J. P. Foster, Mayor.\\\"\\n\\\"Minutes of council meeting of February 15, 1897, read as follows, viz:\\n\\\"Council Room February 15, 1897.\\n\\\"Council met iu regular session, with the following members present: Mayor Foster, Aid. Johnson, Aid. Bach and Aid. Thompson; Recorder Harder absent.\\n\\\"Ordinance to establish the office of night policeman or night watchman introduced, placed on first reading; rules were suspended; placed on second reading by caption; on motion it was placed on third and final reading. Motion by Aid. Johnson, seconded by Aid. Bach, that the ordinance be adopted. Aid. Johnson voted 'Yes;' Aid. Bach, 'Yes;' Aid. Thompson, 'Yes.' (Signed)\\n\\\"J. P. Foster, Mayor.\\n\\\"W. R. Thompson, Recorder Pro. Tem.\\\"\\n\\\"The record does not show any appointment of Aid, Thompson as recorder pro tem, in absence of Harder.\\\"\\n\\\"I have ordinance record, containing ordinance No. 89, creating office of night watchman or policeman, and fixing compensation, and it reads as follows:\\n\\\"'Ordinance No. 89.\\n\\\" 'An ordinance to establish the office of city watch or police, and to prescribe the duties and compensation of the incumbent.\\n\\\" 'Be it ordained by the city council of the city of Newport.\\n\\\" 'Section 1. That the office of city watch or police is hereby created and established for the city of Newport, the incumbent of which shall hold office during the term of the city council electing him, and until his successor is elected and qualified; provided that such office may be vacated, or the incumbent removed therefrom, at any time by a majority vote of the city council, upon three days' notice in writing, served upon him previous to the time of taking such vote.\\n\\\" 'Sec. 2. That the night 'watchman or policeman shall be elected every two years, and at the first regular meeting of a new city council, or as soon thereafter as practicable. Any member of the council is authorized to nominate a candidate for such office, and the candidate receiving a majority vote of the council shall be declared elected.\\n\\\" 'See. 3. The watchman or policeman so, elected shall receive as compensation for his services fifty dollars per month, and in addition thereto shall receive the same fees allowed by law to constables for similar services; provided the same are taxed in the costs and collected from the defendant.\\n\\\" 'Sec. 4. The watchman or policeman shall within ten days from his election enter into bond to said city of Newport with good and sufficient securities to be approved by the city council in the sum of one thousand dollars, conditioned that he will obey all orders of the mayor, or, in his absence, the mayor pro tem.; that he will execute all process to him directed or delivered, and pay over monthly all moneys or city scrip or other valuables received by him by virtue of his office to the city council or the parties entitled thereto, and in [every] respect discharge the duties of watchman or policeman according to law and the ordinances of said city.\\n\\\" 'Sec. 5. If said city watchman or policeman shall fail to enter into said bond within the time herein prescribed, then such office shall be declared vacant, unless further time be given him by the city council to make the bond.\\n\\\" 'See. 6. The city watchman or policeman shall be a conservator of the peace throughout the city of Newport. He shall execute all process, orders or notices to him directed by the mayor, council, or city attorney, delivered to him for that purpose. It shall be his further duty to suppress all riots, affrays, fighting, and unlawful assemblies, and shall keep the peace and cause all offenders to be arrested and taken before the mayor or some magistrate to be dealt with according to the ordinances of the city of Newport, or the laws of the state, and shall well and truly present to the proper officers all offenders against the ordinances of said city and the laws of the state, which shall come within his knowledge. He shall, when necessary for his protection or assistance in getting around through the streets, alleys and drives of the city, and in all places where he may think any person or persons are violating any ordinance of the city, or the laws of the state, carry a lantern, and shall also carry a billy or club, and shall, when on duty, and in search of offenders of any ordinance of the 'city or laws of the state, or guarding prisoners, together with the persons summoned by him to aid him in the discharge of such duty, be permitted to carry a pistol, as provided by section, 1498 of Sandels & Hill's Digest, and at all times when on duty he shall wear some sufficient sign or badge. He shall have [authority] at all times, when necessary to preserve the peace of the city, or to secure the citizens thereof from personal violence, and their property from fire and unlawful depredations, to summons any bystander or citizen of the city, or as many thereof as may be deemed necessary, to assist him in making arrests, suppressing riots, affrays, and unlawful assemblies, and taking the offenders before the mayor, or some magistrate, to be dealt,with according to law, or to jail to await his or their trial; and any person failing to obey such summons or order shall, upon conviction before the mayor, be fined in any sum not exceeding ten dollars.\\n\\\" 'See. 7. That the city watchman or policeman shall at all times be under the general superintendence of the mayor. He shall go on duty at 6 p. m., and remain until 6 a. m., unless otherwise ordered by the mayor.\\n\\\" 'Sec. 8. That this ordinance be in force and take effect from and after its publication.' \\\"\\nEvidence was adduced tending to prove that the plaintiff rendered services in various cases as night watchman or policeman, and that the defendant collected the fees allowed for such services.\\nThe court instructed the jury, over the objections of the defendant, as follows:\\n\\\"No. 1. This is an action by plaintiff, Walter Campbell, against T. S. Stephens, for certain fees, which he alleges the said Stephens collected, which were due him as night watchman for services rendered by him as such night watchman and police officer.\\n\\\"No. 2. The city ordinance creates the office of night watchman, and fixes his fees for his services at such amount as are allowed constables for similar service.\\n\\\"No. 3. [Section 3328, Sand. & H. Digest of statutes of Arkansas.]\\n\\\"No. 4. Now, if you find, from a preponderance of evidence in the case, that the defendant collected fees due plaintiff for services as night watchman and police officer, your verdict may be for the plaintiff in such sum as you may find the defendant has collected since his appointment under his appointment, after the publication of the ordinance creating the office of night watchman or police officer.\\\"\\nAt the request of the defendant the court gave the following instruction: \\\"The jury are instructed that if you find for the plaintiff, yon will say in what cases you find he is entitled to recover, and specify the items in each.\\\"\\nThe jury returned the following verdict: \\\"We, the jury, find for the plaintiff.\\nCity of Newport v. Jno. Holloway, 1 arrest, .75..........................$ 75\\nCity of Newport v. Mattie Kennedy, 1 arrest, .75; summoning 3 witnesses, .75; attending court, .50.................... 2 00\\nCity of Newport v. James O'Briau, 1 arrest, .75; attending court, .25; serving commitment.......................... 1 75\\nCity of Newport v. J. N. S. White, 1 arrest, .75; attending court, .25; com. to jail, .75............................. 1 75\\nCity of Newport v. Chas. Curtin, 1 arrest, .75; attending court, .25; com. to jail, .75............................. 1 75\\nCity of Newport v. Foster Bates, 1 arrest, .75; attending court, .50; com. to jail, .75 . 2 00\\nCity of Newport v. Lizzie Wilkins, 1 arrest, .75.............. 75\\nCity of Newport v. William Johnson, 1 arrest, .75; attending court, .25; com. to jail, .75.............................. 2 00\\nCity of Newport v. Maggie Taylor, 1 arrest, .75......................... 75\\nCity of Newport v. Walter Jones, 1 arrest, .75.......................... 75\\nTotal......................$14 00\\n\\\"M. S. Littleton, Foreman.\\\"\\nThe fees specified in the verdict of the jury were for services rendered by the plaintiff as night watchman or policeman. Judgment was rendered in accordance with the verdict, and the defendant appealed.\\nThe statutes of this state provide that cities of the first and second class \\\"shall have power to establish a city watch or police; to oi'ganize the same under the general superintendence of the mayor; prescribe its duties and define its powers in such manner as will most effectually preserve the peace of the city, secure the citizens thereof from personal violence, and their p 'operty from fire and unlawful depredations.\\\" Sand. & H. Hi.g, \\u00a7 5204. They also provide: \\\"All appointments of officei's by any council shall be made viva voce, and the concurrence of a like majority [that is, a majority of the whole number of members elected to the council] shall be required; the names of those voting, and for whom they voted, on the votes resulting in the appointment, shall be recorded, and all such voting shall be public.\\\" Id. \\u00a7 5158.\\nIn this case the appellee, Campbell, introduced the minutes of the proceedings of the city council of Newport, which were had on the 4th day of January, 1897, to show that he was appointed or elected night watchman of the city of Newport. At that time no such office was in existence. On the 15th day of February, 1897, the city council of the city of Newport passed an ordinance, and thereby ordained that the office of the city watch or police be created for the city of Newport, and that the incumbent thereof shall hold the same during the term of the city council electing him, and until his successor is elected and qualified. Appellee does not claim or pretend that he was appointed or elected night watchman by the city council since the passage of the ordinance creating that office, but contends that he was at least a de facto officer, and that his title to the office cannot be inquired into in a collateral proceeding. He wras, obviously, not elected,\\u2014first, because the city council of New-p n't had not created the office of night watchman at the time he was nominated for that position by the mayor, and was voted for by members of the city council, and, in the second place, if there had been such an office, he was not legally elected, a majority of t ie members of the council not having concurred in his election.\\nAssuming that he was a night watchman de facto, is he entitled to recover the fees allowed for the services rend. red by him in that capacity? It is true that the acts of a de Uicto officer aie valid as respects the rights of third persons. But the rule is different when he seeks to recover a salary or fees which rest upon the title to the office. As said in Andrews v. Portland, 79 Me. 490: \\\"A de facto officer has no legal right to the emoluments of the office, the duties of which he performs under color of an appointment, but without legal title. He cannot maintain an action for the salary. His action puts in issue his legal title to the office, and he cannot recover by showing merely that he was an officer de facto.\\\" In Nichols v. McLean, 101 N. Y. 526, the court says:' \\\"It is abundantly settled by authority that an officer de facto can, as a general rule, assert no right of property, and that his acts are void as to himself, unless he is also an officer de jure.\\\" In Cro. Eliz. 699, the doctrine is tersely stated as follows: \\\"The act of an officer de facto, when it is for his own benefit, is void, because he shall not take advantage of his own want of title, which he must be cognizant of; but where it is for the benefit of strangers, or the public, who are presumed to be ignorant of such defect of title, it is good.' Pooler v. Heed, 73 Maine, 129; State v. Carroll, 38 Conn. 449; McVeany v. Mayor, 80 N. Y. 192; Dolan v. Mayor, 68 N. Y. 274; Nichols v. McLean, 101 N. Y. 526; McCue v. County of Wapello, 56 Iowa, 698; People v. Potter, 63 Col. 127; State v. Carr, 28 Am. St. 163; Waterman v. Ry. Co., 32 Am. St. 228; Riddle v. County of Bedford, 7 Serg. & Rawle, 386; Mayfield v. Moore, 53 Ill. 428; S. C. 5 Am. Rep. 52; Mechem's Public Offices and Officers, \\u00a7 342.\\nIn Miller v. Callaway, 32 Ark. 666, the rule stated was followed, the court holding that \\\"the acts of an officer de facto only are, when they concern the public or third persons having an interest in the act done, valid, and cannot be collaterally exiled in question; yet it is also well settled that a mere color of title to the office does not avail as a protection to him in an action against him for trespass to persons or property, and that his acts, so far as he is himself concerned, are invalid.\\\"\\nUnder the statutes of this state, an officer de facto, without legal title to the office, is a usurper (Lambert v. Gallagher, 28 Ark. 451; Wheat v. Smith, 50 Ark. 267, 273), and can be removed from office by \\\"an action by proceedings at law instituted against him, either by the state or the party entitled to the office.\\\" Where he \\\"has received fees and emoluments arising from the office,\\\" he is liable therefor to the person entitled thereto, who may claim the same in the action brought to deprive him of the office, or in a separate action. If no one be entitled to the office, the same may be recovered by the state, and paid into the state treasury.\\\" Sandels & Hill's Digest, \\u00a7 7371. The fees are not his, and he is not entitled to hold them. If he collects any fees for services rendered, he holds them at sufferance.\\nIt follows from what we have said that appellee is not entitled to recover the fees allowed for services rendered by him as a night watchman or policeman, he having no legal title to that office.\\nThe judgment of the circuit court is therefore reversed, and final judgment upon the merits will be entered here in favor of the defendant.\\nWood, J., absent.\"}"
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diff --git a/arkansas/1155474.json b/arkansas/1155474.json
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+"{\"id\": \"1155474\", \"name\": \"Kenneth Bernard THOMAS v. STATE of Arkansas\", \"name_abbreviation\": \"Thomas v. State\", \"decision_date\": \"2003-05-01\", \"docket_number\": \"CR 03-406\", \"first_page\": \"123\", \"last_page\": \"123\", \"citations\": \"353 Ark. 123\", \"volume\": \"353\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T21:34:37.910565+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Kenneth Bernard THOMAS v. STATE of Arkansas\", \"head_matter\": \"Kenneth Bernard THOMAS v. STATE of Arkansas\\nCR 03-406\\n110 S.W.3d 249\\nSupreme Court of Arkansas\\nOpinion delivered May 1, 2003\\nKaren Walker-Knight, for appellant.\\nNo response.\", \"word_count\": \"134\", \"char_count\": \"782\", \"text\": \"Per Curiam.\\nAppellant Kenneth Bernard Thomas, by and through his attorney, Karen Walker-Knight, has filed a motion for rule on clerk. Ms. Walker-Knight states in the motion that her motion to extend the time to file the record was not filed in a timely fashion due to a mistake on her part.\\nWe find that such an error, admittedly made by an attorney for a criminal defendant, is good cause to grant the motion. See In Re Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).\\nThe motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.\"}"
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diff --git a/arkansas/1174841.json b/arkansas/1174841.json
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+"{\"id\": \"1174841\", \"name\": \"James BURGE d/b/a JAMES BURGE PHOTOGRAPHY v. PULASKI COUNTY SPECIAL SCHOOL DISTRICT et al\", \"name_abbreviation\": \"Burge v. Pulaski County Special School District\", \"decision_date\": \"1981-03-02\", \"docket_number\": \"80-250\", \"first_page\": \"67\", \"last_page\": \"70\", \"citations\": \"272 Ark. 67\", \"volume\": \"272\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T22:28:55.236179+00:00\", \"provenance\": \"CAP\", \"judges\": \"Purtle, J., not participating.\", \"parties\": \"James BURGE d/b/a JAMES BURGE PHOTOGRAPHY v. PULASKI COUNTY SPECIAL SCHOOL DISTRICT et al\", \"head_matter\": \"James BURGE d/b/a JAMES BURGE PHOTOGRAPHY v. PULASKI COUNTY SPECIAL SCHOOL DISTRICT et al\\n80-250\\n612 S.W. 2d 108\\nSupreme Court of Arkansas\\nOpinion delivered March 2, 1981\\nNapper, Wood, Hardin, Grace, Downing & Allen, PA., for appellant.\\nHenry J. Osterloh, for appellee.\", \"word_count\": \"834\", \"char_count\": \"4996\", \"text\": \"George Rose Smith, Justice.\\nOur Unfair Practices Act, modeled after the federal Robinson-Patman Act, prohibits anyone engaged in the production, distribution, or sale of any commodity or service from paying secret rebates, commissions, or unearned discounts to some purchasers on terms not extended to all purchasers, where such payments tend to destroy competition. Ark. Stat. Ann. \\u00a7 70-301 and -307 (Repl. 1979). The appellant, Burge Photography, brought this action for an injunction and triple damages, alleging that the two defendants, Pulaski County Special School District and Phillip's Photography, had engaged in specified practices that violated the Act.\\nThe School District filed a motion to dismiss, on the ground that the complaint did not state a cause of action against it. The trial court apparently treated the motion as one for summary judgment under Civil Procedure Rule 12 (c), because depositions and opposing briefs were considered by the court in passing upon the motion, and we also so treat it. This appeal from the order dismissing the action against the School District presents an issue of statutory construction under Rule 29(l)(c).\\nFor some years before 1979 the principal of one of the District's schools, Sylvan Hills High School, had been taking what amounted to informal bids from photographers for the exclusive privilege of taking the senior class's annual pictures. There was no fixed procedure, but photographers knew by word of mouth when the school would be making its yearly contract and were in the practice of submitting proposals at the proper time. In at least one of those prior years the plaintiff Burge obtained the contract in return for a payment of $2,000 to the school.\\nIn 1979 there were four competitors for the contract. Phillip's Photography submitted a detailed proposal fixing certain prices to be paid by the members of the class for individual pictures selected from a number of proofs. The proposal also required Phillip's to pay a \\\"commission\\\" to the school of either $2,500 or 15% of the gross sales to students, whichever was greater. Burge submitted a somewhat different proposal by which he would take the pictures and sell them to the school at a discount, with the school reselling them to the students at specified prices. If every student bought the most expensive package, the school's profit on the Burge contract would be $2,512.50. We need not discuss the other two bids, which were individual proposals also contemplating some profit to the school. Through the years the school used the annual profit for school purposes, such as contributing it to the cost of the school yearbook.\\nIn 1979 the school accepted the proposal submitted by Phillip's, on the ground that it was the most profitable, and so informed Burge. Burge then brought this action under the Unfair Practices Act. We agree with the trial court's finding that, for two reasons, Burge has failed to show any violation of the Act by the School District.\\nFirst, the Act provides a remedy only in favor of one seller against another seller, not in favor of a seller against a buyer or vice versa. In Beam Bros. Contractors v. Monsanto Co., 259 Ark. 253, 532 S.W. 2d 175 (1976), we held that the Act fosters competition for the primary benefit of the public by protecting dealers, especially small dealers, from unfair competition by large dealers. That is not the situation before us. Burge was a seller of photographs. The School District was either a buyer or an agent of the student (or parent) buyers. Hence the Act does not create a cause of action in Burge against the District.\\nSecond, the Act prohibits only the secret payment of what are commonly referred to as \\\"kickbacks.\\\" Here there was no secrecy as between the parties governed by the Act. The competition among rival photographers for the annual contract was completely open. Burge not only knew all the facts, but also had won the contract himself in a prior year and submitted a proposal in 1979. The principal testified that the payment of the commission was known to the assistant principals, the bookkeeper, the annual sponsor, and the entire annual staff. He said he had never felt any need to inform the students (or their parents) of the commission, but the contract was a matter of public record for anyone to examine. We are not called to say, and do not say, whether it was proper for the Sylvan Hills school to make a profit not affirmatively disclosed to the parents who presumably paid for their children's pictures at the prices fixed by the photographer. We merely hold that no violation of the Unfair Practices Act on the part of the School District has been shown.\\nAffirmed.\\nPurtle, J., not participating.\"}"
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diff --git a/arkansas/12184522.json b/arkansas/12184522.json
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+"{\"id\": \"12184522\", \"name\": \"Jason BOWMASTER, Appellant v. CITY OF JACKSONVILLE, Arkansas, Arkansas Municipal League, and Death & Permanent Total Disability Trust Fund, Appellees\", \"name_abbreviation\": \"Bowmaster v. City of Jacksonville\", \"decision_date\": \"2016-11-30\", \"docket_number\": \"No. CV-16-173\", \"first_page\": \"526\", \"last_page\": \"530\", \"citations\": \"507 S.W.3d 526\", \"volume\": \"507\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Arkansas Court of Appeals\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T02:14:27.969184+00:00\", \"provenance\": \"CAP\", \"judges\": \"Abramson and Kinard, JJ., agree.\", \"parties\": \"Jason BOWMASTER, Appellant v. CITY OF JACKSONVILLE, Arkansas, Arkansas Municipal League, and Death & Permanent Total Disability Trust Fund, Appellees\", \"head_matter\": \"2016 Ark. App. 572\\nJason BOWMASTER, Appellant v. CITY OF JACKSONVILLE, Arkansas, Arkansas Municipal League, and Death & Permanent Total Disability Trust Fund, Appellees\\nNo. CV-16-173\\nCourt of Appeals of Arkansas, DIVISION I.\\nOpinion Delivered November 30, 2016\\nMartin Law Firm, Jasper, by: Aaron L. Martin, Fayetteville, for appellant.\\nKatie Bodenhamer, for appellees.\", \"word_count\": \"1795\", \"char_count\": \"11158\", \"text\": \"PHILLIP T. WHITEAKER, Judge\\n| Appellant Jason Bowmaster appeals a decision of the Arkansas Workers' Compensation Commission (\\\"Commission\\\"), which concluded that he was not entitled to a permanent impairment rating for dys-phasia or for an alleged traumatic-brain or closed-head injury; that he was entitled to a wage-loss disability rating of only 50 percent; and that the appellees (collectively referred to as \\\"the City\\\") were entitled to an offset for disability-retirement benefits paid to him by the Arkansas Local Police and Fire Retirement System (\\\"LOPFI benefits\\\"). After considering the record before us, we reverse and remand as to the Commission's determination of Bowmaster's impairment and wage-loss ratings and affirm as to the offset of LOP-FI benefits.\\n|\\u215e1. Impairment and Wage-Loss Ratings\\nThe Commission, .in its de novo review, reversed the decision of the Administrative Law Judge (ALJ) and found that Bowmaster had failed to prove a brain injury or dysphasia and set his impairment rating at 22 percent (2 percent for right femur, 3 percent for right knee, 8 percent for left knee, 6 percent for left shoulder, and 3 percent for pelvis). The Commission further found that Bowmaster was entitled to a wage-loss benefit of '50 percent. Bow-master filed a timely notice of appeal from the Commission's opinion, which is now before this court. Bowmaster contends that the Commission exceeded its authority when it found that he had not sustained a brain injury or dysphasia. He ' argues that only the degree of impairment, not the existence of an injury, was in dispute. We agree. A review of the facts and the procedural history is important to an understanding of our conclusion.\\nOn March 19, 2012, Bowmaster suffered multiple compensable injuries when he was intentionally run over by a van while working as a firefighter for the City of Jacksonville. The City initially accepted compensability and paid medical and temporary total-disability benefits to Bow-master. Bowmaster and the City were not able to reach an agreement on the issues of permanent partial disability, permanent and total disability or wage loss, attorney's fees, and offset of benefits. These issues proceeded to a hearing before the ALJ.\\nThe ALJ issued two prehearing orders relating to the issues to be litigated between Bowmaster and the City. In the first order, the ALJ listed the following stipulations of the parties:\\n|sThe parties stipulated to an employee-employer-carrier relationship on March 19, 2012, at which time the claimant sustained multiple compensable injuries at a compensable rate of $546.00/ $410.00. Medical expenses, total temporary disability benefits until the end of the healing period. (September 25, 2013) and anatomical impairment totaling 22% (14% brain, 7% knee, 2% shoulder) have been accepted.\\nThe order listed the issues to be litigated as \\\"additional anatomical impairment (for the hip and brain); permanent total disability or wage loss; attorney's fees; offset of benefits, Ark. Code Ann. \\u00a7 11-9-411, and contempt.\\\" In the second order, the ALJ once again designated the issues to be litigated as \\\"anatomical impairment (hip and brain); wage loss, controversions; attorney's fees; fund liability; and contempt; offset of LOPFI benefits.\\\" The order directed the parties to advise the Commission, in writing, of any corrections or additions within ten days. Neither party did so.\\nBowmaster and the City proceeded to a hearing on the issues set forth in the two prehearing orders. At the beginning of the hearing, the ALJ noted that the issues to be resolved at the hearing were \\\"anatomical impairment of the hip and brain, wage loss, attorney's fees, Fund liability, contempt and an offset of benefits.\\\" Counsel for the City agreed with the ALJ's assessment. Concerning the anatomical impairment ratings, counsel for Bowmaster, however, asked for some clarification of the issues, and the following colloquy occurred:\\nCounsel FOR Bowmaster: No, Your Honor, I just wanted to make sure that we were clear on what ratings we are fighting over, I guess.\\nALJ: Okay.\\nCounsel for Bowmaster: The differences I see is the left shoulder with the 6% from Rosenzweig, a 29% for the head injury. And then, let's see, [the City] accepted 2% to the left shoulder, U% to the head.\\n14ALJ: Do you want to respond?\\nCounsel for the City: Your Honor, I think the second paragraph of the contentions set forth [our] contentions with respect to anatomical impairment.\\n(Emphasis added.)\\nAfter the hearing, the ALJ found that, based on the evidence before it, Bowmas-ter was entitled to a 49 percent impairment rating to the body as a whole, which included an impairment of 29 percent for a closed-head injury and 10 percent for dys-phasia. The ALJ further found that, while Bowmaster had failed to prove that he was permanently and totally disabled, he had proved wage loss of 70 percent. The City appealed the AL J's decision as it pertained to \\\"the claim of anatomical impairment\\\" and \\\"the extent of wage loss disability.\\\" Bowmaster cross-appealed the ALJ's decision that he was not permanently and totally disabled.\\nFrom the record before us, the City accepted an anatomical impairment rating totaling 22 percent. Within this impairment rating, the City specifically accepted 14 percent as relating to the brain. The ALJ then listed the 22 percent rating, including the 14 percent as relating to the brain, as a stipulation of parties. At no point in its multiple prehearing questionnaires did the City ever expressly dispute Bowmaster's claim that he had suffered a brain injury or dysphasia. Rather, the pre-hearing responses submitted by the City and the uncontested issues listed in the prehearing orders filed by the ALJ indicate that the only disagreement between the parties was the extent of those injuries and the additional anatomical rating for permanent impairment, if any, that should be given. The ALJ stated in | Sits remarks prior to the hearing and then in its written opinion that the issues to be resolved related to whether Bowmaster had sustained additional anatomical impairment. At no time did the City voice its disagreement with the scope of the issues to be presented at the hearing or affirmatively represent to the ALJ that it was disputing the existence of the injury itself. It is abundantly clear that the only issue before the Commission with regard to Bowmaster's brain injury and dysphasia was the amount of additional impairment, if any, to which he was entitled.\\nArkansas Code Annotated section 11\\u20149\\u2014 711(b)(4)(A) (Repl. 2012) gives this court the authority to reverse the Commission's decision if the Commission acts without or in excess of its powers. The Commission, by deciding an issue not in dispute and not properly before it, acted in excess of its powers. Accordingly, we reverse and remand for the Commission to assess what, if any, additional impairment rating should be assigned to those injuries. Additionally, because the Commission's wage-loss calculations were based, in part, on its improper determination of Bowmaster's permanent impairment rating, we remand to allow the Commission to reexamine its findings based on a proper impairment-rating calculation.\\nII. Offset of Benefits\\nBoth the ALJ and the Commission found for the City on the issue of whether it was entitled to an offset for wage-loss benefits from LOPFI. The City's entitlement to an offset is a question of statutory interpretation and application. The question of the correct interpretation and application of an Arkansas statute is a question of law, which we decide de novo. St. Edward Mercy Med. Ctr. v. Howard, 2012 Ark. App. 673, 424 S.W.3d 881. It is for | fithis court to decide what a statute means. Id. In deciding what a statute means, the interpretation of a statute by the agency charged with its execution is highly persuasive, and, while not binding on this court, will not be overturned unless it is clearly wrong. Id. When we construe the workers' compensation statutes, we must strictly construe them. Id. Strict construction is narrow construction' and requires that nothing be taken as intended that is not clearly expressed. Id. The doctrine of strict construction requires this court to use the plain meaning of the language employed. Id.\\nBowmaster claims that the LOPFI benefit plan does not fall within the group of entities listed in Arkansas Code Annotated section 11-9-411 and is therefore not governed by its offset provisions. Arkansas Code Annotated section 11\\u20149\\u2014411(a)(1) states that\\n[a]ny benefits payable to an injured worker under this chapter shall be reduced in an amount equal to, dollar-for-dollar, the amount of benefits the injured worker has previously received for the same medical services or period of disability, whether those benefits were paid under a group health care service plan of whatever form or nature, a group disability policy, a group loss of income policy, a group accident, health, or accident and health policy, a self-insured employee health or welfare benefit plan, or a group hospital or medical service contract.\\nThe overriding purpose of this section is to prevent a double recovery. Henson v. General Electric, 99 Ark. App. 129, 257 S.W.3d 908 (2007). The list of entities subsequently addressed by the statute in that subsection in no way limits the type of benefits for which the offset is available. Rather, the provision indicates a legislative intent to prevent such a narrow interpretation of the types of benefits to which the offset pertains. The only exception to this general rule is found in subsection (a)(2) of the statute, which is not applicable here.\\n|7Moreover, our court has previously found that benefits payable to an employee through LOPFI are subject to the offset provisions of the statute, see Brigman v. City of W. Memphis, 2013 Ark. App. 66, and our legislature has not felt the need to amend the statute to provide otherwise. \\\"The General Assembly is presumed to be familiar with the appellate courts' interpretation of its statutes, and if it disagrees with those interpretations, it can amend the statutes. Without such amendments, however, the appellate courts' interpretations of the statutes remain the law.\\\" Miller v. Enders, 2013 Ark. 23, at 12, 425 S.W.3d 723, 730 (citing McCutchen v. City of Fort Smith, 2012 Ark. 452, at 19, 425 S.W.3d 671, 683 (internal citations omitted)).\\nBased on the foregoing, we cannot find that the Commission's interpretation of the statute as it relates to Bowmaster's LOP-FI benefits was clearly wrong. Therefore, we affirm on this issue.\\nAffirmed in part; reversed and remanded in part.\\nAbramson and Kinard, JJ., agree.\\n. Temporary total-disability benefits were paid until the end of the healing period on September 25, 2013.\"}"
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+"{\"id\": \"12385092\", \"name\": \"Debra L. MASON, Appellant v. Charles F. MASON, Appellee\", \"name_abbreviation\": \"Mason v. Mason\", \"decision_date\": \"2017-06-22\", \"docket_number\": \"No. CV-16-488\", \"first_page\": \"123\", \"last_page\": \"127\", \"citations\": \"522 S.W.3d 123\", \"volume\": \"522\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T01:41:32.264953+00:00\", \"provenance\": \"CAP\", \"judges\": \"Kemp, C.J., dissents.\", \"parties\": \"Debra L. MASON, Appellant v. Charles F. MASON, Appellee\", \"head_matter\": \"2017 Ark. 225\\nDebra L. MASON, Appellant v. Charles F. MASON, Appellee\\nNo. CV-16-488\\nSupreme Court of Arkansas.\\nOpinion Delivered: June 22, 2017\\nJames Law Firm, Little Rock, by: Bobby R. Digby II, for appellant.\\nHilburn, Calhoon, Harper, Pruniski & Calhoun, LTD., by: Sam Hilburn, North Little Rock, and Scott Hilburn, for appel-lee.\", \"word_count\": \"2195\", \"char_count\": \"13593\", \"text\": \"SHAWN A. WOMACK, Associate Justice\\nDebra Mason appeals from an order in the Pulaski County Circuit Court terminating her previous alimony award pursuant to Ark. Code Ann. \\u00a7 9-12-312(a)(2)(D) (Repl. 2015). She argues that the statute may not be applied retroactively to divorce decrees entered prior to a statutory amendment, the statute is unconstitutionally vague, and the circuit court's previous order stated the only grounds upon which alimony would terminate, rendering the statute inapplicable. We accepted certification of this case from the court of appeals on the basis that it involves issues of first impression; significant issues needing clarification or development of the law; and substantial questions of law concerning the validity, construction, or interpretation of an act of the General Assembly. See Ark. Sup. Ct. R. 1\\u20142(b)(1), (5), & (6); Ark. Sup. Ct. R. l-2(d). We hold that the mandatory termination language in the statute does not apply retroactively to automatically terminate alimony awards entered before the 2013 amendment. We therefore remand to the court of appeals to address the merits.\\nOn March 24, 2010, Charles Mason filed a complaint for divorce in the Pulaski County Circuit Court. On August 4, 2011, the court entered a divorce decree and noted that Charles is a physician who makes between $350,000 to $380,000 per year, while Debra, who has an accounting degree, had not worked substantially during the marriage and made approximately $39,000 per year. Considering the economic discrepancy, the court awarded Ms. Mason $3,500 per month for thirty-six months and then $1,500 for an additional sixty months or until she remarried. On February 5, 2014, Debra filed a motion to modify the alimony award, and Charles responded that, based on a revision to Ark. Code Ann. 9-12-312(a)(2), his obligation to pay alimony terminated as an operation of law when she began living with her boyfriend. Debra responded by arguing that applying a 2013'Statute to a 2011 divorce decree would apply the statute retroactively, the statute was unconstitutionally vague, and the court \\\"otherwise ordered\\\" that the alimony award would not terminate,\\nOn August 1, 2014,' the circuit court entered an order finding that the statute was not. unconstitutionally vague, that Debra and her b'oyfriend \\u2022 cohabitated full-time, and that she was not entitled to any increase in alimony. On October 29, 2014, the circuit court held that applying the act to the divorce decree would not have a retroactive effect and that Charles' obligation to pay alimony ceased as a matter of law. Debra appealed, but the court of appeals dismissed for lack of a final order. Mason v. Mason, 2015 Ark. App. 644, 2015 WL 7009290. The circuit court entered a final order on February 23, 2016, and Debra timely appealed that order.\\nRetroactive Application\\nThe relevant statute provides:\\nUnless otherwise ordered by the court or agreed to by the parties, the liability for alimony shall automatically cease upon the earlier of:\\n(D) The living full time -with another person in an intimate, cohabitating relationship.\\nArk. Code Ann. \\u00a7 9-12-312(a)(2)(D) (Repl. .2015). The circuit court determined that applying .the statute to the divorce decree would not amount to retroactive application because it would only affect future alimony payments. See Bethell v. Bethell, 268 Ark. 409, 415, 419, 597 S.W.2d 576, 579, 581 (1980) (entitlement to alimony vests \\\"as ,the payments accrue\\\" and a cause of action and right to payment accrues as of that date).\\nRetroactivity is a matter of legislative intent. Bean v. Office of Child Support Enf't, 340 Ark. 286, 296, 9 S.W.3d 520, 526 (2000); Generally, statutes are construed as having only a prospective operation, unless the purpose and intention of the legislature to give them a 'retrospective effect is expressly declared or is necessarily implied from the language used. Bolin v. State, 2015 Ark. 149, at 4, 459 S.W.3d 788, 791; Bean, 340 Ark. at 296, 9 S.W.3d at 526; Gannett River States Pub. Co. v. Ark. Judicial Discipline & Disability Comm'n, 304 Ark. 244, 248, 801 S.W.2d 292, 295 (1990). In the absence of such legislative intent, we have observed a strict rule of construction against retroactive operation and indulge in the presumption that the legislature intended statutes, or amendments thereof, to. operate prospectively only. Evans v. Hamby, 2011 Ark. 69, at 11, 378 S.W.3d 723, 730.\\nHere, rather than analyzing for a change in circumstances that would cause it to exercise its sound discretion to terminate alimony, the circuit court's order applied a 2013 statutory amendment to automatically terminate the alimony provision of its previous divorce decree based on a ground that did not require automatic termination when the decree was entered. This termination as a matter of law amounted to a retroactive application of the current statute. Neither party argues, and nothing in the statute or the legislative history indicates, that the General Assembly intended for this statute to apply to previous alimony awards. See Ark. Code Ann. \\u00a7 9-12-312; Act 1487 of 2013. We therefore hold that Act 1487 does not automatically terminate alimony awards entered before August 16, 2013.\\nOur analysis today is limited to the certified question concerning the mandatory automatic-termination language of the statute and places no limitation on a circuit court's historic ability to alter or terminate its own alimony awards based on changed circumstances, including cohabitation in an intimate relationship. See Ark. Code Ann. \\u00a7 9-12-314 (Repl. 2015); Bracken v. Bracken, 302 Ark. 103, 105, 787 S.W.2d 678, 679 (1990).\\nHaving answered the certified question, we remand the case to the court of appeals to address the merits and all other unaddressed issues on appeal. Bales v. City of Fort Smith, 2017 Ark. 161, 518 S.W.3d 76.\\nCertified question answered; remanded to the court of appeals.\\nKemp, C.J., dissents.\\n. Appellant also argues that the circuit court erred in its initial alimony award and failure to later modify the award based on a change in circumstances. Additionally, she challenges the circuit court's determination that a retirement account was nonmarital property.\\n. We note that the briefs the court of appeals certified to us are deficient. The appellee raised his statutory argument in a motion for summary judgment. Debra filed a response and Charles filed an additional reply. The circuit court held a hearing on May 5, 2014, and issued an order on June 17, 2014, denying the appellee's motion for summary judgment. None of the mentioned pleadings, hearings, orders, or briefs and exhibits are included in the abstract or addendum.\\nOur rules require that the parties include in the abstract and addendum everything that is essential to our understanding and ability to decide the issues on appeal. See Ark. Sup. Ct. R. 4-2(a)(5), (8) (2016). We typically require rebriefing when the briefs are insufficient for us to address the merits. Ark. Sup. Ct. R. 4-2(b) (2016); Unum Life Ins. Co. of Am. v. Edwards, 361 Ark. 150, 152, 205 S.W.3d 126, 127 (2005). We nevertheless did not order rebriefing from this court because we were able to answer the certified question without the additional information. We remand to the court of appeals to address the briefing deficiencies and the underlying merits of the case. It is unfortunate that this case was certified to our court in its current state. We note that with twelve judges, twenty-four law clerks, and four staff attorneys, the court of appeals has sufficient resources to spot such deficiencies. In the future, we expect the court of appeals to ensure that the briefs comply with our rules prior to certifying a case to this court.\\n. Appellant appealed the circuit, court's order but tire court of appeals dismissed her appeal for lack of a final order. Mason v. Mason, 2012 Ark. App. 393, 2012 WL 2337861.\\n. The court of appeals additionally certified questions regarding whether the statute is unconstitutionally vague and whether the circuit court \\\"otherwise ordered\\\" the conditions on which alimony would terminate such that Ark. Code Ann. \\u00a7 9-12-312(a)(2)(D) was inapplicable. We decline to address these questions. First, since we have already concluded that the mandatory termination provision of the statute does not apply retroactively to automatically terminate the alimony award, we decline to further address the constitutionality of the statute. Second, whether the circuit court \\\"otherwise ordered\\\" when alimony would terminate is a question of fact that turns on the merits rather than an issue of statutory interpretation that we must resolve.\"}"
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+"{\"id\": \"12657452\", \"name\": \"Jessica D. VANGILDER, Appellant v. STATE of Arkansas, Appellee\", \"name_abbreviation\": \"Vangilder v. State\", \"decision_date\": \"2018-08-29\", \"docket_number\": \"No. CR-17-824\", \"first_page\": \"413\", \"last_page\": \"417\", \"citations\": \"555 S.W.3d 413\", \"volume\": \"555\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Court of Appeals of Arkansas, DIVISION IV\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-27T21:08:02.430939+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"\", \"parties\": \"Jessica D. VANGILDER, Appellant\\nv.\\nSTATE of Arkansas, Appellee\", \"head_matter\": \"Jessica D. VANGILDER, Appellant\\nv.\\nSTATE of Arkansas, Appellee\\nNo. CR-17-824\\nCourt of Appeals of Arkansas, DIVISION IV.\\nOpinion Delivered August 29, 2018\\nMylissia M. Blankenship, for appellant.\\nLeslie Rutledge, Att'y Gen., by: Ashley Argo Priest, Ass't Att'y Gen., for appellee.\", \"word_count\": \"1594\", \"char_count\": \"9697\", \"text\": \"LARRY D. VAUGHT, Judge\\nJessica Vangilder appeals the Faulkner County Circuit Court's order revoking her probation. We affirm in part and reverse in part.\\nOn April 12, 2017, Vangilder pled guilty to violating Arkansas Code Annotated section 5-64-419(b)(1)(A), possession of a controlled substance; section 5-64-443(a)(2), possession of drug paraphernalia; and section 5-35-103(b)(4)(A), theft of property. She was sentenced to probation. On May 10, 2017, the State filed a revocation petition alleging that Vangilder violated the terms and conditions of her probation by failing to report, failing to pay fines and fees, and failing to abstain from illegal substances.\\nThe Faulkner County Circuit Court held a bench trial on June 23, 2017. The State's sole witness was probation officer Stephanie Turner, who testified that Vangilder failed to report to the probation office on May 4, and May 9, 2017; owed $490 in unpaid supervision fees and $1,345 in unpaid fines and costs; had not completed her community service obligations; and had failed an alcohol screen on April 27, 2017. The defense called no witnesses.\\nAt the conclusion of the bench trial, the court revoked Vangilder's probation, stating,\\nCR-17-41, she had two counts. The Theft of Property was disposed of, I think, in the first case. She did two months in the County Jail. On the Class D felonies to which she pled guilty to probation in that case, I'm going to sentence her to an additional 36 months in the Arkansas Department of Corrections, and those two sentences will run consecutively.\\nThe court's statement references the fact that Vangilder was originally sentenced to two months in the county jail on the theft-of-property charge with no probation. The original order also reflected a jail-time credit of eighty-six days, meaning that Vangilder had fully served her sentence on that charge at the time of the original sentencing order.\\nDespite the court's verbal pronouncement, its subsequently filed order imposed two thirty-six-month sentences on the two underlying felonies and twelve months on the theft-of-property misdemeanor. Vangilder filed a timely appeal.\\nPursuant to Arkansas Code Annotated section 16-93-308(d) (Repl. 2017), a circuit court may revoke a defendant's probation at any time prior to the expiration of the period of probation if it finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of the probation. Springs v. State , 2017 Ark. App. 364, at 3, 525 S.W.3d 490, 492. \\\"Thus, to sustain a revocation, the State need show only that the defendant committed one violation.\\\" Id. , 525 S.W.3d at 492. The State's burden of proof in a revocation proceeding is less than is required to convict in a criminal trial, and evidence that is insufficient for a conviction thus may be sufficient for a revocation. Id. , 525 S.W.3d at 492. When the sufficiency of the evidence is challenged on appeal from an order of revocation, the circuit court's decision will not be reversed unless its findings are clearly against the preponderance of the evidence. McClain v. State , 2016 Ark. App. 205, at 3, 489 S.W.3d 179, 181. Appellate courts review the sufficiency of the evidence supporting revocation by viewing the evidence in the light most favorable to the State. Sisk v. State , 81 Ark. App. 276, 280, 101 S.W.3d 248, 251 (2003). This court defers to the circuit court's superior position in evaluating the credibility and weight to be given testimony. Peals v. State , 2015 Ark. App. 1, at 4, 453 S.W.3d 151, 154. Finally, only one violation of probation is required to sustain a revocation. Springs v. State , 2017 Ark. App. 364, at 3, 525 S.W.3d 490, 492.\\nVangilder argues that the State failed to introduce the terms and conditions of her probation and failed to prove that she was aware of them. This issue is unpreserved for our review because Vangilder never made a motion to dismiss or otherwise raised this argument at trial. While it is true that, when appealing a revocation, an appellant may challenge the sufficiency of evidence for the first time on appeal without having moved for a directed verdict, Cotta v. State , 2013 Ark. App. 117, at 3, 2013 WL 625735, we will not address a procedural challenge unless it was adequately preserved below. Costes v. State , 103 Ark. App. 171, 175, 287 S.W.3d 639, 643 (2008). \\\"[A]n argument that the State failed to introduce a copy of the terms and conditions of a [probation] is a procedural objection that must be raised before the circuit court.\\\" Myers v. State , 2014 Ark. App 720, at 3, 451 S.W.3d 588, 590. An appellant cannot raise this procedural argument for the first time on appeal when, at the revocation hearing, he or she did not object to the State's failure to introduce the terms and conditions of his or her probation. Cotta , 2013 Ark. App. 117, at 4. Probation conditions are not an element to be proved at the revocation hearing. Whitener v. State , 96 Ark. App. 354, 356, 241 S.W.3d 779, 781 (2006). We previously addressed this specific issue in Cotta , holding that \\\"Cotta never objected to the State's failure to introduce the terms and conditions of his suspended sentence before the trial court. Under Whitener and Costes , Cotta's argument is not preserved for appeal.\\\" Cotta , 2013 Ark. App. 117, at 4. For the same reason, we cannot address Vangilder's argument that the State failed to introduce the terms and conditions of her probation into evidence.\\nAlternatively, we note that Turner's testimony was sufficient to establish the terms and conditions of Vangilder's probation. Turner testified as to Vangilder's previous revocations, noted that an administrative officer had gone over the terms and conditions with Vangilder, and stated that signed copies of those documents were in her file.\\nVangilder next challenges the sufficiency of the evidence as to each of the court's findings that she violated the terms and conditions of her probation: she failed to report, tested positive for alcohol, failed to complete community service, and failed to pay her court-ordered obligations. The State need only prove one violation of probation to sustain a revocation. Springs , 2017 Ark. App. 364, at 3, 525 S.W.3d at 492. In this case, Turner testified that Vangilder was instructed to report on May 4, 2017, but failed to do so. Two officers then conducted a home visit on May 8, 2017, and left instructions for Vangilder to report the following day. She again failed to report to the probation office. Turner testified that, as of the date of the hearing, she had received no contact from Vangilder since April 27, 2017. Vangilder's only argument on appeal related to her failure to report is that the State failed to prove that she was aware of her obligation to report on the specified dates. We disagree. Turner's testimony established that Vangilder had been informed of the terms and conditions of her probation, including the reporting requirement, that she had failed to report at least twice, and that despite phone calls and a home visit, Vangilder made no contact with the probation office. We affirm the court's finding that Vangilder violated the terms and conditions of her probation by failing to report, and we therefore need not address any other grounds for revocation. Springs , 2017 Ark. App. 364, at 3, 525 S.W.3d at 492.\\nVangilder next argues that her sentence is illegal. She makes two points: (1) that she was sentenced on the theft-of-property misdemeanor for which she had already fully served her time, and (2) the court's pronouncement from the bench indicated that she would receive one thirty-six-month sentence for the two felonies, but the written sentencing order sentenced her to thirty-six months on each felony. Her second point has no merit; when there is a discrepancy between the judgment and commitment order and the pronouncement of sentence, it is the entered judgment and commitment order that controls. Vance v. State , 2011 Ark. 243, at 35, 383 S.W.3d 325, 347.\\nHer first point, however, warrants reversal of the revocation of her probation as to her misdemeanor theft-of-property charge. The original sentencing order sentenced Vangilder to two months in the county jail for theft of property and reflected a jail-time credit of eighty-six days, meaning that Vangilder had already served her sentence as to that charge. At the end of the revocation hearing, the court acknowledged as much, stating from the bench that the theft-of-property charge had been \\\"disposed of\\\" in the original case because \\\"she did two months.\\\" Yet the court's subsequent written sentencing order imposed a sentence of twelve months' imprisonment for the theft-of-property misdemeanor. Vangilder cites Massey v. State , 278 Ark. 625, 648 S.W.2d 52 (1983) ; Davis v. State , 169 Ark. 932, 277 S.W. 5 (1925) ; and Nelson v. State , 284 Ark. 156, 680 S.W.2d 91 (1984), for the proposition that a circuit court lacks jurisdiction to modify a sentence that has already been executed. We agree and reverse the court's revocation order as to the theft-of-property charge. Because Vangilder was not serving probation on the theft misdemeanor, the court had no authority to enter a revocation order as to that charge.\\nAffirmed in part; reversed in part.\\nAbramson and Glover, JJ., agree.\\nThis is a companion case to Vangilder v. State , 2018 Ark. App. 384, also decided today.\"}"
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+"{\"id\": \"1318869\", \"name\": \"Cloth v. Chicago, Rock Island & Pacific Railway Company\", \"name_abbreviation\": \"Cloth v. Chicago, Rock Island & Pacific Railway Co.\", \"decision_date\": \"1910-12-19\", \"docket_number\": \"\", \"first_page\": \"86\", \"last_page\": \"92\", \"citations\": \"97 Ark. 86\", \"volume\": \"97\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T21:10:34.573106+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Cloth v. Chicago, Rock Island & Pacific Railway Company.\", \"head_matter\": \"Cloth v. Chicago, Rock Island & Pacific Railway Company.\\nOpinion delivered December 19, 1910.\\n1. Eminent domain \\u2014 public use \\u2014 Under the power of eminent domain private property -can be taken only for a public use, and can not be taken without the owner\\u2019s consent for the private use of another person; and whether or not the property taken for a public use is a judicial question, which the owner has the right to have determined by the courts. (Page 88.)\\n2. Same \\u2014 what is public USE. \\u2014 In order to constitute a public use, it is necessary that the public shall be concerned in such use, and the purpose for which the property is to be used must in fact be a public -one. (Page 89.)\\n3. Same \\u2014 public USE. \\u2014 If the use for which property is desired to be condemned is a public one, the fact that private ends of others will be advanced by such public user will not defeat the right to condemn the property. (Page 89.)\\n4. Same \\u2014 public use. \\u2014 The fact that citizens of a town or the towu itself agreed to pay a portion of the compensation for land sought to be condemned by a railway company for its freight depot will not change the character of the use for which the property is desired. (Page 90.)\\n5. Same \\u2014 discretion as to exercise of power. \\u2014 To a proceeding by a railway company to condemn land for a freight depot it is no defense that the railway company owns other property in the town which has been used and is suitable for such purposes, as the courts will not control the railway company's discretion in the location of its depots. (Page 90.)\\n6. Appeal and error \\u2014 conclusiveness.\\u2014A verdict of the jury in an action at law which is supported by substantial evidence will not be disturbed on appeal. (Page 91.)\\nAppeal from Monroe Circuit Court; Eugene Lankford, Judge;\\naffirmed.\\nManning & Emerson, for appellant.\\nBuzbee & Hicks, for appellee.\", \"word_count\": \"2388\", \"char_count\": \"13439\", \"text\": \"Frauenthau, J.\\nThe appellee is a railroad corporation, and for a number of years it has, under due and legal authority, owned and operated a line of railroad in this State and through the town of Brinkley. It instituted proceedings to condemn a lot belonging to appellant situated in said town for the purpose of constructing thereon a freight depot. In its petition it alleged that it maintained a station at said town, and that in the due and proper operation of its railro\\u00e1d and the prosecution of its business it was necessary to conduct a freight depot at that place, and it asked the court to ascertain the amount of compensation which it should pay to appellant for said lot. Having deposited the amount designated by the circuit judge as the value of the property, it took possession thereof for said purpose.\\nIn her answer the appellant alleged that the property was of the value of $2,500, and that she was damaged in the additional'sum of $1,000 by reason of the appropriation thereof by appellee. She asked for a judgment against appellee for $3,500 for the property and her damages. Also, in her answer she denied that it was necessary for appellee to construct a freight depot upon her lot, and she asked that the cause be transferred to the chancery court to determine whether or not appellee had the right to condemn the same. To defeat the right to condemn the property, she alleged that prior to March 8, 1909, appellee owned a lot in the town of Brinkley upon which it had constructed a freight depot which was destroyed 'by a cyclone upon that day, and that it still owned this lot, which was suitable for the purpose of a freight depot; and that on this account it was not necessary to take her property for that purpose. It also alleged that appellee had entered into an agreement with citizens of Brinkley or the municipality itself by which it was provided that the appellee should change the location of its freight depot from the former site thereof to the lot of appellant, and that said citizens or said town would pay a certain part of the consideration for the talcing of her property. The court refused to transfer the cause to the chancery court, but proceeded to impanel a jury to determine the damages which appellant was entitled to recover by reason of the condemnation of said property. During the progress of the trial appellant offered to prove the allegations of her answer by reason of which she denied the right of appellee to condemn her property. The court refused to permit the introduction of any testimony tending to prove these facts, but only admitted testimony showing the value of her property and the damage thereto. The jury returned a verdict in favor of appellant for $1,000; and from the judgment entered thereon she has appealed to this court.\\nBy virtue of our Constitution the State's right of eminent domlain is conceded, and the Legislature, as the representative of the State's sovereignty, or the agency to which the Legislature has granted the power, has the right to take any kind of property for public use. Const, art. 2, \\u00a7 \\u00a7 22, 23. But private property can, under the power of eminent domain, be taken only for a public use. It cannot be taken without the owners consent and appropriated solely to the private use of another person or a corporation; and whether or not the property is taken for a public use. It can not be taken without the owner's consent and to have determined by the courts. 2 Lewis on Eminent Domain (3 ed.), \\u00a7 599; Railway Co. v. Petty, 57 Ark. 359; Mountain Park Terminal Ry. Co. v. Field, 76 Ark. 239; Gilbert v. Shaver, 91 Ark. 231; 15 Cyc. 632.\\nIn order to constitute a public use, it is necessary that the public shall be concerned in such use thereof, and the purpose for which the property is to be used must be in fact a public one. 15 Cyc. 581; Railway Co. v. Petty, 57 Ark. 359. A railroad corporation is recognized as a public agency, and by the Legislature it is authorized to exercise the power of eminent domain in aid of the purposes for which it is organized. By statutory authority it is impowered to condemn private property for its right-of-way (Kirby's Digest, \\u00a7 2947) ; and the right-of-way \\\"includes all grounds necessary for sidetracks, turnouts, depots, workshops, water stations, and other necessary buildings.\\\" Kirby's Digest, \\u00a7 2958. These uses are for railroad purposes, and they are of a public character, and a railroad company has therefore the right to condemn land for all such purposes. If the use for which the property is desired is in fact a public one, then the right to condemn the property follows. The mere fact that private ends of others will be advanced by such public user will not defeat the right to condemn the property. As is said in the case of Railway Co. v. Petty, 57 Ark. 359: \\\"It is common for the interests of some individuals to be advanced, while that of others is prejudiced, by the location of railway stations and switches, when there is no motive on the part of the railway officials to discriminate between them.\\\" But the character of the use is no less public, and that public character is not changed, although private purposes will be incidentally served by the location of the railroad and its stations and buildings. And it is held in the case of Railway Company v. Petty, supra, that: \\\"The courts do not assume to interfere with the right of the company to locate its line, stations or switches,\\\" if it does not place an unreasonable restraint on the public to use same, although such location may incidentally subserve the interests of private individuals. And, as is said by the author of the article on Eminent Domain in 15 Cyc. 582: \\\"A use is not rendered a private one by the mere fact that a part or even the whole of the cost of constructing the improvement is paid by individuals, although such individuals are the persons most benefited by the improvement.\\\"\\nIn her answer the appellant admitted that the railroad company desired to condemn the property involved in this suit for the purpose of locating its freight depot thereon, and therefore that it sought to condemn it for a public use. This stamped the character of the use to which the property would be put, and the public nature of that use would not foe changed by reason of the fact that citizens of the town of Brinkley or the town itself agreed to pay a portion of the ascertained compensation for the property. It was.therefore subject to condemnation, although the town of Brinkley paid a portion of this cost.\\nBut it is urged that no necessity is shown for taking appellant's property because appellee owned other property in Brinkley which had been used and was suitable for the location of a freight depot thereon. We do not think that this contention is tenable. It is conceded that the use of the property for freight depot purposes is a public one, and that the employment of it for that purpose is a necessary public use of it. It is only urged that the particular location of the freight depot upon appellant's property is not necessary because it could be located on other property. If the purpose for which the property is sought to be used is a public one, and such use is necessary in carrying on and in facilitating its business, then the. railroad company has the right to determine what particular property it will take for such purpose. The necessity in such event of using the particular property is not affected or lessened by the fact that other property is available for such purpose. If the company has theretofore used property for such purpose, the changed condition of the town or of its 'business may require the change of the location of such use, and of this the company has the right to judge and determine. As is said in the case of Railway Company v. Petty, supra: \\\"Having determined that the sidetracks are necessary for the conduct of the company's business, the location must be left to the company's discretion.\\\" Upon this phase of this question, it is said in 2 Lewis on Eminent Domain (3 ed.), \\u00a7 604: \\\"It may be objected that there is no necessity of condemning the particular property because some other location might be made or other property obtained by agreement. But this objection is unavailing. Except as specially restricted by the Legislature, those invested with the power of eminent domain for a public purpose can make their own location according to their own views of what is best or expedient, and this discretion cannot be controlled by the courts. If the contention were well founded, the result would be that the plaintiff could not condemn any land, for every other landholder would likewise have the same right to object to his land being condemned.\\\" Cane Belt Ry. Co. v. Hughes (Tex.), 72 S. W. 1020.\\nIn the case of Chicago & E. I. Rd. Co. v. People, 222 Ill. 396, it is held that a railroad company has in the first instance the discretionary power, exercised in good faith, to locate all its passenger and freight depots. It is further held in that case that the power of a railroad company to locate and establish its depot is not exhausted when it has been once exercised, but such power is a continuing one, which may be exercised in good faith by the company; and the mere fact that it has located a depot at a certain place and used the same for many years does not estop it from changing such location. See also Chicago & Northwestern Ry. Co. v. Chicago Mechanics' Institute, 239 Ill. 197; Kansas & T. Coal Ry. v. Northwestern Coal & M. Co., 51 L. R. A. 936; St. Louis, H. & K. C. R. Co. v. Hannibal Union Depot Co., 125 Mo. 93.\\nIn her answer appellant does not allege, nor is it contended, that the entire lot is not necessary for the purposes of a freight -depot. St. Louis & S. F. Rd. Co. v. Tapp, 64 Ark. 357. If is only alleged that it is not necessary to take her property because other property is available for this purpose. This allegation was not sufficient, we think, to deprive the appellant of the right to condemn this particular property which in its discretion the company in good faith determined was necessary in the proper conduct of its business.\\nThe court did not err in refusing to transfer the cause to the equity court, nor did it err in refusing to admit the introduction of the testimony offered by appellant.\\nIt is urged that the amount of damages that was awarded by the jury to appellant was inadequate, and was contrary, not only to the preponderance of the evidence, but to undisputed testimony, which showed the value of the property was larger than the amount of the verdict. A number of witnesses testified relative to the value of the property involved in this case. Some of the witnesses placed its value at $250. The appellant claimed that it was of the value of $2,000; and there was testimony tending to prove that she had been offered from $1,250 to $1,500 therefor. But the great majority of the witnesses testified that the property was of the value of from $500 to $700. The value of the property and the damages whioh appellant sustained by reason of the condemnation thereof was a question of fact which it was the province of the jury to determine. If there is substantial evidence to sustain this finding of the jury, then, under the repeated rulings of this court, such finding should not be disturbed. The jury returned a verdict in favor of appellant for $x,ooo, and we think there was substantial evidence to sustain that finding. St. Louis, I. M. & S. Ry. Co. v. Theo. Maxfield Co., 94 Ark. 135.\\nThe judgment is accordingly affirmed.\"}"
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+"{\"id\": \"1329186\", \"name\": \"Railway Company v. Hackett\", \"name_abbreviation\": \"Railway Co. v. Hackett\", \"decision_date\": \"1894-01-20\", \"docket_number\": \"\", \"first_page\": \"381\", \"last_page\": \"390\", \"citations\": \"58 Ark. 381\", \"volume\": \"58\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T20:28:49.093662+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Railway Company v. Hackett.\", \"head_matter\": \"Railway Company v. Hackett.\\nOpinion delivered January 20, 1894.\\n1. Deputy sheriff \\u2014 Powers.\\nA railroad company cannot escape liability for the wrongful act of a night watchman engaged to guard its property, on the ground that such watchman was also a deputy sheriff; since an officer of the law cannot engage, as such, to guard the property of a private individual or corporation, not in the custody of the law.\\n2. Liability of master for servant's torts.\\nA railroad company is liable for the wilful and malicious act of a night watchman in its employ, in shooting another, if he was acting in the course of his employment, although he exceeded his authority.\\n3. Evidence \\u2014 General reputation.\\nA master is charged with knowledge of the general reputation of a watchman as to recklessness and unfitness for his position, where it is a matter of common knowledge in the county, and he has held the position for several yeats.\\n4. Evidence \\u2014 Objections.\\nWhere specific objections are made to testimony, all objections not specified are waived.\\nS. Irrelevant evidence \\u2014 \\u25a0 When not prejudicial.\\nPlaintiff\\u2019s deposition was read in his behalf. Oyer defendant\\u2019s objection, testimony explaining plaintiff\\u2019s absence at the trial was introduced. Held, that under the circumstances, the testimony, while improper, was not prejudicial,\\nAppeal from Pulaski Circuit Court.\\nRobert J. Lea, Judge.\\nAction by Thomas Hackett against the St. Louis, Iron Mountain & Southern Railway Company to recover for personal injuries. The facts appear in the following statement by the court:\\nThe evidence tended to show that the appellant railway company had in its employment, as night watchman, Pat Gallagher, who had served the company in that capacity for about nine years before the occurrence which is the foundation of this action, and, that, at the time of the occurrence, he was on duty as night watchman for the company ; that it was the duty of the watchman to protect the company\\u2019s depot, warehouse, buildings and cars at the foot of Rock street, in the city of Little Rock. That Gallagher, the watchman, might have authority to make arrests, he had been duly appointed, and was, a deputy sheriff of Pulaski county, in said State, at the time the shooting occurred which is referred to in the complaint.\\nOn the night of April 7th, 1890, while Gallagher was on duty as night watchman for the company, at about 10 o\\u2019clock p. M., and while he was in a room upstairs near the railroad track, he heard a noise which he thought was on one of the company\\u2019s tracks, which he supposed proceeded from the rattling of chains, when a clerk said, \\u201cSomebody is breaking into the cars.\\u201d Gallagher, with his lantern, hurried down stairs, and saw two men standing off on one side. Proceeding to the point whence the noise came, he found the appellee, Hackett, standing up, and said to him, \\u201cWhat are you doing here?\\u201d The appellee had gone in between some cars, at the freight depot at the foot of Rock street, to attend to a call of nature, and had just got through, when Gallagher said, \\u201c G \\u2014 d\\u2014 you, I have been looking for you some time,\\u201d when the appellee asked what was the matter, and Gallagher replied : \\u201cYou fellows have been doing this thing long enough, and I want you to come with me.\\u201d Appellee replied, \\u201cAll right; wait till I button up my clothes, and I will go any place with you you want me to go.\\u201d Gallagher then said \\u201cCome on,\\u201d and appellee replied, \\u201cAll right; I will go,\\u201d and took a step toward Gallagher, when Gallagher fired a pistol at the appellee, and inflicted upon him a severe injury, the ball from the pistol taking effect in the appellee\\u2019s neck, from which appellee fell over against a car, and exclaimed, \\u201c Good God ! What did you do that for ?\\u201d Gallagher replied, \\u201cCome on, G \\u2014 d\\u2014 you, or I will blow the top of your head off.\\u201d About this time two policemen arrested the parties. Gallagher had on, when arrested, two derringers and a navy-six pistol. The cars where appellee was found by Gallagher were loaded with citizens\\u2019 merchandise; and the seals of cars had sometimes been broken at the depot, and arrests had been frequently made there of persons for interfering with the seals and cars. The evidence tended to show that Gallagher was appointed deputy sheriff because he was nig'ht watchman for the railroad company, and that he never reported to the sheriff, or performed any duties ' generally, as deputy sheriff; that his salary of $50 per month was paid by the railroad company ; and that he gave no bond as deputy sheriff, and was never ordered on duty by the sheriff ; and that, in issuing his commission, the sheriff did not expect to control him, or have him subject to his orders, but that the commission was given him to authorize him to make arrests, if necessary.\\nDodge & Johnson for appellant.\\n1. The appointing and commissioning of a deputy sheriff in accordance with the law, and assigning the same to duty for the purpose of maintaining order on the premises of a railway corporation, and for the protection of its property, makes said deputy a State officer, and the corporation is not liable for the wrongful arrest or for any injuries inflicted while such officer is making an arrest in pursuance of his duties as an officer of the law. Mansf. Dig. secs. 6318, 6319, 6320 to 6325; 20 Atl. Rep. (Md.) 189; 16 S. W. Rep. 444; 34 A. & R. R. Cases, 309 ; 51 Md.. 295, 298 ; 59 Iowa, 59.\\n2. Rach .sheriff in Arkansas may appoint one or more deputies for whose official conduct he shall be liable. Gallagher was a State officer, for whose acts as such the defendant was not liable. Mansf. Dig. sec. 6318. The sheriff alone is liable. 42 Vt. 332 ; 56 Me. 211; 2 N.'H. 184; 15 Mass. 200; 1 Pick. 271; 42 Vt. 341; 17 Mass. 246; 12 id. 449; 1 Mass. 534.\\n3. The testimony of Newland and Sam Davis as to Gallagher\\u2019s reputation was incompetent. No foundation was laid by showing that the railroad company knew Gallagher\\u2019s reputation. 1 Greenleaf, Rv. sec. 54 ; 3 Bibb, 192 ; 2 Bibb, 286; 2 B. & P. 532 ; 5 S. & R. 352 ; 10 id. 55 ; 23 Pa. St. 424 ; 24 id. 408. G. W. Shinn\\u2019s testimony and Hackett\\u2019s letter should not have been admitted.\\n4. Hackett was guilty of a misdemeanor in trespassing upon the grounds of defelidant for such a purpose. It may not be a statutory offense, but it is a common law offense. Mansf. Dig. secs. 566-7; 48 Ark. 59 ; 2 Am. Crim. Daw, sec. 2002; /\\u00bf. sec. 2003. It was not necessary to have a warrant. Mansf. Dig. sec. 2412 ; 1 Am. & Rng. Rnc. Daw, p. 734 and notes ; 1 Russell Crimes (9 Am. ed.), 808.\\n5. A principal is not liable for the malicious and wilful acts of his servant, done without his knowledge or assent, though while in his employ. 43 N. Y. 569; 47 id. 128; 51 id. 298; 73 N. Y. 548; 92 Ind. 462; 61 Iowa, 574.\\nSam W. Williams and Geo. W. Shinn for appellee.\\n1. Gallagher was the watchman of defendant, and his commission was merely given him to enable him to bear arms. He was not an officer of the State, nor was the sheriff responsible for his acts. The facts of this case differ from 20 Atl. Rep. 189. The distinction between independent trespasses and the acts done in the line of duty by servants is settled by 3 Clif. 416. See Thomps. on Carriers of Passengers, p. 363; 69 Miss. 245; 13 Fed. Rep. 116. The allegations of the complaint put in issue the character of Gallagher for competency, soberness and civility, and testimony as to his general charactor was competent. 1 Gr. Rv. secs. 50, 54, etc.; 38 Pa. St. 104. Whether Gallagher acted in his ostensible capacity as a deputy sheriff, or in his real capacity as watchman for appellant, was a question of fact for the jury. 48 Ark. 177. An agent may be an officer, and also be one for whose acts the company is liable. 28 A. & R. R. Cases, 138; Cooley on Torts, p. 397 ; 22 S. W. Rep. 488. Corporations are liable for the torts of their agents or servants while in their employment and in the performance of their duty, or within the scope of their duties or employment. See Cooley on Torts, p. 120; Redfield on Railways (3d ed.), 510; 14 How. 468, 483 ; 27 Vt. 110 ; 104 Mass. 117 ; 32 N. J. 328; 19 Ohio (N. S.), 162; 21 id. 518; S. C. 8 Am. Rep. 78; 27 Md. 277 ; 57 Me. 202 ; 2 Am. Rep. 39 ; 16 id. 409 ; 19 111. 353.\", \"word_count\": \"3015\", \"char_count\": \"16873\", \"text\": \"Hughes, J.,\\n(after stating the facts). We have endeavored to fully examine and consider each of the instructions given by the court in this case, and it is our opinion that, taken together, they correctly state the law applicable to this case; that they contain no reversible error.\\nThe counsel for the appellant state, in their brief, in substance, that they base the chief ground of their objection to the verdict upon the court's refusal to declare the law as stated by them in instruction numbered five, which the court refused. This instruction is erroneous, in that it assumes that a deputy sheriff, as such, might engage to guard the property of the railroad company. An officer of the law cannot engage, as such officer, to guard the property of a private individual or corporation not in the custody of the law. The duties of a sheriff are prescribed by law. Such part of this instruction as correctly states the law is covered by the instructions given by the court. There was no error therefore in refusing this instruction.\\nThe fourth instruction asked for by the appellant railway company, and refused by the court, is erroneous, as it assumes that, if Gallagher inflicted the injury wilfully and maliciously, the company is not liable for damages resulting from the injury. Such, in our opinion, is not the law, according to the weight of authority. The intention with which Gallagher acted cannot affect the liability of the railway company, though it might affect the amount of the damages. Cleghorn v. N. Y. Cent. & H. Ry. Co. 56 N. Y. 47. 'The question is, was Gallagher, at the time he fired the pistol shot, acting in the course of his employment as night watchman for the railway company ? If he was, the company is liable in damages for any wrongful act of his in the course of his employment, resulting in injury to another, though he exceeded his authority as such night watchman. If the act was done by him in the service of the company, in the course of his employment, and injury resulted therefrom, the company is liable in damages resulting from the injury, if the act was wrongful, or performed in such a negligent manner that its negligent performance caused the injury.\\nOf course, if the act causing the injury was outside of the course of the servant's employment \\u2014 disconnected with the service of the company \\u2014 then the company would not be liable. The fact that Gallagher had been appointed a deputy sheriff, to enable him to make arrests, because he was watchman for the railroad company, could not exempt the company from liability for his acts as such watchman. If the act had been committed in the discharge of, or in the endeavor to discharge, his duties as deputy sheriff, though wrongful and in excess of his authority as deputy sheriff, the railroad company would not have been liable, though the deputy sheriff and his principal, the sheriff, might have been. But this case presents no such aspect. Ward v. Young, 42 Ark. 542 ; Brill v. Eddy, 115 Mo. 596, 22 S. W. 488 ; Cooley on Torts, p. 307 ; Krulevitz v. Eastern R. Co. 28 A. & E. R. Cases, 138 ; Priester v. Augley, 5 Rich. S. C. 44 ; Wood's Master and Servant, secs. 279, 280, and p. 543, et seq; Chapman v. N. Y. etc. R. Co. 33 N. Y. 369; Wood's Master and Servant, p.p. 303, 568 and 571; Weed v. Panama R. Co. 17 N. Y. 362 ; Wood, Master and Servant, sec. 299 ; King v. Railroad Co. 69 Miss. 245 ; 2 Wood, Ry. Raw, p. 1206 ; Green v. Omnibus Co. 7 C. B. (N. S.) 290 ; Garretzen v. Duenckel, 50 Mo. 104 ; Nashville etc. R. Co. v. Starnes, 9 Heisk. 52.\\nWhile we do not intend to enter upon an extended discussion of the principles stated, we think that a careful examination of the authorities will sustain fully the conclusions we have reached as to the law of this case.\\nIt is true that there has been a difference of opinion in the courts upon the question, whether a master is liable at all for the willful and malicious acts of his servant, resulting in injury, under any circumstances whatever, unless where they were in violadidn of a contract of carriage, or done by the master's express command ; yet the better reason and weight of authority seem to be that where such acts are performed about the master's business, in the course of the servant's employment, the servant and master are both liable.\\nThe principal case relied upon by counsel for appellant, Tolchester Beach Improvement Co. v. Steinmeier, 20 Atlantic (Md.), 189, is not like the case at bar, and does not contravene the principles announced. In that case it clearly appeared that the officer who did the injury was not acting' in the line of his employment, but was seeking only to enforce the criminal law, as he believed ; and as he was an officer, though he had accepted private employment from the company, the company was not liable for his official acts. There is a correct line of distinction in these case, which the circuit court seems to have followed in its instructions, leaving the questions of fact properly to the jury. It was not for the court to tell the jury that Gallagher, when he fired the shot, was or was not acting in his capacity of deputy sheriff, or that he was or was not acting in the course of his employment by the company as night watchman. These are questions of fact for the jury to determine, and we think the evidence warrants their verdict. The instructions asked on the part of Gallagher, and refused by the court, we have not considered, as Gallagher has not appealed.\\nThe objection to the testimony in regard to the character of Pat Gallagher, the watchman, as to recklessness and unfitness for his position, was based solely upon the ground that it was not shown that the railway company ever had any knowledge of Gallagher's reputation. It was shown that he had been in the employment of the railway company as watchman about nine years, and that his reputation was generally known, a matter of common knowledge in the county. This is sufficient to show that the company ought to have known his reputation, and to charge it with knowledge of it. 1 Whart. on Evidence, sec. 48.\\nWhere specific objections are made to testimony, all objections not specified are waived. Evanston v. Gunn, 99 U. S. 665. The testimony was clearly incompetent, but all objections to its competency were waived, other than the specific objection stated. Dunham v. Rackliff, 71 Me. 349 ; Porter v. Seiler, 23 Pa. St. 424.\\nThe testimony of G. W. Shinn as to the absence of Hackett from the trial, and the introduction of the letter of Hackett, were irregular, but Hackett's had been taken, and was read to the jury, and there was no proof that Hackett was in the employment of the defendant company at the time the letter was written. We cannot see that the company could have been prejudiced by this testimony and letters, and we think that, though improper, the admission of them was not reversible error.\\nThe judgment is affirmed.\\nThe fifth instruction asked by plaintiff, and refused by the court, is as follows:\\u2014 \\\" 5. If the jui'y find from the evidence that Pat Gallagher was a deputy sheriff duly appointed; that, as such, he was engaged in guarding the property of defendant railway company at its depot in Little Rock ; that the injury complained of was inflicted upon plaintiff by said Gallagher, while in the discharge of his duties as such deputy sheriff, then you are instructed that the railway company cannot be held liable therefor, even though you should further find from the evidence that said Gallagher overstepped the bounds of his authority as such deputy sheriff, and that the railway company was paying, and had agreed to pay, the wages of said Gallagher as deputy sheriff.\\\"\\nOn the question of the liability of a master for assaults by a servant, see note to Davis v. Houghtelin (Neb.), 14 L. R. A. 737. (Rep.)\\nPlaintiff's deposition, was read at the hearing of the ease. G. W. Shinn, one of plaintiff's attorneys, was placed upon the stand, and asked the following question, viz:\\nQ. \\\" Why is Hackett not here to-day ?\\nA. \\\" He wrote me, and I wrote back to Mr. Hackett it was not necessary for him to come, that his deposition was here. This is what he wrote me:\\n\\\"Pine Bi/cjee, Ask., December 9, 1891.\\n\\\" Yours of December 7th received, and I would like to know if it is necessary for me to be there at the trial. If it is not, let me know by Monday, or as near after as you can. I think it will be impossible for me to come without getting discharged, as I spoke about it to-day to see. If it is not really necessary that I should come, let me know and oblige.\\\"\\nTo the admission of the above testimony defendant objected.\"}"
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+"{\"id\": \"1345644\", \"name\": \"Thomas v. State\", \"name_abbreviation\": \"Thomas v. State\", \"decision_date\": \"1913-01-20\", \"docket_number\": \"\", \"first_page\": \"263\", \"last_page\": \"268\", \"citations\": \"106 Ark. 263\", \"volume\": \"106\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T00:05:44.417527+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Thomas v. State.\", \"head_matter\": \"Thomas v. State.\\nOpinion delivered January 20, 1913.\\nCriminal law \\u2014 receiving stolen goods \\u2014 evidence.\\u2014Where deceased was supposed to have stolen certain property and defendant was indicted for having knowingly received the same, evidence in the form of testimony by officers as to certain property which had been lost, and statements of claimants thereof of their ownership of the same at police headquarters, upon the recovery of the said property, after the death of the supposed thief, are inadmissible to charge defendant with receiving the same, knowing it to have been stolen.\\nAppeal from Lonoke Circuit Court \\u00a1 'Eugene Lank-ford. Judge;\\nreversed.\\n\\u2022statement by the court.\\nAppellee was indicted for the crime of knowingly receiving stolen property, and charged with having re ceived one suit of clothes, the property of Mrs. Diehl, of the value of $15, a gold cross and chain, of the value of $12, the property of Crie Ozier, one umbrella, the property of T. A. Wright, of the value of $12, one gold bracelet, the property of Kathleen Doyle, of the value of $15, and forty rare coins, the property of Levi Spitzberg, value unknown, one gold watch, the property of Mrs. Bobert Brodie, of the value of $20, certain gold rings, of the value of $40, the owners to the grand jury unknown, and also one ladies\\u2019 fur wrap, of the value of $20, the owner being unknown to the grand jury.\\nThe court overruled appellant\\u2019s motion to require the State to elect for which crime it would prosecute.\\nThe testimony shows that Alice Brown was the sister of one J. B. Brown, alias \\u201cJack the Shooter,\\u201d who had terrorized the inhabitants of the city of Little Bock, by numerous burglaries, rapes and attempted murders, during some time before he was killed while entering the house of another negro. He gave appellee.one bracelet and one watch and some rings some time during the period of two years before his death, which ornaments she wore about the neighborhood and to church, as other people used ornaments of like Mnd, except, it was shown she had not worn the bracelet upon visiting Little Bock. She resided with another brother and his wife upon a small farm in Lonoke County, near Little Bock, belonging to her brothers and herself. Upon learning of her brother\\u2019s death, she came to Little Bock, and was taken to the police station, where she was asked to disclose her knowledge of the offenses committed by her brother and questioned closely to ascertain whether she had any of the property taken by him, and she denied at first she had any of it. She admitted she did have, however, finally, upon being told that she would be put in jail otherwise. She denied any knowledge, whatever, that the property given her by her brother had been stolen, \\u2022and stated she thought her brother was amply able to make her such presents as he always dressed well, paid the bills of the farm and claimed to be in the suit pressing and real estate business in\\u2019 Little Bock, where he lived. The umbrella was found in the house, where appellant lived with Henderson Smith, another brother, and his wife, where the family were visited frequently by the deceased, Brown.\\nA great deal of testimony was introduced, showing the different crimes and outrages committed in the city of Little Bock, the property reported at police headquarters to have been stolen by persons suffering losses from burglaries and thefts and some of the witnesses were allowed to testify that certain of this property had been reported stolen by the owners thereof; and that, later, after it was recovered, they had come to police headquarters and claimed and identified it.\\nThere was much hearsay testimony of this kind introduced, over appellant\\u2019s objections. One witness stated that Mrs. Brodie had identified one of the watches as her property and made an affidavit to that effect. The prosecuting attorney, in his closing argument, was also permitted to state that Mrs. Brodie had made an affidavit that the watch belonged to her and that she had claimed it at police headquarters.\\nThe court instructed the jury, and from the judgment upon their verdict of guilty appellant brings this appeal.\\nVaughan & Akers and Trimble, Robinson S Trimble, for appellant.\\n1. The evidence does not support the verdict, because there is no evidence tending to show guilty knowledge, and none from which such knowledge may be im ferred; and because the proof was not that the property alleged to have been received by appellant was stolen, as alleged in the indictment, but that it was obtained by means of burglary. 24 Am. & Eng. Enc. of L. 45, 46, 47, 48 and 49; Kirby\\u2019s Dig., \\u00a7 1830; 78 Ark. 299; 191 Mo. 635, 4 Ann. Cas. 751, 752, 754; 105 Minn. 217; 32 Ark. 238. See also 58 Ark. 576, 578.\\n2. The court erred in admitting indiscriminate evidence of burglaries and assaults said to have been committed by the so-called \\u201cJack the Shooter\\u201d in Little Rock. 72 Ark. 586, 598; 92 Ark. 481; 84 Ark. 119; 75 Ark. 427; 54 Ark. 626; 191 Mo. 625; 21 Wend. (N. Y.), 86; 2 Bast. P. C. 780, \\u00a7 163; 2 Strob., 273; 22 S. Dak. 550, 18 Ann. Cas. 192, and notes at p. 196.\\n3. Where improper and prejudicial language is indulged in by the prosecuting attorney and is objected to by the defendant, it calls for a reproof by the court of the offender, and an'instruction withdrawing same from the jury\\u2019s consideration, and where this is not done it is reversible error. 48 Ark. 130, 131; 58 Ark. 483; 61 Ark. 130; 63 Ark. 174; 65 Ark. 389; 71 Ark. 415, 416-18; 65 Ark. 619; 69 Ark. 648; 74 Ark. 210; 88 Ark. 579; 80 Ark. 23-30; 75 Ark. 577; 72 Ark. 138; Id. 247; Id. 461; 95 Ark. 233, 237; 70 Ark. 184; Id. 305; 48 Ark. 131, 132.\\n4. The State should have been required to elect upon which count of the indictment it would proceed, and the court erred in overruling appellant\\u2019s motion to that effect. Kirby\\u2019s Dig., \\u00a7 2230; 32 Ark. 203; 33 Ark. 176; 34 Ark. 433; 36 Ark. 55; 90 Ark. 570; 92 Ark. 413.\\n5. The court should have given instruction 2, requested by appellant, to the effect that before the jury could convict they must find that appellant, at the time she received the articles, had knowledge that they were stolen; and that she was entitled to acquittal even if they found that after receiving the goods she discovered the fact that they were stolen, notwithstanding she tried to conceal them after discovering her brother was charged with their theft. 105 Minn. 217; 55 Bla. 90, 45 So. 818; 78 N.' C. 484 ; 80 S. C. 387; 31 Tex. Crim. 210, 20 S. W. 356; 9 Cox C. C. (Eng.), 95; 116 Ga. 92, 42 S. E. 389.\\nThat the court erred in refusing to charge the jury not to consider any statement made by the defendant in reference to the property in her possession which was inconsistent with her innocence, if made under threats to imprison her, etc., needs no citation of authorities.\\nHal L. Norwood, Attorney General, and William H. Rector, Assistant, for appellee; John P. Streepey, of counsel.\\n1. Where there is any substantial evidence to sup port the jury\\u2019s verdict, it will be sustained. 92 Ark. 120; Id. 590; 95 Ark. 175; Id. 324.\\nWhere it is found that the goods have been stolen and the defendant received them under such circumstances as would have put a reasonable man of ordinary powers of observation on his guard, then he is guilty of receiving stolen goods within the meaning of the law. 73 Am. Dec. (Ala.), 426, 427; 25 Am. St. Rep. (111.), 359.\\n2. There was no error in admitting evidence of various burglaries said to have been committed by \\u201cJack the Shooter\\u201d in Little Rock, the purpose thereof being to show that he and defendant\\u2019s brother were the same person.\\n3. There was no improper argument by the prosecuting attorney. Where a defendant has had a fair trial and the evidence appears sufficient to justify a conviction, the tendency is to affirm, notwithstanding technical defenses and objections. 92 Ark. 126; Id. 243; 95 Ark. 177; 96 Ark. 13; 97 Ark. 347; 98 Ark. 324-326.\\n4. The court was correct in refusing to require the State to elect upon which count of the indictment it would .proceed. 14 N. W. (Neb.), 543; 18 Ark. 543.\\n5. The court is not required to repeat instructions. No. 2 requested by appellant had already been included in substance in instructions given.\\nEvidence of defendant\\u2019s statements to officers after she had been threatened with imprisonment was properly admitted. 34 Cyc. 525, note 81.\", \"word_count\": \"1937\", \"char_count\": \"11084\", \"text\": \"Kirby, J.,\\n(after stating the facts). It is contended for reversal that the court erred in the admission of incompetent testimony and that the evidence is not sufficient to support the verdict.\\nWe have concluded that the first contention is correct. There was much hearsay testimony introduced relating to the different crimes, larcenies and burglaries, attempted rapes and murders committed in the city of Little Rock during the period of two years before the death of \\\"Jack the Shooter,\\\" which the peace officers of the city were disposed to charge largely to his account. This extended to allowing certain officials to enumerate the kind and description of the property reported lost by the owners from these depredations by whatever criminals were responsible for them, and also the recital of the statements of the claimants thereof of their ownership of same at police headquarters upon the recovery of certain property after the death of \\\"Jack the Shooter.\\\" Of course, the ownership of this watch and other property with the knowingly receiving of which appellant was charged could not be established in that way 'and the court erred in permitting the introduction of such testimony. Some of this property, which appellant is charged with receiving, knowing it to have been stolen, had been taken from the owners almost two years before it was found in the possession of the appellant, who had worn it about the neighborhood, among her friends and acquaintances and to church as freely as others of her community had worn ornaments of like kind. The testimony does not show, directly, that she had any knowledge at the time of receiving the gifts from her brother that the jewelry had been stolen, although her conduct upon inquiry of her after his death, long afterwards, indicated that she feared then that something might be wrong about it and at first denied having received any property from him. She finally admitted, however, that he had given her certain watches arid rings and a bracelet, stating that the umbrella and other things with the receiving of which she was charged had been given to her brother and his wife who lived in the same house.\\nThe evidence is by no means clear and satisfactory that appellant received any of the property, knowing it to have been stolen, but we are not able to say under all the circumstances in the case that the testimony with the reasonable inferences arising therefrom was not sufficient to support the verdict.\\nThere are many other assignments of error insisted upon but since they are not likely to occur upon another trial we do not deem it necessary to notice them.\\nThe judgment is reversed for the error indicated and the cause remanded for a new trial.\"}"
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+"{\"id\": \"1360467\", \"name\": \"Turner v. State\", \"name_abbreviation\": \"Turner v. State\", \"decision_date\": \"1922-11-06\", \"docket_number\": \"\", \"first_page\": \"443\", \"last_page\": \"450\", \"citations\": \"155 Ark. 443\", \"volume\": \"155\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T23:57:35.350578+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Turner v. State.\", \"head_matter\": \"Turner v. State.\\nOpinion delivered November 6, 1922.\\n1. Arson \\u2014 burning one\\u2019s own house. \\u2014 Under Crawford & Moses\\u2019 Dig., \\u00a7 2417, making it a felony wilfully and maliciously to burn one\\u2019s own house, the offense is committed where one burns his own house maliciously in the sense of an intention, with bad motive, of violating the law.\\n2. Arson \\u2014 burning one\\u2019s own house. \\u2014 Crawford & Moses\\u2019 Dig., \\u00a7 2417, making it a felony wilfully and maliciously to burn one\\u2019s own house, does not conflict with any natural right of one to dc what he will with his own.\\n3. Arson- \\u2014 sufficiency of evidence. \\u2014 Evidence held sufficient to warrant a jury in finding that a fire was of incendiary origin, and that defendant set the house on fire.\\n4. Witnesses \\u2014 impeachment of accused on cross-examination.\\u2014 It was not error to permit the State, on cross-examination, to cross-examine defendant concerning the finding of stolen property in his house where the inquiry was limited to the question as to his credibility as a witness.\\n5. Witness \\u2014 cross-examination.\\u2014Where, in a prosecution for arson, defendant testified that his act in removing bedclothes from the burned -house before the fire was done pursuant to a demand by a committee of citizens that he clean up his premises, it was proper to permit the State to cross-examine him as to whether the admonition of the citizens did not refer to his stopping unlawful and immoral practices, including the unlawful sale of whiskey.\\n6. Criminal law- \\u2014 conduct of trial. \\u2014 It was not error in a felony trial for the court, over defendant\\u2019s objections and on denial of his request that the jury retire, to suspend the trial to instruct the jury commissioners for the next term as to their duties in selecting jurors who would enforce the criminal laws, no reference being made to the -trial or the merits of the pending case.\\nAppeal from Little Biver Circuit Court; James S. Steel, Judge;\\naffirmed.\\nJwie B. Morrell, for appellant.\\nJ. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.\", \"word_count\": \"2412\", \"char_count\": \"13964\", \"text\": \"McCulloch, C. J.\\nAppellant was -convicted under an indictment charging him with the crime of arson, committed by burning his own house, which was situated in the town of Ashdown.\\nUnder the former statutes of this State it was decided by this court in State v. Hanna, 131 Ark. 129, that the burning of one's own house did not constitute the crime of arson, but subsequently the Legislature enacted a new statute on the subject (Acts of 1919, p. 66, Crawford & Moses' Digest, \\u00a7 2417), which reads as follows:\\n\\\"Every person who shall wilfully and maliciously burn or cause to be burned any dwelling-house or other house, although not herein specifically named, the prop erty of himself or of another person, shall he deemed guilty of a' felony, and upon conviction shall be imprisoned in the -State Penitentiary for a period of not less than two nor more than ten years.\\\"\\nIt did not constitute arson at common law for a person to burn his own house (2nd iWharton on Crim. Law, \\u00a7 1051), but our statute, quoted above, undoubtedly enlarges the definition so as to make it arson for a person to burn his own house. There can be no doubt about the meaning of the language used in the statute, and we perceive no reason why a statute to that effect should be held to be invalid. Of course, the burning must be maliciously done \\u2014 that is to say, malicious in the sense of an intention, with bad motive, of violating the law. Shotwell v. State, 43 Ark. 345. Similar statutes -have been upheld as valid in other States. State v. Rohfrischt, 12 La. Ann. 382; Shepherd v. People, 19 N. Y. 537; State v. Hurd, 51 N. H. 176; State v. Cohn, 9 Nev. 179.\\nIt was within the power of the Legislature to define the crime of arson and declare what elements should constitute that offense, and it does not conflict with any natural right of man to \\\"do what he will with his own\\\" by making it an offense to wilfully and maliciously burn his own property. We entertain no' doubt therefore as to the validity of the statute.\\nIt is next contended that the evidence is not sufficient to sustain the verdict.\\nAppellant owned two adjoining buildings in the town of Ashdown, one of which he occupied himself, the first floor as a grocery store and the second floor as a rooming-house. The other building was occupied by appellant's tenant, a colored woman by the name- of Susie Hart. Appellant is a neg-ro himself.\\nThe fire broke out in the early hours of the morning, before daybreak, and the alarm was given by appellant, who, according to the testimony of some of the witnesses, was fully dressed in the same clothes that he had worn the day before and during the early hours of the night. The fire was first discovered to be in the part of the building which was occupied by appellant. The origin of the fire was not proved, and appellant did not undertake to show how it started.\\nThe proof adduced by the State tended to show that appellant had a very small stock of goods in his store, and that he carried an excessive amount of insurance on the buildings. There was proof to the effect that the buildings were not worth more than six or seven hundred dollars and that he carried about $2,700 insurance.\\nSusie Hart and her daughter both testified that shortly before the fire appellant repeatedly approached Susie on the subject of taking out insurance on her household goods in the building, and they testified that he said the houses were \\\"compelled to burn.\\\" He made an offer to Susie Hart, according to the testimony, to take out insurance in the sum of $2,000, and that if she would agree to give him half of it in case of loss by fire he would pay the premium. Two of the witnesses testified that appellant stated that he knew he was going to the penitentiary and that he was \\\"not going to leave anything here for nobody to enjoy.\\\"\\nA man named Marsh owned a livery stable, or barn, which was located immediately back of appellant's buildings. Marsh was a farmer, living in the country, and he testified that, shortly before the fire, appellant approached him on the subject of taking out insurance, and came to see him two or three times on the subject, informing him (witness) that he was in touch with some insurance companies that would give him insurance on his building.\\nAnother circumstance shown by the iState as tending to show bad intention on the part of appellant was that the day before the fire he sent out all the bedelothing in his rooming-house to be washed, and it was not in the building on the night of the fire. Appellant undertook to explain this by saying that a committee had visited his place and told him that he must \\\"clean up\\\" the premises, that he understood this admonition literally and acted upon it. The State undertook to draw out from him the statement that the admonition by the citizens was not meant literally, but that he must put a stop to immoral and unlawful practices in his house.\\nWe are of the opinion that the evidence was sufficient to warrant the jury in finding that the fire which destroyed appellant's house was of incendiary origin, and that appellant was the one who set it on fire.\\nThe State introduced a witness, Roberta Brown by name, who testified about the alarm of fire being given, and also testified concerning the statements alleged to have been made by appellant to Susie Hart with reference to insurance on the building. This witness testified that, after the fire occurred, appellant came to see her and asked her \\\"not to tell any more than she had to.\\\" This testimony was- elicited by questions repeatedly propounded by the prosecuting attorney, and after calling her attention to her testimony before the grand jury. The witness first appeared not to be able to remember very well, but after attention was called to her testimony before the grand jury, for the purpose of refreshing her memory, she stated that she had had such a conversation with appellant as that mentioned above. There was no objection interposed by appellant's counsel to the course of examination by the prosecuting attorney, but on cross-examination counsel interrogated the witness as to why she had not, before her memory was refreshed by the questions of the prosecuting attorney, remembered this conversation with appellant. The reply of the witness was that she had forgotten about it. Counsel then asked the witness the question whether or- not she had made that statement before the grand jury, and the prosecuting attorney objected. Appellant's counsel insisted that he had a right to go into the question of the witnesses' testimony before the grand jury, for the reason that the prosecuting attorney had refreshed the memory of the witness on that subject. The statement of the court in ruling on the objection was that the witness had admitted that she made the statement before the grand jury, and that that should be the end of the examination on that subject. Counsel then made this statement, apparently to the court, \\\"I will ask her that,\\\" and then asked the witness, \\\"Did you or not?\\\" The question appeared not to be clear to the witness, and the court interposed by propounding the question: \\\"The written statement read there, did you make that statement before the grand jury?\\\" Answer: \\\"Yes sir.\\\" She was further questioned by counsel for appellant as follows: \\\"How long did it take you to tell the grand jury about that conversation you and Jess had ? ' ' Answer: \\\" I don't know. ' '\\nThis ended the cross-examination, and there were no exceptions saved to any ruling- of the court.\\nIt is insisted here, for the first time, that the court erred in not permitting counsel to interrogate the witness concerning the testimony before the grand jury, but, as before stated, it does not appear from the record that the court denied appellant the privilege of asking any question on the subject that his counsel saw fit to propound. \\u2022\\nAgain, it is urged that the court erred in permitting the State to interrogate appellant, on cross-examination, concerning the finding of stolen property in Ms house. That inquiry was limited, of course, to the question of appellant's credibility as a witness, and the State undertook to go no further than Ms own answers on that subject. There was no error in this ruling, for the finding of property in appellant's house known to have been stolen might or might not affect his credibility, and the State had the right to place the circumstance before the jury by interrogating appellant Mmself concerning it.\\nIt is also insisted that the court erred in permitting the State to prove that appellant's house 'had bee\\u00ae searched by a deputy sheriff for whiskey. The record does not sustain appellant in this contention, and a further discussion is therefore unnecessary.\\nAnother contention is that the court erred in permitting the prosecuting attorney to interrogate appellant on cross-examination concerning a visit to appellant of certain white citizens of the town, and the admonition given to him by them to the effect that he must \\\"clean up\\\" his premises and quit selling whiskey. The record does not show that any direct; specific questions was propounded about selling whiskey, but, even if the questions propounded did embrace that* inquiry, it was invited by appellant's statement that he had sent out his bedclothing to be washed, pursuant to this admonition, and the prosecuting attorney, as we have already shown, had the right to show that the admonition by the citizens did not have reference literally to washing the premises and its contents, but to clean it up by stopping unlawful and immoral practices, including the unlawful sale of whiskey. There was no error committed by the court in permitting the prosecuting attorney to draw out from appellant just what he had been directed to do by the committee of white' people, inasmuch as appellant had already testified on that subject, and thus invited the inquiry concerning it.\\nFinally, it \\\"is insisted that the court erred in delivering its instructions to the jury commissioners in the presence of the trial jury in this case.\\nIt is shown by the record that, after the completion of the testimony in this case and the attorneys were to begin the arguments, the court suspended proceedings in this case until it could appoint'and charge the jury corqmissioners who were to select the jury for the next term of court. This was done over objection of appellant, and the record shows that he requested that the jury retire during the court's instructions to the commissioners. This request was denied, and the court proceeded to instruct the jury commissioners concerning their duties, among other things admonishing them as to their duty to select good men who would enforce the law. The record recites that the court, in its instructions to the commissioners, in the presence of the trial jury in this case, directed their attention to the increase in various crimes and \\\"instructed them that so long as people do not enforce the law the courts could not expect to check the crime wave that is now sweeping the country.\\\"\\nIf does not appear that the court, in its charge to the jury commissioners, made any reference, either directly or indirectly, concerning the trial of this case or the merits of the case. There was nothing said or done by the court which could reasonably be construed by the members of the trial jury as having reference to this case. It was a matter of discretion with the trial court as to when he should suspend other proceedings to appoint and instruct the jury commissioners, and, unless it be shown that the court said or did something that was calculated to prejudice-appellant's right before the trial jury, there is nothing which calls for a reversal of the judgment.\\nWe are of the opinion that the evidence is sufficient in this case to sustain the verdict, and that there is no prejudicial error in the record. The judgment is therefore affirmed.\"}"
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+"{\"id\": \"1360503\", \"name\": \"Graves v. State\", \"name_abbreviation\": \"Graves v. State\", \"decision_date\": \"1922-09-25\", \"docket_number\": \"\", \"first_page\": \"30\", \"last_page\": \"35\", \"citations\": \"155 Ark. 30\", \"volume\": \"155\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T23:57:35.350578+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Graves v. State.\", \"head_matter\": \"Graves v. State.\\nOpinion delivered September 25, 1922.\\n1. Criminal law \\u2014 remark of court. \\u2014 A remark of the court that certain testimony was immaterial will not be considered on appeal where no objection was made nor exception saved at the time the remark was made.\\n2. Homicide \\u2014 burden of proof \\u2014 instruction\\u2014An instruction in a murder case, in the language of the statute, that, the killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused unless by the proof on the part of the prosecution it is sufficiently manifest that the offense committed only amounted to manslaughter or that the accused was justified or excused in committing the homicide, was not erroneous.\\n3. Criminal law \\u2014 failure to request instruction \\u2014 Where defendant requested no instruction submitting the issue of manslaughter in a prosecution for murder, he cannot complain of the court\\u2019s omission to give such an instruction.\\n4. Homicide \\u2014 instruction as' to plea of self-defense. \\u2014 An instruction that the \\u201cplea\\u201d of self-defense was founded on the principle of necessity, that it must have appeared to defendant, not only that the danger was imminent, but that it was so pressing and urgent that, to save himself from immediate death or great bodily harm, the killing of the deceased was necessary, held not open to the objection that the plea was interposed by defendant because it was necessary to do so.\\n5. Criminal law \\u2014 misleading instruction \\u2014 specific objection.\\u2014 Specific objection should be made to language in an instruction thought to be misleading.\\n6. Homicide \\u2014 evidence of defendant\\u2019s acts and statements.\\u2014 Acts and statements of defendant, not in the hearing and presence of- deceased and not directed toward or about him, were inadmissible.\\n7. Homicide \\u2014 evidence harmless \\u25a0 .when. \\u2014 Admission of evidence that, some time before killing deceased, defendant displayed a gun while intoxicated and made threatening statements was not prejudicial where the evidence showed similar statements and conduct on defendant\\u2019s part immediately before the killing.\\n8. Criminal law \\u2014 res gestae.. \\u2014 Evidence of threatening acts and conduct of defendant immediately before the killing was admissible as part of res gestae.\\nAppeal from Lincoln Circuit Court; W. B. Sorrels, Judge;\\naffirmed.\\nD. E. Waddell, A. J. Johnson, Rogers & Terral, Caldwell, Triplett \\u00e9 Ross, for appellant..\\nJ. S. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.\", \"word_count\": \"1699\", \"char_count\": \"10144\", \"text\": \"Humphreys, J.\\nAppellant was indicted in the Lincoln Circuit Court for murder in the first degree for killing Isaac Hartley. Upon trial of the charge he was convicted of murder in the second degree and adjudged to serve a term of twenty-one years in the State Penitentiary as punishment therefor. Prom the judgment of conviction an appeal has been duly prosecuted to this court. The killing occurred on the night of the 12th day of November, 1921, at Grady, in front of a drugstore conducted by Jim Taliaferro. Some hour or more before the killing, appellant, the constable of the township, who was drinking to some extent, appeared at the show tent of a carnival company in another part of the town and caused those present to scatter and run in every direction by displaying his gun and a handful of cartridges. He made the statement that he was the law and wanted to see whether he had enough cartridges to go around. The deceased was not present during this occurrence. He seems, however, to have been there either earlier or later, and to have been somewhat under the influence of liquor, claiming a bill of sale on a part of the show property. Subsequently both went to the drugstore near the scene of the killing. The deceased and several other parties were in the drugstore when appellant entered. When appellant entered, Taliaferro, observing that he was drinking, requested that every one go, and directed the boy at the soda fountain to put out the lights. When the boy got on the counter in an attempt to comply with Taliaferro's order, the appellant, with pistol in hand, ordered the boy not to turn out the lights. Appellant then took a position at the front door, asserted that he was the law or boss, and that no one could go out until he said so. The deceased attempted to go out but was prevented' by appellant. During the incident appellant was generous with oaths. Taliaferro finally prevailed upon appellant to put up his gun and allow all of them to go out. He then closed the store, but was engaged about twenty minutes in doing so on account of the lock being out of repair. At this juncture the testimony sharply conflicts. That offered by the State tends to show that while Taliaferro was locking the door appellant attempted, without cause, to shoot Leon Stanfield, one of the party, but was prevented from doing so by Taliaferro, who knocked the pistol down as it fired; that in the struggle which ensued between appellant and Stanfield, appellant again fired the pistol at Stanfield but missed him and hit the deceased, the ball entering the back of his neck and killing him instantly. The testimony offered by appellant tended to show that, after the drugstore had been closed and appellant was being taken home by Taliaferro, deceased -attacked him with an automobile pump, and appellant fired upon and killed deceased in self-defense.\\nIn the course of the trial appellant was permitted to prove an uncommunicated threat against him, made by deceased to Taliaferro about 11 o'clock a. m. on the day of the killing. On admitting the testimony, the court made the remark that he regarded it as immaterial. The record also reflects that the statements made and acts committed by appellant on the show ground, out of the presence and hearing of deceased, tending to show a general malevolent spirit and wicked disposition as well as deliberation, were introduced by the State over the objection and exception of appellant.\\nAppellant's first contention for reversal is, that the .court destroyed the effect of the uncommunicated threat by remarking that it was immaterial. No objection was made or exception saved at the time to the remark of the court. The objection cannot, therefore, be considered on appeal. Yazoo & M. V. Ry. Co. v. Solomon, 123 Ark. 66; Lisko v. Uhren, 130 Ark. 111.\\n' Appellant's next contention for a. reversal of the judgment is, that the court erred in giving instruction No. 25, which is as follows: .\\n\\\"The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless, by the proof on the part of the prosecution, it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide.\\\" The instruction follows the language of the statute and, in the form given, has been approved by this court. Wilson v. State, 126 Ark. 354, and cases therein cited to the same point.\\nAppellant's next contention for a reversal of the judgment is that the court erred in failing to define and submit the question to the jury of whether appellant was guilty of voluntary or involuntary manslaughter. Appellant did not request an instruction submitting the issue of manslaughter, and cannot now complain at the omission of the court to do so, Allison v. State, 74 Ark. 44; Price v. Greer, 89 Ark. 300; Bates v. Ford, 110 Ark. 567; Hayes v. State, 129 Ark. 324.\\nAppellant's next contention for reversal is that the court erred in giving instruction No. 13, which is as follows:\\n\\\"The court instructs you that the plea of self-defense is founded solely on the principle of necessity. Before this plea is available in this case, it must have appeared to the defendant not only that danger to him at the nands of the deceased was imminent, but that it was so pressing and urgent that, to save himself from immediate death or great bodily harm at his hands, the killing of the deceased was necessary, and not in a spirit of revenge.\\\" Appellant's assault on the instruction is to the word \\\"plea\\\" in the first part of the instruction. He argues that the word \\\"plea\\\" in the connection used would lead the jury to believe that the plea was interposed by appellant because it was necessary for him to do so'. It is apparent that the word \\\"plea\\\" was used in the sense of \\\"right.\\\" We do not think the jury should have been misled by this slight error in phraseology. If appellant thought so, he should have made a specific objection, calling the attention of the trial court to the defect. Rock Island Plow Co. v. Rankin Bros. & Winn, 89 Ark. 24; Williams Cooperage Co. v. Clark, 105 Ark. 157.\\nAppellant's last contention for reversal is that the court erred in admitting his acts and statements on the show-ground. These acts and statements being done and made out of the presence and hearing of the deceased, not being directed toward or about him, were dissassoeiated from the crime. The court should have excluded the testimony relating to them. If they stood alone in the case, the admission of them in evidence would have constituted reversible error. Deal v. State, 82 Ark. 58; Washington v. State, 83 Ark. 268. Competent testimony of the same character, however, was introduced in the case. Appellant's conduct and statements in the drugstore, immediately preceding the killing, were, in tenor and effect, the same as his statements and conduct on the showground. Appellant's statements and conduct in the drugstore were a part of the res gestae,- and for that reason were admissible in evidence. Additional evidence of the same nature as that properly introduced could not' have resulted in prejudice to appellant. It is true this-additional evidence might have tended to show deliberation, and would have been prejudicial to the rights of appellant had he been convicted of murder in the first degree. Deliberation not being an essential element in murder in the second degree, of which appellant was convicted, no prejudice could have resulted to him on this account.\\nNo error appearing, the judgment is affirmed.\"}"
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diff --git a/arkansas/1383815.json b/arkansas/1383815.json
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+"{\"id\": \"1383815\", \"name\": \"Snow v. Wood\", \"name_abbreviation\": \"Snow v. Wood\", \"decision_date\": \"1924-03-24\", \"docket_number\": \"\", \"first_page\": \"280\", \"last_page\": \"284\", \"citations\": \"163 Ark. 280\", \"volume\": \"163\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T18:12:36.056598+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Snow v. Wood.\", \"head_matter\": \"Snow v. Wood.\\nOpinion delivered March 24, 1924.\\n1. Account \\u2014 evidence.\\u2014Evidence held to establish that one furnishing supplies to another over a period of several years had given due credit for cotton received by him in payment.\\n2. Payment \\u2014 appropriation.\\u2014The debtor at the time of making a payment on account has the primary right to direct its application to particular items of the account, upon failure of which the creditor may make application, and, in the event both fail to make application, the law applies the payment to the oldest items of the account.\\n3. Payment \\u2014 application op payments. \\u2014 The rule that the law applies payments to the oldest items of an account will not be enforced when contrary to the intention of the parties.\\nAppeal from Lincoln Chancery Court; John M. Elliott, Chancellor;\\naffirmed.\\nSTATEMENT OP PACTS.\\nOn the 12th day of August, 1921, C. E. Wood sued Jim Snow in the circuit court to recover $3,782.86 alleged to he the balance due on a merchandise account owed him by Snow.\\nJim Snow filed an answer, in. which he denied owing C. E. Wood any amount whatever. He claimed that he had paid his merchandise account with Wood, and that the latter had failed to credit him with certain sums to which he was entitled.\\nOn motion of the defendant the cause was transferred to the chancery court. The defendant also filed a motion for the appointment of a master, which was granted. The master was directed to audit the account sued on, and, for that purpose, to examine the books of the plaintiff and to take such other testimony as was necessary to establish the correctness of the account.\\nC. E. Wood and Jim Snow both testified before the master. The m\\u00e1ster reported that, after allowing all proper credits, the defendant was indebted to the plaintiff in the sum of $2,965.39, and that this included a balance brought forward from the 1917 account.\\nThe defendant filed certain exceptions to the report of the master, which were heard by the court. This testimony will be stated in the opinion.\\nThe chancellor overruled the defendant\\u2019s exceptions to the master\\u2019s report, and found that Snow was indebted to Wood in the sum of $2,965.35. It was decreed that the plaintiff recover judgment of the defendant for that amount.\\nThe defendant has duly prosecuted an appeal to this court.\\nCrawford & Hooker, for appellant.\\nWhen an action is brought on an account, the account must be itemized and filed with the comulaint. 132 Ark. 386. The suit was barred by limitations. C. & M. Dig., \\u00a7 5950. Wher'e a merchant sells \\u2019a planter or farmer, the universal custom is that the account is due and payable at the end of the year in which the goods are furnished. The court will take judicial knowledge of such general customs. 12 Ark. 645: 4 Ark. 302; 1 Greenleaf on Ev\\u201e pp. 63, 64, \\u00a7 56; 130 Ark. 272; 134 Ark. 273; 141 Ark. 164. Where the statute of limitation is pleaded in an action on account, the burden is on the nlaintiff to show that his action is not barred. 69 Ark. 311; 64 Ai\\u2019k. 26: 27 Ark. 343; 53 Ark. 96; 43 Ark. 136. A demand for a balance due upon an account stated is not an open account. 135 Ala. 272, 33 So. 28. The 1917 account is not a part of a mutual open account current, and is not covered by C. & M. Dig., \\u00a7 6964. See the interpretation of this court in 27 Ark. 343. See also Angel, 138''; 17 Serg. B. 347; 12 Ind. 174: 5 Bos. N. Y. 226: 17 Cal. 344: 30 Cal. 126; 74 Ga. 555; 125 .Ga. 82; 32 Md. 86; 16 Mich. 211. Where an account is not a mutual and open account, the parties cannot make it so by agreement. 136 Mass. 30. The statute of limitation is as binding in equity as at law. 47 Ark. 301; 46 Ark. 25; 43 Ark. 469; 20 Ark. 293; 16 Ark. 129.\\nJohnson & Smith, for appellee.\\nWhere there is a running account between parties, the law will apply payments to the several items of the account in the order of their priority. 57 Ark. 597; 91 Ark. 466. Thus the 1917 and 1918 accounts were paid, and the accounts in suit are for 1919, 1920', and 1921.\", \"word_count\": \"1517\", \"char_count\": \"8340\", \"text\": \"Hart, J.,\\n(after stating the facts). C. E. Wood was a dealer in general merchandise, and furnished supplies to Jim Snow and his tenants for the years 1917, 1918, 1919, and 1920. The principal exception to the account of the plaintiff by the defendant is that the plaintiff failed to account to him for the price of twenty bales of cotton, which the defendant delivered to him in the fall of 1918. According to the testimony of the defendant, he delivered to the plaintiff forty bales of cotton, and the latter failed to account to him for twenty bales. The books of the plaintiff show a credit to the defendant, by cash, of $3,908.79, in December, 1918. The plaintiff states positively that he accounted to the defendant for all the cotton which the latter delivered to him for the year 1918. He states further that the item of $3,908.79, credit\\u00e9d as cash, represented cotton which the defendant had sold himself and had paid the proceeds to the plaintiff, on his account. The defendant denies that he sold this cotton and paid the proceeds to the plaintiff to be credited on his account. He admits, however, that he does not know where he got the $3,908.79 which he paid to the plaintiff. The result of the finding of the master and of the' chancellor is that this must have been the proceeds of the cotton which the defendant thinks he delivered to the plaintiff. It is not reasonable to suppose that a man farming only between three and four hundred acres of land would have this amount of money and not know where it came from.\\nThe chancellor found the issues in this respect in favor of the plaintiff, and it cannot he said that his finding is against the preponderance of the evidence.\\nThe next contention of the defendant is that the plaintiff failed to credit him'with two checks, one for $75 and the other for $50.\\nAccording to the testimony of the plaintiff, he simply cashed these two checks for the defendant, and they had nothing whatever to do with his account. The defendant denies this, and claims that his account should be credited by the amount of these checks. He admits, however, that he did trade some in cash with the plaintiff, and that \\\"these cash transactions were not included in his-account.\\nThe chancellor found in favor of the plaintiff in regard to these two items, and it cannot be said that his finding is against the weight of the evidence. The account of the defendant for the year 1918 starts with a charge of $1,590.63, which was a balance brought forward from the 1917 account.\\nIt is claimed by the defendant that each year's account is a separate transaction, and that the balance of the account for the year 1917 was due on the first day of January, 1918. The suit was not commenced until August 12, 1921. Hence it is contended that the balance due on the account for 1917 is barred by the three-years statute of limitations applicable to actions on accounts. We cannot agree with counsel for the defendant. The plaintiff was a dealer in general merchandise, and the defendant traded with him during the years 1917, 1918, 1919, and 1920. The balance due from each year's account was carried forward into the account for the next year. No demand was made by the defendant for the application of the payments made by him to any particular items of the account. - The rule relating to application of pavments is that the debtor, at the time of making payment, has the primary right to direct the application to any particular item of the account. If he fails to make such application, the creditor has the right to make it. Should the creditor fail to .make it, then the law makes it by applying the payment to the oldest items of the account that are due at the date of the payment. Briggs v. Steele, 91 Ark. 458. In this connection it may be also stated that the rule as to the application of payments to the earlier items of an account is not inflexible, and will not be enforced when contrary to the intention of the parties. Terry v. Klein, 133 Ark. 366.\\nWe do not think, however, that the defendant has shown that the credits were not intended to be applied to the earlier items of the account.\\nTherefore we do not think that his plea of the statute of limitations should be sustained. The result of our views is that the decree of the chancellor is correct, and should be affirmed. It is so ordered.\"}"
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diff --git a/arkansas/1389875.json b/arkansas/1389875.json
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+"{\"id\": \"1389875\", \"name\": \"Twin City Bank of North Little Rock v. J. S. McWilliams Auto Company\", \"name_abbreviation\": \"Twin City Bank v. J. S. McWilliams Auto Co.\", \"decision_date\": \"1931-01-12\", \"docket_number\": \"\", \"first_page\": \"1086\", \"last_page\": \"1091\", \"citations\": \"182 Ark. 1086\", \"volume\": \"182\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T01:02:58.174108+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Twin City Bank of North Little Rock v. J. S. McWilliams Auto Company.\", \"head_matter\": \"Twin City Bank of North Little Rock v. J. S. McWilliams Auto Company.\\nOpinion delivered January 12, 1931.\\nMahony. Yomm \\u25a0& Saye, for appellant.\\nPowell, Smead $ Knox, for appellee.\", \"word_count\": \"1874\", \"char_count\": \"10416\", \"text\": \"Butler, J.\\nIn an action in the court of the justice of the peace the Twin City Bank of North Little Bock caused a garnishment to be issued out of that court against the appellee auto company. The writ of garnishment was returned by the constable with his indorsement thereon showing service upon the garnishee, and on the return day, November 8,1929. judgment in the main case was rendered against the defendant, and, the garnishee having failed to appear or answer, judgment was also rendered against it. On the 24th day of March, 1930, a writ of execution was issued against the appellee auto company, whereupon it filed its hill in equity to avoid the judgment and to restrain the appellant from proceeding further thereon. A demurrer was interposed to the bill in equity on the ground that the complaint did not state facts sufficient to constitute a cause of action in equity against the defendant, and that the complaint showed upon its face that the complainant had an adequate remedy at law, and the court of equity was without jurisdiction to hear and determine the controversy. The demurrer was overruled, and, the appellant electing to stand thereon, a decree was entered for the complainant granting to it the relief prayed. From the order overruling the demurrer and the decree of the court, the case is before us on appeal.\\nThe case, as presented by the complaint, is well and briefly stated by the appellant, as follows: \\\"In the case at bar the appellee sought to, and did, enjoin the appellant from enforcing a judgment which had been rendered in favor of the appellant against the appellee in a justice of the peace court because the summons and writ of garnishment was served, so it alleges, upon one who was not an officer of the company or an agent designated by it upon whom service of process could be served, and because the appellee had no notice of the pendency of the action prior to the rendition of the judgment, or prior to the expiration of its time within which to appeal from the judgment of the justice of the peace to the circuit court.\\\" In addition to the allegations referred to by the appellee in the foregoing statement, the appellee set out the indorsement on the return made by the constable, which return stated that he had served the garnishee by delivering a true copy of said writ to the J. S. McWilliams Auto Company by their agent George Kid-well; and further alleged that it had a meritorious defense in that it was not indebted to the defendant in the action in the justice of peace court in any sum before or at the time of the issuance of the writ, nor did it have in its hands and possession any goods, moneys, chattels or effects belonging to the defendants or. either of them. Since a meritorious defense was alleged, the correctness of the holding and decree of the trial court depends upon whether the complainant had an adequate remedy at law. The doctrine is well settled by the weight of authority, which has the approval of this court, that injunctive relief may be granted against the enforcement of any judgment of a court of law, but that, in order to obtain the relief, it is necessary for the complainant to show that he has no adequate remedy at law. 32 C. J. 328 ; 34 C. J. 434 ; Wingfield v. McLure, 48 Ark. 510, 3 S. W. 439 ; Shaul v. Duprey, 48 Ark. 331, 3 S. W. 366 ; Fuller v. Townsly-Myrick D. G. Co., 58 Ark. 314, 24 S. W. 635 ; Knight v. Creswell, 82 Ark. 330, 101 S. W. 754, 118 Am. St. Rep. 74.\\nIt is first insisted by the appellant that the chancery court had no jurisdiction to issue the injunction because of the provisi\\u00f3n of \\u00a7 5778 of the Digest, providing that \\\"an injunction to stay proceedings on a judgment or final order of a court shall not be granted in an action brought by the party seeking the injunction in any other court than that in which the.judgment or order was rendered or made.\\\" We are asked to construe this section and to apply it in the instant case. We are of the opinion that it has no reference to judgments of a justice of the peace court, but only to those of superior courts, and therefore has no application in this case. The powers of the justice of the peace court are limited to such as are given by the statutes digested in chapter 104 of C. & M. Digest, embracing \\u00a7 6386-6570, inclusive. Section 6410 of that chapter is as follows: ' ' The parties to the action may be the same as in the circuit court, and all proceedings prescribed for that court, as far as the same are applicable and not herein changed, shall be pursued in justices' courts. But the powers of justices' courts shall be and are only such as are in this chapter enumerated. ' '\\nSection 5788 relied on by the appellant and cited supra was \\u00a7 309 of chapter 4 of the Civil Code, and it is clear from an examination of the entire chapter that the power to issue an injunction rested only in the superior courts, and the section under consideration refers only to such.\\nIt is next insisted that the complaint disclosed upon its face that the complainant has an adequate remedy at law. The legal remedies which might have been invoked in this case were three in number: first, by motion in the court of justice of the peace; second, by appeal to the circuit court; and, third, by writ of certiorari. The judgment of the justice in this case was by default, and the power of the justice over such is prescribed and limited by \\u00a7 6448 of the Digest, which provides that a judgment of dismissal for want of jurisdiction, or judgment by default, may be set aside by the justice at any time within ten days after being rendered. The right of appeal must have been exercised within thirty days after the judgment was rendered, so that the complaint sufficiently shows that both of these rights were not available and were not lost by any neglect of the appellee, since it did not know of the pendency of the garnishment proceeding or judgment against it until well beyond the time in which it might have availed itself of these legal remedies. The complaint sufficiently shows that an examination of the original papers in the case would have disclosed prima facie regular service, and therefore the judgment of the justice court was not void on its face as the circuit court will look only to the face of the record on certiorari and quash only where from such inspection it appears that the court rendering the judgment had no jurisdiction, and that its judgment was void. McCoy v. County Court of Jackson County, 21 Ark. 475 ; Dicus v. Bright, 23 Ark. 107 ; State ex rel. v. Wilson, 181 Ark. 683-692, 27 S. W. (2d) 106, and cases there cited. We conclude that the allegations of the complaint in the instant ease were sufficient to show that the compffiinant had no remedy at law, and that the chancery court was correct in entertaining jurisdiction of the ease and granting the relief prayed.\\nIt is contended by counsel that the decree of the court below can be supported only upon the authority of the case of Ryan v. Boyd, 33 Ark. 778, and that the doctrine of that case is in conflict with that announced in the following oases: Gates v. Bennett, 33 Ark. 489 ; Scanland v. Mixer, 34 Ark. 354 ; Levy v. Ferguson Lumber Co., 51 Ark. 317, 11 S. W. 284 ; Woolum v. Kelton, 52 Ark. 445, 13 S. W. 78 ; Knight v. Creswell, 82 Ark. 330, 101 S. W. 754, 118 Am. St. Rep. 74 ; Dale v. Bland, 93 Ark. 226, 124 S. W. 1026 ; Metcalf v. St. L. I. M. & S. R. Co., 101 Ark. 193, 141 S. W. 1167 ; Nelson v. Freeman, 136 Ark. 396, 206 S. W. 667 ; Betterton v. Anderson, 171 Ark. 76, 283 S. W. 364.\\nThe case of Ryan v. Boyd was one where the summons showed on its face personal service on the defendant and a judgment rendered against him on the 26th of September, 1873. The complaint filed in chancery to enjoin its collection alleged that the return was false, and that judgment had been rendered without any service, and it is to be inferred that the first notice the defendant had was on the issuance of an execution approximately four years after the judgment was rendered. It is therefore evident that all remedies by appeal had long since been lost, and, if proceedings had been brought to stay or quash the execution, such proceedings would have availed nothing, for, as declared by the court: ' ' The circuit court could have looked alone to the record presented to it which could only have been the certified copy of the judgment, etc., and, as this on its face showed a valid service and a valid judgment, it is evident that the circuit court would have summarily dismissed the petition at the hearing.\\\" So, whatever may have been the reasoning and argument of the learned special justice, the fact remains that in that case there was no remedy at law, and therefore the chancery court was warranted in entertaining jurisdiction and in overruling the demurrer interposed to the complaint.\\nThe appellant stresses the case of Knight v. Creswell, supra, in support of its contention. That case was a suit in chancery to enjoin the enforcement of the judgment of a justice of the peace, and the grounds set forth in the complaint upon which equitable relief against the judgment was sought was that it was rendered without notice. The statement of facts in that case is very meagre but, as is shown by the abstract of the appellant's brief, the contention made was that the court erred in granting the relief because there was no allegation or showing made by the appellee that his remedy at law was inadequate. The court, in sustaining the appellant's contention and reversing the case, said: \\\"Equity will not restrain the attempted enforcement o'f a void judgment where the remedy at law is complete. ' '\\nAs in the case just referred to, so in all the other cases cited, supra, where the jurisdiction of equity was denied, it is apparent that there was no adequate remedy at law. In these cases there are some statements which might appear to be in conflict with the rule first stated, but these expressions were used by the court by way of argument or illustration and in each, as we have already said, on the real point necessary for decision, the cases are harmonious.\\nIt \\\"follows that the decree of the trial court is correct and must be affirmed. It is so ordered.\"}"
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diff --git a/arkansas/1389911.json b/arkansas/1389911.json
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index 0000000000000000000000000000000000000000..a77a83b52032bc9ab1afdee3771bedfced4a8eb5
--- /dev/null
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+"{\"id\": \"1389911\", \"name\": \"Harris v. Pruett\", \"name_abbreviation\": \"Harris v. Pruett\", \"decision_date\": \"1930-10-27\", \"docket_number\": \"\", \"first_page\": \"554\", \"last_page\": \"556\", \"citations\": \"182 Ark. 554\", \"volume\": \"182\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T01:02:58.174108+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Harris v. Pruett.\", \"head_matter\": \"Harris v. Pruett.\\nOpinion delivered October 27, 1930.\\nG. E. Morris, for appellants.\\nG. V. Holloway, for appellees.\", \"word_count\": \"867\", \"char_count\": \"4908\", \"text\": \"McHaney, J.\\nIn November, 1926, the appellees entered into a three-cornered rental contract as follows: Hutto was to furnish the land and \\\"necessary hay to feed the Pruetts''stock during the making of the above mentioned crop. \\\" Pruetts were to pay Hutto, as rent for the land, one-fourth of all cotton and cotton seed, one-third of the com, and ten dollars per acre for the alfalfa land. Perry agreed \\\"to finance the said Pruetts to enable them to make the 1928 crop on said land. To furnish them corn and cotton seed sufficient to plant and make the crop, and sufficient mules to make the crop, and to take, care of them financially for the year of 1928.\\\" It was further agreed that Hutto should waive his landlord's lien in favor of Perry, until he had collected for all he had furnished the Pruetts in the making of said crop-during the year 1928. Pruetts executed and deliv ered to Perry a mortgage odl their mnles, tools, wagons, harness and plow gear to secure him for advances made. Perry advanced on open account $561.61, and sold the Pruetts twelve mules valued at $1,280, retaining title to them until they were paid for. In order to get further \\u2022financial assistance, the Pruetts, on February 1, 1928, gave a mortgage to the Bank of England on all their crops to be raised that year, and a second mortgage on the property already mortgaged to Perry, which secured five supply notes of $550 each, running from March until July, inclusive, which said notes were indorsed by Perry, and was in performance of his contract to furnish the Pruetts financial assistance. In addition to this, Hutto made advancements to the Pruetts in the sum of $1,290.80. Pruetts also obtained supplies from appellant Harris, in the sum of $446.30, and secured appellant, therefor, by a third mortgage on his mules, tools, etc., and a second mortgage on his crops, which were already incumbered with the landlord's lien for rents and supplies in favor of Hutto.\\nAppellant brought this action to subject the property covered by his mortgage to the satisfaction of his debt, claiming that Ms lien was superior to that of Perry and Hutto, and claiming that Perry and Hutto converted to their own use certain bales of cotton upon which appellant had a mortgage. He prayed for the appointment of a receiver to take charge of the property, and for a judgment against the Pruetts in the amount of Ms claim. A receiver was appointed, who took charge of the property of the Pruetts, converted it into cash, and filed his report with the court. Upon a trial of the case, the court found that the Pruetts were indebted to Perry in the sum of $1,280 for twelve mules, $561.61 for supplies advanced and $107.30 balance due to the Bank of England, which was paid by Perry and assigned to him by the bank, together with the lien of its mortgage, making a total of $1,948.91, wMch should be credited with the $1,115, the value of the mules returned to Perry, leaving a balance of $833.91, with interest; that the Pruetts were indebted to Hutto in the sum of $780 and to appellant Harris in the sum of $446.30; that Perry received nine bales of cotton from the Pruetts and their croppers and sold same for $781.46, out of which he paid Hutto $195.36, labor for picking $30.25, to the share-croppers their part, and retained himself $359.41; that the receiver sold $728.26 worth of cotton out o!f which Hutto is entitled to one-fourth as rent, or $182.06; that Perry is entitled to a first lien on the proceeds of the mules, tools, etc., sold by the receiver, by virtue of his mortgage, except one cow covered by appellant's mortgage; and that Perry is entitled to a first lien on the crop, by reason of the deed of trust given the Bank of England, and which had been assigned to him; that Hutto is entitled to a prior lien for his rents and supplies which amount to $780; and that subject to all prior liens appellant is entitled to a lien on the property for $446.30. A decree was entered in accordance with the court's findings.\\nThis appeal challenges the correctness of this decree. It is said that Perry should not have paid to the sharecroppers their share of the proceeds of the sale of cotton delivered to him by the Pruetts. The evidence is undisputed that he did do this without knowing that appellant had furnished any supplies and claimed any lien on their share of the crops grown. Under these circumstances we do not think appellant is entitled to a judgment against Perry for the amount paid to share-croppers. The whole matter is quite involved, and, after a careful consideration of all the evidence, we are of the opinion that the court worked out the equities of the parties correctly, and that its findings are not against the preponderance of the evidence.\\nWe find no error, and the decree is affirmed.\"}"
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diff --git a/arkansas/1390014.json b/arkansas/1390014.json
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+"{\"id\": \"1390014\", \"name\": \"Shaver v. Clark County Bank\", \"name_abbreviation\": \"Shaver v. Clark County Bank\", \"decision_date\": \"1930-09-22\", \"docket_number\": \"\", \"first_page\": \"188\", \"last_page\": \"192\", \"citations\": \"182 Ark. 188\", \"volume\": \"182\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T01:02:58.174108+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Shaver v. Clark County Bank.\", \"head_matter\": \"Shaver v. Clark County Bank.\\nOpinion delivered September 22, 1930.\\nJ. S. Townsend and J. H. Lookadoo, for appellant.\\nMcMillcm & McMillan, for appellee.\", \"word_count\": \"1287\", \"char_count\": \"7280\", \"text\": \"Smith, J.\\nAppellee bank brought this suit to enforce the collection of a note to its order for $1,100 given in part payment of an automobile purchased from' it by appellant.\\nAn answer was filed in which it was alleged that the automobile was sold under a warranty that it was a new car, and had not been driven more than 250 miles, whereas it was an old car and had been driven so long that its machinery was hadly worn, and that on this account the car was not worth more than $300. It was alleged that the consideration for the car had failed in part, and, as $550 had been paid on the purchase price of the car, judgment was prayed for the recovery of the $250 paid in excess of its value.\\nThe writing sued on was not merely a note; it was a contract of sale which recited the conditions of the sale, but contained no warranty of any kind. Appellant testified that the cashier of the bank, who negotiated the sale of the car, represented to him that the car was practically new, and that he regarded this representation as a warranty, and relied upon it as such, but he later discovered that the car was old, and had been in a wreck, which had necessitated very extensive repairs, and frequent subsequent repairs were required to keep the car in running order, on account of its worn condition.\\nThe testimony of appellant, and that of the mechanic who had frequently repaired the car, was objected to upon the ground that the contract of sale was complete, and contained no warranty, and that it was not permissible to engraft a warranty upon a contract of sale which contained none.\\nAfter the conclusion of all the testimony, the record recites that: \\\"Thereupon the court stated to the attorneys that defendant's answer would be treated and considered as amended so as to allege false representations to defendant by plaintiff as to the condition of the automobile in controversy; also to raise the issue of the failure of consideration for the execution of the note sued on.\\\" .\\nAfter making this order, the court directed the jury to return a verdict for the balance due on the note or contract of sale, and from the judgment rendered upon this verdict is this appeal.\\nIt was said in the case of Lower v. Hickman, 80 Ark. 506, 97 S. W. 681, that: \\\"A warranty is so clearly a part of a sale that where the sale is evidenced by a written instrument, it is incompetent to engraft upon it a warranty proved by parol. The character of the written instrument is not important, so long as it purports to be a complete transaction of itself, and not a mere incomplete memorandum or receipt for money or part of a transaction where there are other parts of it other than warranties. ' '\\n' That case has since been frequently followed and approved, and we have no intention of impairing its authority. But, while a parol contract may not be en-grafted upon a complete written contract of sale containing no warranty, it is permissible to show that the ex\\u00e9cution of such a contract was procured by false representations, upon which the purchaser had the right to rely, and did rely, in making the contract; and if these false representations induced the purchaser to promise to pay a sum in excess of the value of the article sold, he may recoup the difference in value arising out of the false representations.\\nThe instant case is sufficiently similar to that of Hayes v. Gammon, 168 Ark. 1116, 272 S. W. 644, to be controlled by it. In that case the contract of sale was evidenced by a writing which not only did not contain a warranty, but, on the contrary, contained the express recital that \\\"the property is transferred in its present condition, and no warranties,\\\" yet, we upheld the action of the trial court in that case in admitting testimony showing that the execution of the contract had been procured through false representation as to the age of the car there sold, which had induced its' execution, and affirmed the judgment which had assessed damages on that account.\\nAppellee insists that the action of the trial court should be affirmed upon the authority of the case of Federal Truck & Motors Co. v. Tompkins, 149 Ark. 664, 231 S.W. 553 ; The opinion in that case recites that the pur chaser defended upon the ground that he had been deceived and induced to buy a second-hand truck by false representations in regard to. its ag'e and condition; but the opinion also recites that the case was not tried upon that issue in the court below. The defendant there sought to defeat a recovery against him by relying upon a contract having the incidents of-a sale with a warranty, but to sustain that defense he was required to engraft a warranty by parol upon a complete written contract which contained no warranty, and upon the authority of Lower v. Hickman, supra, it was held that this could not be done.\\nThe trial court was correct therefore in holding that a recovery in the instant case could not be defeated on the ground that there had been a breach of warranty. Appellant could not prove a warranty, because his. written contract of sale did not contain a warranty, and he could not engraft one upon it by parol testimony; but,- when the trial court ordered that the \\\"answer would be treated and considered as amended so as to allege false representations,\\\" a different case was presented. The rule of evidence which excludes parol testimony engrafting a warranty upon a valid -and complete written contract of sale containing none does not operate to also exclude testimony tending to show that the execution of such a contract was induced by false representations.\\nAppellee says that no additional testimony, was offered after this ruling of the court was made, and that there was therefore no error in directing a verdict in its favor. But, while appellant was unsuccessful in proving a contract containing a warranty, this was true pnly because the rules of evidence excluded testimony offered for that purpose, and while the testimony could not, for this reason, raise the issue of a breach of warranty, we think it was sufficient to- raise the issue for the jury as to whether the execution of the contract had been procured by false representations. If so, appellant had the right to recoup such damages as arose out of the false representations, and this issue should have been submitted to the jury after it had been ordered that the pleadings be treated as amended to raise the issue.\\nThe record before us presents no question as to whether the court was required, under the circumstances stated, to permit this amendment of the pleadings at the time the amendment was made; nor does the record present the question as to the conditions which might have been imposed as to costs or a continuance, had that been asked.\\nThe amendment of the pleadings was made, and there was testimony tending to show that the execution of the contract was procured by false representations as to the age and condition of the car, and this issue should have been submitted to the jury, and for the error in not doing so the judgment must be reversed, and it is so ordered, and the cause will be remanded for a new trial.\"}"
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+"{\"id\": \"1397075\", \"name\": \"Wright v. Lake\", \"name_abbreviation\": \"Wright v. Lake\", \"decision_date\": \"1929-02-18\", \"docket_number\": \"\", \"first_page\": \"1184\", \"last_page\": \"1189\", \"citations\": \"178 Ark. 1184\", \"volume\": \"178\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T18:32:17.738717+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Wright v. Lake.\", \"head_matter\": \"Wright v. Lake.\\nOpinion delivered February 18, 1929.\\nM. A. Matloch and J. B. Wilson, for appellant.\\nMahony, Yocum & Saye, for appellee.\", \"word_count\": \"1076\", \"char_count\": \"6038\", \"text\": \"Hart, C. J.,\\n(after stating the facts). The court \\u2022sustained a demurrer to the complaint in each case, and rendered judgment accordingly. The allegations of the complaint are the same, except as to the amounts due, and the demurrer confesses them to be true. 'Contrary to the common-law rule, under our Code every possible intendment and presumption is to be made in favor of a pleading, and a complaint will not be set aside on demurrer unless it be so fatally defective that, taking all the facts to be admitted, the court can say that they furnish no cause of action whatever. Sharp v. Drainage District No. 7, 164 Ark. 306, 261 S. W. 923, and Penix v. Shaddox, 169 Ark. 132, 273 S. W. 364.\\nCounsel for the defendant first seek to uphold the judgment of the circuit court on the ground that the cause of action is barred by the statute of limitations. We do not agree with counsel in this contention. According to the allegations of the complaint in each case, the defendant concealed from the plaintiff the withholding of certain part of the earnings of the partnership for the three years set out in the complaint. It is alleged that the plaintiff had no voice in the management of the business, and did not actively assist in carrying it on. On the contrary, it is alleged that the defendant Lake was the actual manager of the business, and fraudulently concealed from the plaintiff that he had failed to pay him a part of his earnings for the three years specified in the complaint and that he had converted same to his own use. It is further alleged that notice of the fraud was not acquired by the plaintiff until October 1, 1926. The original complaint was filed on the 8th day of April, 1927, and summons was served on the defendant on the 9th day of April, 1927. The amendment to the complaint was filed on May 26, 1928. Therefore the cause of action is not barred by the statute- of limitations. It is well settled in this 'State that, where there has been a fraudulent concealment of the cause of action, the statute of limitations does not begin to run until the fraud is discovered. Conditt v. Holden, 92 Ark. 618, 123 S. W. 765; Dilley v. Simmons National Bank, 108 Ark. 342, 158 S. W. 141; Meier v. Hart, 143 Ark. 539, 220 S. W. 819; Greer v. Craig, 165 Ark. 209, 263 S. W. 400; and Valley Planting Co. v. Currie, 173 Ark. 862, 293 S. W. 746.\\nCounsel for the defendant also seek to uphold the judgment of the circuit court in sustaining the demurrer to the complaint under the well-settled rule that, in a suit for accounting* and settlement of partnership affairs, the jurisdiction of equity is practically exclusive. Short v. Thompson, 170 Ark. 931, 282 S. W. 14; Tankersley v. Patterson, 176 Ark. 1013, 5 S. W. (2d) 309. The reason is that equity has almost exclusive jurisdiction in suits between partners where an accounting is necessary of some equitable relief required, such as opening up a settlement for the purpose of adjusting the accounts between the partners.\\nThere are certain exceptions, however, to the general rule. In the instant case the partnership had been dissolved, and the plaintiff in each case had sold out his interest to the defendant Lake. The wrong complained of does not involve a readjustment of the partnership business or accounts. The contract of dissolution stands, and the partnership relation no longer exists. The ground of action is in no way connected with the state of the partnership business, except that the defendant is alleged to have withheld from the plaintiff a part of the profits for three different years and to have converted the same to his own use. A certain specified and definite amount is alleged to have been withheld by the defendant for three different years, and to have been fraudulently converted to his own use. The alleged fraud and deceit is not asked to be a ground for setting aside the settlement between the partners or for reforming the accounts. The rig'ht of the action in this case is the alleged tort of Lake in fraudulently withholding from the plaintiff in each case a certain part of the profits of the partnership for three different years, and converting the same to his own use. The former partnership between the parties is in no way concerned, and there is nothing in the former partnership relation which prevents the maintenance of this action for the alleged deceit. Crockett v. Burleson 60 W. Va. 252, 54 S. E. 341, 6 L. R. A. (N. S.) 263; Russell v. Grimes, 46 Mo. 410; French v. Mulholland, 218 Mich. 248, 187 N. W. 254, 21 A. L. R. 1, and case-note at 97; and Farnsworth v. Whitney, 74 Me. 370, where fraud was alleged in the settlement lof partnership affairs, which case held that the defrauded partner could bring a.n action on the case for deceit.\\nThis principle was recognized and approved hy this court in Hamilton v. McGill, 152 Ark. 587, 239 S. W. 721, and Phillips v. Mantle, 136 Ark. 338, 206 S. W. 660. The reason is that no reopening or readjustment of the partnership accounts is necessary in such a case, and the plaintiff, having affirmed the dissolution of the partnership except as to the fraud alleged to have been practiced upon him, has a remedy at law for the alleged fraud and deceit.\\nIt follows that the court erred in sustaining the demurrer to the complaint in each case, and for that error the judgment must be reversed, and the cause remanded for- further proceedings. In this connection it may be stated that a defendant sued at law must make all the defenses he has, both legal and equitable; if any of them are exclusively cognizable in equity, he is entitled to a transfer to equity. Dunbar v. Bourland, 88 Ark. 153, 114 S. W. 467; and Automatic Weighing Co. v. Carter, 95 Ark. 118, 128 S. W. 557.\\nIt follows that the judgments will be reversed, and the causes will be remanded for further proceedings according to law and not inconsistent with this opinion.\"}"
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diff --git a/arkansas/1397111.json b/arkansas/1397111.json
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+"{\"id\": \"1397111\", \"name\": \"H. G. Pugh & Co. v. Ahrens\", \"name_abbreviation\": \"H. G. Pugh & Co. v. Ahrens\", \"decision_date\": \"1928-11-05\", \"docket_number\": \"\", \"first_page\": \"230\", \"last_page\": \"234\", \"citations\": \"178 Ark. 230\", \"volume\": \"178\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T18:32:17.738717+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"H. G. Pugh & Co. v. Ahrens.\", \"head_matter\": \"H. G. Pugh & Co. v. Ahrens.\\nOpinion delivered November 5, 1928.\\nWalter M. Purvis, for appellant.\\nFred A. Isgrig and Philip McNemer, for appellee.\", \"word_count\": \"1559\", \"char_count\": \"8817\", \"text\": \"Smith, J.\\nAppellee sued the appellant, a corporation, of which H. Gr. Pugh' is president, for the premiums due on two policies of insurance on the life of its president.\\nIn support of his cause of action appellee testified that he wrote two policies of insurance on the life of EL Gr. Pugh, payable to the company of which Pugh was president, for $5,000 each, with the understanding that appellee would pay the insurance company the premiums and would accept from the appellant goods, wares and merchandise in which- appellant dealt, in payment for the premuims, and that, pursuant to this arrangement, the policies were issued and delivered to appellant and retained by it for nine months, when appellant returned the policies to the insurance company and caused them to he canceled; that, upon issuance of the policies, the premiums therefor were charged to appellee, and he became responsible therefor to the company, and that ho later made a settlement of this and all other accounts due by him to the company by executing to it a note for the net balance due by him, the same to be repaid out of annual renewals in which he had acquired an interest through his agency as district agent of the company issuing the policies.\\nBut, as the trial court directed a verdict in appellee's favor, we must give to the testimony offered in appellant's behalf its highest probative value, and must assume that the jury would have accepted that testimony as true. As thus viewed, we summarize the testimony offered in appellant's behalf as stated in its brief. Mr. Pugh testified that he gave appellee an application for a policy which was to be issued on his life in favor of the appellant company. The premiums thereon were to be paid for in office equipment in which appellant dealt. Two policies, each for $6,000, were written upon the same terms, and of these Mr. Pugh testified, \\\"We decided to take one of the policies when the policy arrived, the other one having been written for our approval. ' '\\nAs to the second policy, he testified: \\\"The second policy was held in abeyance. 11; was on my desk for a good while. There was \\\"nothing done. We received no premium notice, had no dealings from the company, and we were looking for payment to be made on this trade. There was no transaction in connection with the trade and no payments made of merchandise furnished. ' '\\nHe further testified that, about the first of June (after -the issuance and delivery of the policy in February), witness wanted to know the status of the policies, and wrote the company, and received a reply signed by C. W. Nugent, as general counsel for the company, in which a detailed report was promised to be made at a later date, but that appellee came in and assured him that the policy was all right and \\\"the deal would be all right, and we then \\u2014 I believe it was at that time\\u2014 we decided to take the two.\\\"\\nThe witness further testified that the company did not comply with his request to advise him as to the status of the policies. \\\"They delayed, and gave excuses for not replying the entire year up to within a few days of the time of the due date of the second year.\\\" Witness returned the policies to the company on October 26, and received a letter from the company advising that they had been canceled.\\nOn August 1 witness received from the company the following letter:\\n\\\"Pear Mr. Pugh: On account of the fact that Mr. J. D. Ahrens of Little Rock has severed his connection with.the company, any matters pertaining to your policy No. 142710, either premium payments or otherwise, should be taken direct with the home office.\\n\\\"Hoping that we many continue to serve you from the home office in an efficient manner, I beg to remain,\\n\\\"Very truly yours,\\n\\\"W. J. Barr,\\n\\\"Manager renewal department.\\\"\\nThe credit man of the appellant company testified that appellee did not order .supplies in payment of the premiums, but he also testified, \\\"I had a suspicion that the insurance had not been settled for, and I didn't care to let the furniture go out, because I would have to look to Mr. Ahrens personally for payment.\\\" While appellee was testifying as a witness in his own behalf, he stated that the premiums on the two policies had been paid, and that they were paid by being charged to witness' account with the insurance company, and that the statements received by him of his account from the company showed this to be a fact. Appellant objected to this testimony, and asked the court to withdraw the submission of the case, to permit it to take testimony to show that the insurance company had never treated the premiums as being paid. The court overruled the. motion to withdraw the submission upon the ground that this was lan issue raised by-the pleadings which appellant should have been prepared to meet.\\nThe original complaint was filed March 2, 1926, and an amended complaint was filed March 31,1926, in which the appellee specifically alleged that Ms cause of action was based upon the failure of appellants to \\u2022 pay the premium on the two policies, and these allegations were made\\\" more specific in response to a motion to that effect, which response was filed January '22, 1927.\\nAppellant filed an answer and cross-complaint on May 20, 1927, in which it was alleged, in effect, that the policies were at all times void for the reason that appellant had never accepted them. In its cross-complaint appellant prayed judgment for the sum of $70.60 due it by appellee on op.en account. The trial from which this appeal comes was had February 14, 1928.\\nIn support of the motion for a withdrawal of the submission and a postponement of the trial a letter was exhibited, dated May 26, 1926, written to appellant's counsel land signed by Frank S. Anderson, written on the stationery of the general counsel of the insurance company, in which it was stated that the premiums had never been paid, and the opinion was expressed that the appellee had no right to maintain this suit.\\nThe court properly treated this letter as hearsay, and did not abuse its discretion in refusing to permit the submission to be withdrawn to permit appellant to take depositions. As we have said, the letter was dated May 26, 1926, which was more than a year before the trial, land related to the point in issue, which was whether appellee was entitled to receive these premiums.\\nPugh testified that he returned the policies in October'because he was uncertain whether they were in force, and one of the reasons for his uncertainty was that he had received no premium notice from the company, nor did he receive a binding receipt. There was, how ever, no reason to expect a notice in regard to the premiums if appellee had paid them, as he at all times insisted he had done, and there was no necessity for a \\\"'binding receipt,\\\" when the policies themselves had been delivered.\\nThe only letter from the insurance company properly identified was the one dated August 1, copied above, advising that appellee had severed his connection with the company, and, while it refers to only one of the policies, it refers to it as a. subsisting contract. But, even after the receipt of this letter, when appellant had already been in possession of the policies since February, appellant continued to hold them until the latter part of October, and, in so doing, appellant must be held as a matter of law to have accepted both policies. The law on this question was declared in People's Savings Bank v. Raines, 175 Ark. 1155, 2 S. W. (2d) 20, and cases there cited. In that case the insured had kept in his possession a policy of insurance delivered to him about the first of February until some time in April, when it was returned. But the court held that this constituted an unreasonable delay, and that the insured must he held as a matter of law to have accepted the policy for the reason, as was there said, \\\"it was the duty of the insured to examine the policy in a reasonable time after its delivery to him \\u2014 that is, in .such a time as he could have done so \\u2014 and to reject it if it was not what he had contracted for, and, if he failed to do this, he will be deemed to have accepted it, and cannot avoid liability for payment of the premium note. ' '\\nHere the policies were retained for a much longer period of time, and the court, in directing a verdict in flavor of appellee, permitted a recovery of such portion of the annual premium as covered the time during which the insurance had been in force, until the insured voluntarily canceled it, and from- that amount deducted the sum claimed by the appellant in its cross-complaint.\\nThe judgment of the court below appears to be correct, and it is therefore affirmed.\"}"
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diff --git a/arkansas/1403426.json b/arkansas/1403426.json
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index 0000000000000000000000000000000000000000..16403561afede5ff940f3725e90d0d1a7e6c460e
--- /dev/null
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+"{\"id\": \"1403426\", \"name\": \"Drainage District No. 7 of Poinsett County v. Exchange Trust Company\", \"name_abbreviation\": \"Drainage District No. 7 v. Exchange Trust Co.\", \"decision_date\": \"1928-01-09\", \"docket_number\": \"\", \"first_page\": \"934\", \"last_page\": \"944\", \"citations\": \"175 Ark. 934\", \"volume\": \"175\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T01:02:56.401453+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Drainage District No. 7 of Poinsett County v. Exchange Trust Company.\", \"head_matter\": \"Drainage District No. 7 of Poinsett County v. Exchange Trust Company.\\nOpinion delivered January 9, 1928.\\nChas. D. Frierson and Maim & McCulloch, for appellant.\\nCooley, Adams S Fuhr, D. F. Taylor and J. A. Tellier, amici curiae, on behalf of appellee.\", \"word_count\": \"2640\", \"char_count\": \"15288\", \"text\": \"Hart, C. J.,\\n(after stating the facts). The decree of the chancellor was based upon a holding that the facts in the case at bar bring it within the principles of law decided in Lee v. Osceola & Little River Road Improvement District No. 1 of Mississippi County, Arkansas, 268 U. S. 647, 45 S. Ct. 620, 69 L. ed. 1133, in which it was held that a State cannot impose special taxes on-lands acquired by private owners from the United States on account of benefits resulting from a road improvement made before the United States parted with its title.\\nIt is earnestly insisted by counsel for appellants that appellee is estopped by his conduct from questioning the validity of the annexation proceedings under which his property was placed in Drainage District No. 7 of Poinsett County and an assessment of benefits made against It. On the other hand it is -claimed that, under the principles laid down by the Supreme Court of the United States in the Lee case, the doctrine of estoppel can have. no application, because the land of appellee belonged to the United States at the time the petition for the annexation proceedings was signed by appellee and other landowners similarly situated.\\nWe do not think that the Lee case is decisive of this question. In that case the road improvement district was formed under the general statutes of the State providing for the establishment of road improvement districts, and the' lands were what are known as lake lands or sunk lands, .just as the lands involved in the present appeal are known. These lands, however, were included in the organization of the district, and benefits were assessed against them as land of riparian owners. Subsequently the land was adjudged to belong to the United States, and the title passed from the United States to private landowners. The improvement was completed at the time the title to the land was in the United States, and the United States did not grant the improvement district any authority to assess benefits against lands owned by the United States. Neither did the claimants of the land do anything that could be said to have been a participation in the formation of the district or the construction of the improvement. Hence there was no element of estoppel in that case.\\nIn Wight v. Davidson, 181 U. S. 371, 21 S. Ct. 616, 45 L. ed. 900, it was held that a constitutional right against unjust taxation is given for the protection - of private property, but that it may be waived by those affected who consent to such action to their property as would otherwise be invalid. This principle was recognized by the Supreme Court of the United States in the Lee case, but the effect of the opinion is that there was no element of estoppel under the facts of that case.\\nThe ease of Nevada National Bank v. Poso Irrigation District, 140 Cal. 344-347, 73 P. 1056, is cited in support of the holding* of the United States Supreme Court. In the California case it was said that, if the grantee of the United States must take the land burdened with the liability of an irrigation district made to include it, without the consent of the government or the purchaser, it attaches a condition to the disposal of the property by the government without its acceptance or consent, and .which must in such case interfere with its disposal.\\n\\\"We think the Lee case, then, expressly recognizes that the doctrine of estoppel may be invoked in a proper case like the one under consideration; but it could not be applied under tbe facts of that case, because there had been no assent to the imposition of the taxes by the United States or by its grantee.\\nIt is not claimed that the United States assented to the imposition of the special taxes in the present case, but it is claimed that, after appellee became the beneficial owner of the land, he was guilty of such acts and conduct as would estop him from attacking the validity of the annexation proceedings and the subsequent assessment of his lands thereunder. It is true that appellee and others filed a petition in 1918 for the annexation of their lands to the drainage district, but the change of plans was not made and the assessment of benefits was not made until June, 1919, at which time appellee and the other landowners who petitioned for the annexation had received final certificates of entry from the United States. When the certificate of entry was issued to appellee, he acquired the equitable title to the land, and the legal title alone remained in the United States. The land, in effect, thus no longer belonged to the United States but to the purchaser. Witherspoon v. Duncan, 21 Ark. 240, affirmed in 4 Wall. (U. S.) 210, 18 L. ed. 339. In affirming the case, Mr. Justice Davis, speaking for the court, said:\\n\\\"According to the well-known mode of proceeding at the land offices (established for the mutual convenience of buyer and seller), if the party is entitled by law to enter the land, the receiver gives him a certificate of entry reciting the facts, by means of which, in due time, he receives a patent. The contract of purchase is complete when the certificate of entry is executed and delivered, and thereafter the land ceases to be a part of the public domain. The government agrees to make proper conveyance as soon as it can, and in the meantime holds the naked legal fee in trust for the purchaser, who has the equitable title.\\\"\\nContinuing, the learned Justice said:\\n\\\"That Congress has the entire control of the public lands, can dispose of them for money, or donate them to individuals or classes of persons, cannot be questioned. If tbe law on the subject is complied with, and the entry conforms to it, it is difficult to see why the right to tax does not attach as well to the donation as to the cash entry. In either case, when the entry is made and certificate given, the particular land is segregated from the mass of public lands and becomes private property. In the one case the entry is complete when the money is paid; in the other when the required proofs are furnished. In neither can the patent be withheld if the original entry was lawful.\\n\\\"The power to tax exists as soon as the ownership is changed, and this is effected when the entry is made on the terms and in the modes allowed by law. If this were not so, those who, through the bounty of Congress, get a title to the soil, without money, would enjoy higher privileges and be placed on a better footing than the great body of persons who, by the invitation of the government, purchase lands with money. Such a discrimination could never have been contemplated by Congress.\\\"\\nTo the same effect see Wisconsin Railroad Co. v. Price County, 133 U. S. 496, 505, 10 S. Ct. 341, 33 L. ed. 687; and Bothwell v. Bingham County, 237 U. S. 642, 35 S. Ct. 702, 59 L. ed. 1157.\\nPursuant to the annexation petition, the land of appellee and the land of others, comprising at least 3,290 acres, were annexed to the original drainage district and brought under the operation of the act creating it. The landowners voluntarily asked for the privilege of becoming subject to all its provisions. In effect they asked for the assessment of benefits on their land and that they should become subject to the provisions of the act just as the land contained in the original district. The commissioners of the drainage district assented to their request, and the county court acted upon it and changed the formation of the district and the improvements to be made thereunder in a substantial way. In the very nature of things the added district imposed a very much, larger expense- upon the property owners of the whole district in order to afford protection to the lands of appellee and others who desired to be brought undeir the provisions of the act creating the drainage district and to participate in the benefits to be derived therefrom. It.was necessary to- issue a very much larger bonded indebtedness in order to accomplish this purpose. The property owners in the original district assumed the larger additional indebtedness, relying upon the acts and conduct of the petitioners. By petitioning for the annexation of their lands to the district, appellee and others declared that they would submit themselves to all the responsibilities and burdens imposed by the original act. They purposely caused the authorities to believe this as a matter of fact. Belying upon their acts and conduct, the commissioners largely increased the bond issue and expended money in the construction of the improvements in the amended district so as to reclaim and protect the lands of appellee and the other petitioners for the annexation from the floods. They permitted their lands to be assessed in June, 1919, after they had become the beneficial owners of them. In 1922 the commissioners, under the belief that the old assessments had become unequal, made a complete reassessment of the benefits against all the lands of the district, including those who had petitioned for the assessment. They proceeded with the work under the amended plans, and appellee and other landowners similarly situated enjoyed the benefits. To now permit them to deny the assurance given by their own acts and conduct, which was continued during the progress of the work, would work a fraud upon the drainage district and the landowners situated within its original boundaries, and this -cannot receive the sanction of law. The drainage district and the commissioners thereof had no reason to believe that the petitioners for the annexation would allege any invalidity in the law which they were asking to have extended for the protection of their land. The drainage district and all interested under the original act have been'misled by the affirmative acts and conduct of appellee and others petitioning for the annexation of their lands to the district.\\nHence we are of the opinion that appellee and those similarly situated are estopped from attacking the validity of the annexation proceedings' and the assessment of benefits against their land authorized for the construction of the drainage district and levees contemplated under the act. Having expressly consented to the taxation of their land after they had become the beneficial owners thereof, and the drainage district having acted thereon and made large expenditures in reliance upon their consent, such consent cannot be withdrawn.\\nThere is, however, no element of estoppel in the case against the St. Francis Levee District; for appellee, neither by his declaration nor conduct, did anything to induce the board of directors of the St. Francis Levee District to act in relation to the inclusion of his land within such district and to make an assessment of benefits thereon. If his land and the lands of others similarly situated are in the district and have become subject to an assessment of benefits for levee purposes, this results from the operation of law and not from any act or conduct of appellee and other landowners similarly situated.\\nIt is not claimed that there is an act of Congress allowing* the lands in controversy to be assessed for levee purposes as are the other lands in the district. The St. Francis Levee District was created by the Legislature of 1893, and the powers of the board of levee directors are contained in that act and the acts supplementary and amendatory thereto. Section one of the original act provides that that part of the area of the St. Francis basin within the State of Arkansas is the territory included in the district. Acts of 1893, p. 24. The act contemplates an annual assessment of all the lands in the district subject to special assessment for levee purposes. The record shows that the action of the Mississippi River, which is on the eastern boundary line of the district, continually causes changes to be made in the improvement district. The channel of the river is continually shift ing, and, in flood time, large portions of the levee are frequently destroyed and have to he replaced. The banks of the river itself are continually changing, and every overflow causes unexpected changes in the channel of the river, in the banks, and in the levee.\\nThe record shows, that the plans for constructing the levees are of necessity constantly being revised to meet the changed conditions, and that the levee has not been constructed up to the standard prescribed by the United States.' In short, the changed situations caused by the flood waters make necessary a revision of construction plans so that no part could be completed according to the standard prescribed by the United States before it again became necessary to revise the plans. Indeed, the court will take judicial notice of the length, width and depth of the Mississippi River and the encroachment of the river upon the lands adjacent to it in times of flood. The court will also take judicial notice of the vast area of territory of the United States which is drained into the Mississippi River, and- the result of the action of the river in flood times upon its banks and the levees along the banks. When all the matters are considered, it is perfectly evident that the levee in question has never become a complete improvement within the meaning of the Lee case. To so hold would place a too limited or restricted meaning upon the word \\\"complete.\\\" The expression \\\"completed improvement\\\" is a relative term, and its meaning depends upon the connection in which it is used when read in the light of the object to which it refers. It was intended by the framers of the St. Francis Levee a'et and the acts amendatory thereto that all lands within the boundaries of the district should fall under the provisions of the act as soon as they come to be privately owned. There has been no act of Congress allowing the lands of the United States upon which no final certificate has been issued to become subject to special assessments for levee taxes, as was the case in Pierce v. Drainage District No. 17, 155 Ark. 89, 244 S. W. 342. Hence as long as the lands now owned by appellee belonged to the United States they were not subject to special assessment f'or levee purposes under the doctrine of the Lee case. When the final certificate was issued, however, the naked legal title only remained in the United States and the equitable title was in the grantee. The lands fell, by operation of law, within the provisions of the act creating the St. Francis Levee District,- and were subject thereafter to the annual assessments of levee taxes just as were all the other privately owned lands in the district.\\nThe flood waters of the. Mississippi River come down with resistless force, and the consequent changes in its channel and the resultant encroachment on its levees make their construction and maintenance a continuing project, which, in the very nature of things, can nevetr be completed.\\nThe result of our views is that the decree of the chancery court will be reversed, and the cause will be remanded with directions to dismiss the complaint for want of equity. It is so ordered.\"}"
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+"{\"id\": \"1404523\", \"name\": \"CITY OF SILOAM SPRINGS v. BENTON COUNTY, Arkansas: W. Cary Anderson, Benton County Judge; Scott Douglass, Benton County Collector; Gloria Spring-Peterson, Benton County Treasurer\", \"name_abbreviation\": \"City of Siloam Springs v. Benton County\", \"decision_date\": \"2002-09-26\", \"docket_number\": \"01-869\", \"first_page\": \"152\", \"last_page\": \"160\", \"citations\": \"350 Ark. 152\", \"volume\": \"350\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T22:15:58.475819+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CITY OF SILOAM SPRINGS v. BENTON COUNTY, Arkansas: W. Cary Anderson, Benton County Judge; Scott Douglass, Benton County Collector; Gloria Spring-Peterson, Benton County Treasurer\", \"head_matter\": \"CITY OF SILOAM SPRINGS v. BENTON COUNTY, Arkansas: W. Cary Anderson, Benton County Judge; Scott Douglass, Benton County Collector; Gloria Spring-Peterson, Benton County Treasurer\\n01-869\\n85 S.W.3d 504\\nSupreme Court of Arkansas\\nOpinion delivered September 26, 2002\\nHarrington, Miller, Neihouse & Krug, P.A., for appellant.\\nRobin Green, for appellees.\", \"word_count\": \"1925\", \"char_count\": \"11854\", \"text\": \"Ray Thornton, Justice.\\nAppellees, Benton County and its officials (\\\"Benton County\\\"), petitioned for a declaratory judgment that Act 219 of 1963 (\\\"Act 219\\\") is an unconstitutional violation of Amendment 14's prohibition against the passage of any local or special act because it apportioned ninety percent of the road tax funds collected from within the corporate limits of Rogers, Bentonville, and Siloam Springs to those cities. The trial court granted appellees' motion for summary judgment, declaring Act 219 unconstitutional as to the cities of Siloam Springs and Bentonville. The trial court granted Rog ers's motion to dismiss, allowing the ninety percent apportionment to Rogers to remain in effect, pursuant to Act 174 of 1920.\\nAppellant, Siloam Springs, appeals the trial court's order, contending that the trial court erred in granting summary judgment declaring Act 219 unconstitutional without requiring Benton County to meet its burden of proof that the act was not rationally related to achieving a legitimate objective of state government. We conclude that the trial court erred in granting the motion for summary judgment declaring Act 219 unconstitutional.\\nEach county in the state is authorized to levy a three-mill tax on all taxable property in the county. Ark. Code Ann. \\u00a7 26-79-101 (Repl. 1997). Unless otherwise allowed by law, fifty percent of the three-mill tax collected on property within the corporate limits of a city is apportioned to the city, in accordance with Ark. Code Ann. \\u00a7 26U9-104 (Repl. 1997), which provides in pertinent part:\\n(a) Of the amount collected from the annual three mill road tax in any county in the state, the county courts shall apportion one-half (V2), except rvhere a greater amount is allowed by law, of the amount collected upon property within the corporate limits of any city or town for use in making and repairing the streets and bridges in the respective cities or towns.\\n(b) The collector of any county in the state shall pay into the treasury of the respective cities or towns the amount so apportioned by the county court, which amount shall be expended exclusively by the cities or towns for the purpose of making and repairing the streets and bridges within the corporate limits of the town or city.\\nId. (emphasis added).\\nIn 1920, the Arkansas General Assembly passed Act 174 to provide that the Benton County Court shall apportion ninety per cent of the road funds collected solely within the corporate limits of the City of Rogers. Act 174 provides in pertinent part:\\nBe It Enacted by the People of the State of Arkansas:\\nSection 1. That the County Court of Benton County, Arkansas, shall at the term held at which the Collector of Benton County, Arkansas, makes his annual settlement, apportion ninety per cent of the Road funds collected under Amendment Number Five (5) of the Constitution of the State of Arkansas, which are collected within the corporate limits of the City of Rogers in Benton County, Arkansas, to be used by the City Officials for the purpose of constructing and maintaining of the streets, alleys, bridges, and culverts of said city.\\nId.\\nIn 1926, the people adopted Amendment 14 that reads as follows:\\nThe General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.\\nArk. Const, amend. 14.\\nOn March 8, 1963, the legislature adopted Act 219, which provides:\\n\\\"Section 1. That the County Court of Benton County, Arkansas, shall at the term held at which the Collector of Benton County, Arkansas, makes his annual settlement, apportion ninety per cent (90%) of the road funds collected under Amendment Number Three (3) of the Constitution of the State of Arkansas, within the respective corporate limits of Rogers, Bentonville, and Siloam Springs in Benton County, Arkansas, to said cities respectively, to be used for the purpose of constructing and maintaining streets, alleys, bridges and culverts in such cities.\\\"\\nId.\\nFrom the year 1920, Rogers has been apportioned ninety percent of the tax collected from within its corporate limits, and from 1963 to the date this lawsuit was filed, the cities of Benton-ville and Siloam Springs have also been apportioned ninety percent of the tax collected from within their corporate limits.\\nFor their first point on appeal, appellants argue that the trial court erred when it granted the County's motion for summary judgment. Specifically, appellants contend that the County did not meet its burden of proof in establishing that Act 219 is unconstitutional within the meaning of Amendment 14 of the Arkansas Constitution.\\nThe appropriate standard of review when reviewing a grant of summary judgment has often been announced by this court:\\nWe have repeatedly held that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. George v. Jefferson Hosp. Ass'n, Inc., 337 Ark. 206, 987 S.W.2d 710 (1999); Pugh v. Griggs, 327 Ark. 577, 940 S.W.2d 445 (1997).\\nWorth v. City of Rogers, 341 Ark. 12, 20, 14 S.W.3d 471, 475 (2000). See also Ark. R. Civ. P. 56(c)(2).\\nAmendment 14 provides that the \\\"General Assembly shall not pass any local or special Act.\\\" In Board of Trustees v. City of Little Rock, 295 Ark. 585, 750 S.W.2d 950 (1988), we stated:\\nAmendment 14 prohibits the general assembly from passing local or special act. An act is special if by some inherent limitation it arbitrarily separates some person, place, or thing from those upon which, but for such separation, it would operate. A local act is one that applies to any division or subdivision of the state less than the whole.\\nWe further stated in Board of Trustees, supra:\\nStatutes are presumed not to be unconstitutional, and they will not be struck down unless they conflict with the Constitution \\\"clearly and unmistakably.\\\"\\nId. (citations omitted). We also stated that\\n[classification among geographical or political subdivisions is permitted if the general assembly could have had a rational basis for it, and the fact that the classification includes only one city does not necessarily mean that it is \\\"local\\\" in the constitutional sense.\\nId. (citations omitted).\\nIn determining a challenge to the constitutionality of a statute, we have adopted a well-established standard as to the burden required to declare a legislative act unconstitutional. We articulated this standard in Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983), where we stated:\\nUnder the rationality standard of review, we must presume the legislation is constitutional, i.e.[J that it is rationally related to achieving a legitimate governmental objective.\\n[This presumption] imposes upon the party against whom it is directed the burden of proving the unconstitutionality of the legislation, i.e.[,] that the act is not rationally related to achieving any legitimate objective of state government under any reasonably conceivable state of facts.\\nId.\\nApplying these rules to the present case, Benton County had the burden of proving that the act was not rationally related to a legitimate governmental purpose. Streight, supra; see also McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997). Notwithstanding our well-established standard requiring that the party challenging the constitutionality of a legislative act must meet this burden-of-proof requirement, Benton County sought a declaration that Act 219 is unconstitutional on its face because of perceived similarities between this case and City of Little Rock v. Campbell, 223 Ark. 746, 268 S.W.2d 386 (1954) and Street Improvement Districts Nos. 482 and 485 v. Hadfield, 184 Ark. 598, 43 S.W.2d 62 (1931). The trial court relied on these cases in granting summary judgment in favor of Benton County.\\nIt is clear that Benton County, as the party challenging the constitutionality of the act, had the burden of proving that Act 219 is unconstitutional under Streight, supra and McCutchen, supra. With its motion for summary judgment, it cited Ark. Code Ann. \\u00a7 26-79-104, Act 219, Amendment 14, and made an argument that case law, including Campbell, supra, and Hadfield, supra, established that it was entitled to judgment as a matter of law without requiring a showing that there was no rational basis for the act. Its contention was that Act 219 was a prima facie violation of Amendment 14 because it was special legislation similar to that prohibited by Campbell, supra, and Hadfield, supra. We note that no showing was made, by affidavit or otherwise, that these three cities, Rogers, Bentonville, and Siloam Springs, were treated any differently than other similar cities in Benton County or elsewhere in the state.\\nBenton County's citations to Campbell, supra, and Hadfield, supra do not operate as a substitute for meeting its burden of showing that the act is unconstitutional because it is not rationally related to achieving a legitimate governmental objective. We recently restated that requirement in McCutchen, supra, where we stated in pertinent part:\\nMcCutchen further asserts that if an act, on its face, applies to only one geographic subdivision of this state, it is per se unconstitutional as a violation of Amendment 14. To the contrary, this court has repeatedly held that merely because a statute ultimately affects less than all of the state's territory does not necessarily render it local or special legislation.\\nInstead, we have consistently held that an act of the General Assembly that applies to only a portion of this state is constitutional if the reason for limiting the act to one area is rationally related to the purposes of that act.\\nMcCutchen, supra (emphasis added) (citations omitted).\\nWhile there was argument between counsel whether a rational basis might or might not exist, neither party submitted affidavits or other evidence in support of their arguments. Benton County had the burden of showing that the act was not rationally related to achieving a legitimate objective of state government. McCutchen, supra. At oral argument, in response to a question whether there were cases to show when this burden shifted, Benton County indicated that it could not cite to any such case, and we know of none.\\nTherefore, we hold that, under Streight, supra and McCutchen, supra, Benton County did not meet its burden of proving that the act was not rationally related to achieving a legitimate governmental objective and that the trial court erred in granting summary judgment without requiring such proof.\\nFor their second point on appeal, appellants argue that the trial court erred in finding as a matter of law that Act 219 was unconstitutional without making a finding whether the Act is rationally related to a legitimate governmental'purpose. As previously discussed, we have held that an act of the General Assembly that applies to only a portion of this state is constitutional if the reason for limiting the act to one area is rationally related to the purposes of that act. McCutchen, supra. This point on appeal is complimentary to the point we have just considered, and is addressed by our earlier analysis.\\nWe conclude that the trial court erred in granting Benton County's motion for summary judgment,' and we reverse and remand.\\nThe trial court determined that Rogers could receive a ninety percent apportionment because Act 174 of 1920 preceded the adoption of Amendment 14 to the Arkansas Constitution.\"}"
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+"{\"id\": \"1411201\", \"name\": \"The Travelers Insurance Company v. Thompson\", \"name_abbreviation\": \"Travelers Insurance v. Thompson\", \"decision_date\": \"1936-12-14\", \"docket_number\": \"4-4460\", \"first_page\": \"332\", \"last_page\": \"340\", \"citations\": \"193 Ark. 332\", \"volume\": \"193\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T21:59:55.235280+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Travelers Insurance Company v. Thompson.\", \"head_matter\": \"The Travelers Insurance Company v. Thompson.\\n4-4460\\nOpinion delivered December 14, 1936.\\nArmstrong, McCadden, Allen, Braden & Goodman and G. B. Oliver, Jr., for appellant.\\nMalcolm W. Gannaway and William D. Hopson, for appellee.\", \"word_count\": \"2487\", \"char_count\": \"14055\", \"text\": \"Mehakfy, J.\\nOn November 1, 1929, tbe appellant issued to tbe appellee its accident policy, wbicb contained tbe following clauses:\\n\\\"Or, if sucb injuries independently and exclusively of all other causes shall wholly and continuously disable tbe insured from the date of tbe accident from engaging in any occupation or employment for wage or profit, the company will pay, so long as tbe insured lives and suffers sucb total disability, monthly indemnity at tbe rate hereinbefore specified.\\n\\\"Or, if sucb injuries independently and exclusively of all other causes, shall- wholly and continuously disable tbe insured from the date of accident from performing one or more important daily duties pertaining to Ms occupation, or for like continuous disability following total loss of time, the company will pay for the period of such disability, but not exceeding eight consecutive months, a monthly indemnity of one-half of the amount payable for total disability.\\\"\\nAppellee, who was forty-three years old, had been worldng for the Louisville & Nashville Railroad Company at Louisville, Kentucky, continuously from January, 1916, until December, 1929. During all that time he carried a policy with the appellant, but changed it to a straight accident policy in 1929. On March 3, 1935, appellee filed suit in the circuit court of Clay county alleging that he was injured on December 25, 1929, through accident, and as a result of the injury he was totally and permanently disabled from that date; that he gave notice to the company within twenty days, and complied with all the conditions precedent to recovery.\\nAppellant filed a motion to require the appellee to make his complaint more definite by stating whether the notice was forwarded to appellant's office in Hartford or to an authorized agent of appellant, and that he be required to state the manner in which the notice was given and to furnish the name of the persons to whom notice was given.\\nAppellees filed an amendment to his complaint alleging that within a few days after his injuries he wrote a letter to the authorized agent of appellant in Louisville, Kentucky, advising the agent, whose name he did not remember, of his injury, the manner in which it was sustained, and that he furnished him with sufficient particulars to identify him as the insured. On the date of trial appellee filed a further amendment alleging that in addition to the letter written to appellant's agent in Louisville, he also mailed a card within the twenty-day period to appellant's home office advising them of his injuries.\\nThe appellant then filed answer denying that appellee received any accidental injuries, and denying that he gave notice in twenty days either to the agent at Louisville or to the home office. Appellant alleged that the first notice it had of appellee's alleged injury was on August 27, 1934. It pleaded failure to give notice as a defense. It also alleged that appellee's disability was not continuous beginning on the date of the accident, as contracted in the policy.\\nThere was a jury trial, and a verdict and judgment for $2,400, plus $300 attorney's fees, and 12 per cent, penalty, amounting to $288. The verdict and judgment aggregated $2,988. The case is here on appeal.\\nThe appellee testified, after introducing the policy, that he was a brakeman on the railroad and earned from $190 to $300 per month; on the evening of December 25, 1929, he was scheduled to make a run to Ravena; he went on duty at 7:20 p. m. to get his train prepared for the run, and while he was fixing his lights preparing to go out, a yard engine cut the caboose off, kicked it off on an empty track; as the engine came back for the caboose, appellee was standing close to the end, inside, at the oil box. They hit the car hard, knocked appellee against the end of the caboose; he was knocked unconscious; there were several men in the caboose when appellee regained consciousness ; he was hurt, bruised all over, and sick at the stomach; called the-company doctor, but could not get him at that time; went back to Louisville on the morning of the 27th and went to see Dr. Baker; was suffering with his head and shoulder, mostly with the head; had severe headaches, was dizzy, and Doctor Baker gave him some medicine, but his headaches and dizziness got worse; he was off and on his work until 1931; did not do anything these trips, just filled the vacancy; they had a full crew law, and he just went over the railroad filling in the crew; sometimes when he was called he could not go out; none of his associates knew his condition was as bad as it was, except the conductor; if they had, he could not have worked; the conductor knew his condition, would let him come on the caboose when he knew he could not work, and would do his work for him; his trouble got worse; his right eye pained him a great deal, and he would get down and could not get up for four or five days; a little later he became paralyzed; he first noticed this some time in the fall, he did not have any taste on his tongne, and he did not notice the paralysis on his face and eye, and his eye was so that he could not close it; that caused him to know that something was wrong; he went to see several physicians, but none of them could help him; got a leave of absence and went to the hospital in Louisville; they were unable there to correct his paralysis, dizzy spells and headaches; his conductor advised him not to go out again; was afraid he would get killed. There never was a time after the accident when he was able to perform the substantial or material duties of a brakeman; he got a ninety-day leave of absence, trying to hold his seniority; notified the insurance company with the card that was in the policy, they had a card in the policy that he was supposed to fill out and mail to the home office, and he did that. The card was printed by the company and sent out to be used in eases of accidents, or if one got sick, to notify the company. He filled it out at home and his wife gave it to the postman at the door; he saw her give it to him.\\nErnest Fogelman, the conductor, testified about the accident and about the condition of the appellee, and stated that at times they allowed him to rest and all would do his work for him; he would attempt his work while suffering from intense pain from his condition; he could not have performed his duties satisfactorily without assistance; he should not have had to work at all; his inability to do his work began immediately after his injury, and began to get worse; he worked satisfactorily prior to the accident in December.\\nA number of other witnesses testified, including the physicians. The physicians introduced by appellee testified in substance that his permanent and total disability they thought was a result of the accident; and the physicians introduced by appellant testified that his condition was from disease. They made several tests, but there is no evidence tending to show that he had a disease which would cause his condition.\\nAppellant says there are two questions presented by the appeal: First. Did the appellee give notice to appel lant of Ms injury within twenty days thereafter, as required by the accident insurance policy here in controversy? Second. Did appellee, while the policy was in force, become wholly and continuously disabled from the date of accident from engaging in any occupation or employment for wage or profit?\\nIt is earnestly insisted by the appellant that the proof of notice is insufficient, and they call attention to numerous authorities first, Bluthenthal v. Atkinson, 93 Ark. 252, 124 S. W. 510. In that case the court said that the party had a choice of a number of agencies to make the communication or give the notice, and he chose the mail. The court also said: \\\"Where a letter has been properly mailed, the law raises a presumption that it was duly received by the person to whom it was addressed, but as was said by the Supreme Court of the United States in Rosenthal v. Walker, 111 U. S. 185, 'the presumption so arising is not a conclusive presumption of law, but a mere inference of fact founded on the probability that the officers of the government will do their duty.' As was declared by our court in Planters' Ins. Co. v. Green, 72 Ark. 305, 80 S. W. 151; 'the presumption, in the absence of evidence to the contrary, is that it was received, but this presumption may be rebutted.' \\\"\\nThe court in that case also approved the following instruction: \\\"If you find from a preponderance of the evidence that on the 25th day of June, 1908, the plaintiff was residing in Pine Bluff, Arkansas, and that on that day the defendant wrote a letter to plaintiff notifying her of her intention and desire to claim the benefit of his option and renew the lease for another term of five years, inclosed the same in an envelope, addressed it to plaintiff at the city of Pine Bluff, Arkansas, placed thereon the necessary postage stamps and mailed it to her in said city, then the law presumes that it was delivered to her in due course of time, and the burden is on the plaintiff to show by a preponderance of the evidence that she did not receive it.\\\"\\nAppellant next calls attention to the case of Runyan v. Community Fund of Little Rock, 182 Ark. 441, 31 S. W. (2d) 743. We think the facts in that case are so wholly different from the facts in the present case that it has no bearing whatever on this case.\\nAppellant calls attention to numerous other authorities, but it may be stated as the rule adopted by this court, that, in giving notice by mail, it is necessary to show that the letter was properly directed, stamped and mailed. This, however, does not have to be shown by direct testimony, but may be shown by circumstantial evidence.\\nThe rule is stated in C. J., Yol. 22, page 99, as follows: \\\"In order to support a presumption of receipt of a letter, there must be satisfactory proof that it was duly mailed, although such proof need not consist of direct and positive testimony to the ultimate fact of mailing. A letter deposited in a postoffice, a government street letter box, a mail box on a rural delivery route, or a mail chute shown to be connected with a government letter box, or delivered to an official letter carrier while on his official route, or to a United States mail agent while on duty on a mail train, is duly mailed. ' '\\nThe evidence in this case shows that the card mailed to the company was a printed card sent out with the policy for the purpose of being mailed to the company in case of accidents; that this card was delivered to the mail carrier in the presence of appellee.\\nThis court said in Southern Engine & Boiler Works v. Vaughan, 98 Ark. 388, 135 S. W. 913, Ann. Cas. 1912D, 1062: \\\"The rule is well settled that if a letter is properly mailed it is presumed that it reached the party to whom it was addressed, and was received by him in due course of mail. ' ' The court also said in this case: \\\"The word 'mailed,' when applied to a letter, means that it was property prepared for transmission in the due course of mail, and that it was placed in the custody of the officer charged with the duty of forwarding the mail. When, therefore, the witness testified that this letter had been mailed to the plaintiff, it was sufficient evidence that it had been property directed, stamped and delivered to the officials of the postal department for proper transmission through the mails; and from this the presumption arose that the plaintiff, to whom the same was addressed, received it. This presumption could be rebutted by testimony that it was not in fact received, but the positive denial by plaintiff that same was received would not be sufficient, as a matter of law, to nullify the presumption of its receipt. Such testimony simply left the question as to the receipt of the letter for the determination of the jury under all the testimony adduced at the trial.\\\"\\nWe think the above case settles the question as to notice in the instant case.\\nIt is next contended that the appellee, while the policy was in force, did not become wholly and continuously disabled from the date of the accident from engaging in any occupation or employment for wage or profit. The evidence shows that the appellee was seriously injured and that while he tried to work for some time afterwards, we think the undisputed proof shows that he was not able to perform his work.\\nTotal disability is generally regarded as a relative matter, which depends largely on the occupation and employment in which the party insured is engaged. Provisions in insurance policies for indemnity in case the insured is totally disabled from prosecuting his business, do not require that he should be absolutely helpless, but such disability is meant which renders him unable to perform all the substantial and material acts of his business, or the execution of them in the usual and customary way. \\u00c6tna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310; Missouri State Life Ins. Co. v. Snow, 185 Ark. 335, 47 S. W. (2d) 600; Mutual Benefit Health & Accident Ass'n v. Bird, 185 Ark. 445, 47 S. W. (2d) 812.\\nThere are numerous other cases decided by this court to the same effect. We think the evidence was sufficient for the jury to find that the appellee was totally\\\" disabled from the time of the accident. It is true, he tried to work thereafter, but he was unable to perform his duties, and this is shown by the undisputed evidence.\\nThere is evidence of physicians .to the effect that appellee's condition is not the result of the accident, but the result of disease. However, the extent of appellee's disability and the cause of it were questions of fact for the jury, and its verdict is conclusive here.\\nWe find no error, and the judgment of the circuit court is, therefore, affirmed.\"}"
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+"{\"id\": \"1435278\", \"name\": \"Missouri State Life Insurance Company v. Snow\", \"name_abbreviation\": \"Missouri State Life Insurance v. Snow\", \"decision_date\": \"1932-03-07\", \"docket_number\": \"\", \"first_page\": \"335\", \"last_page\": \"339\", \"citations\": \"185 Ark. 335\", \"volume\": \"185\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T19:19:27.797371+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Missouri State Life Insurance Company v. Snow.\", \"head_matter\": \"Missouri State Life Insurance Company v. Snow.\\nOpinion delivered March 7, 1932.\\nAllen May and Bose, Hemingway, Cantrell $ Lough-borough, for appellant.\\nJ. S. TJtley and Wm. T. Hammock, for appellee.\", \"word_count\": \"1348\", \"char_count\": \"7699\", \"text\": \"McHaney, J.\\nAppellee holds two life insurance policies issued by appellant for $1,000 each, with like \\\"total and permanent disability\\\" provisions for the payment of $10 per month per $1,000 of insurance for total and permanent disability as defined in the policies. This disability is defined as follows:\\n\\\"Total and permanent disability may be due either to bodily injuries or to disease, which must occur and originate while this policy is in full force after the first premium has been paid, and must be such as to prevent the insured then and at all times thereafter from engaging in any gainful occupation. Total disability as defined above, which exists and has existed continuously for not less than three months shall be presumed to be permanent. At any time after approval by the company of the aforesaid proof and from time to time, but not oftener than once a year after disability has continued for two full years from the date of approval, it may demand of the insured proof of the continuance of such disability and the right to examine the person of the insured. Upon failure to furnish such proof or if it appears that the insured has recovered so as to be able to engage in any gainful occupation, the company's obligations to pay further disability benefits shall cease and the insured shall be required to pay the premiums becoming due on this policy thereafter in accordance with the original terms hereof.\\\"\\nIn December, 1924, appellee became disabled by reason of ankylosis of the right hip. He filed a claim which was approved, and he was paid $20 per month to July 1, 1929, when payments were stopped because appellant concluded that he had recovered to such an extent that he was no longer totally and permanently disabled within the above quoted provision of the policies. This suit followed to recover the present value of such monthly payments over the period of his expectancy. A recovery was had, and this appeal comes from the judgment based thereon.\\nThe first assignment urged for a reversal is that the court erred in refusing to direct a verdict for appellant at its request. This challenges the sufficiency of the evidence to support the verdict. We think this assignment must be sustained, as we are of the opinion that the undisputed evidence shows that appellee is not totally and permanently disabled as this term is defined in these policies. There can be no question that he is partially disabled, that he has a stiff hip which seriously impairs its usefulness, that he cannot stand or walk as he once could, but it does not follow from this that his disability is covered by the policies. The total and permanent disability therein defined \\\"must be such as to prevent the insured then and at all times thereafter from engaging in any gainful occupation.\\\" That is the hazard insured against under this clause and against no other, except that certain injuries specified \\\"shall be considered total and permanent disability within the meaning of this provision,\\\" none of which were suffered by appellee.\\nBy his own testimony appellee is shown to be performing the material and substantial duties of a \\\"gainful occupation,\\\" and that his disability is not such as to prevent him from engaging therein and has not been since July 1,1929, unless it may be said that the business of operating a country store with an average stock of $2,000 and the business of leasing and operating a 400-acre plantation near England, Arkansas, is not a \\\"gainful occupation. ' ' Such an occupation has been regarded as \\\"gainful\\\" in the past, whatever might be said to the contrary in the last year or two: The proof shows that appellee does conduct the business of a country mer chant, with the assistance of his wife all the time or nearly all, and of his daughter a part of the time; that he drives his own automobile, purchases his goods in England and Little Rock, waits upon his customers and does all the work when his wife and daughter are out; that he is unable to do heavy lifting, but his goods are trucked to his store and delivered therein by the drivers; that in the year 1930 he farmed through tenants 80 acres of land and in 1931, 400 acres of land; that he furnishes his tenants and sharecroppers supplies, takes mortgages on their crops and other personal property, travels to Lonoke in his car to see the agent of his landlord and to record his mortgages and transact other business; and that in the farming end of his occupation he has no help from his wife, daughter or any one else. He attends to that himself. He says that he engaged in the farming business to help his store business, but that does not change the situation. It is also true that he cannot handle a plow, walk over the fields and see after his business as well as he could without the stiff hip, but he is able to drive along the turn-rows, direct the tenants as to how, when and what to do, and to give his farming business the same general care and management as do others. He was asked this .question: \\\"Q. Hid you take 400 acres this year thinking you could attend to it yourself and that you would make a profit on it?\\\" He answered: \\\"A. I thought I could. Certainly I did.\\\" The evidence further showed that the business of the store was such as to require help in its operation, and it appears certain that, with appellee away purchasing goods, or attending to his farming business, the store could not be kept open without some assistance in the capacity of clerk.\\nThis, in substance, is appellee's condition as testified to by himself, and we hold.that it shows conclusively that he was not totally and permanently disabled from \\\"engaging in any gainful occupation.\\\" It shows positively that he engaged in the farming business and attended to all the duties connected therewith without help, and that he engaged in the mercantile business and attended to all the substantial and material acts connected with that business. The rule in this State is. quoted from Kerr on Insurance, \\u00a7 385 and 386, in Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457, 29 L. R. A. (N. S.) 635, 21 Ann. Cas. 1029, as follows: \\\"Total disability does not mean absolute physical disability on the part of the insured to transact any land of business pertaining to his occupation. Total disability exists, although the insured is able to perform occasional acts, if he is unable to do any substantial portion of the work connected with his occupation. It is sufficient to prove that the injury wholly disabled him from the doing of all the substantial and material acts necessary to be done in the prosecution of his business, or that his injuries were of such a character and degree that common care and prudence required him to desist from his labor so long as was reasonably necessary to effect a speedy cure. ' '\\nThis statement of the law has been followed many times since, the latest cases being \\u00c6tna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335, and \\u00c6tna Life Ins. Co. v. Spencer, 182 Ark. 486, 32 S. W. (2d) 310. Of course, such a provision in a policy does not require that the insured shall be absolutely helpless or insane, but there must be such disability as renders him unable to perform all the substantial and material acts in the prosecution of a gainful occupation.\\nAs we have already seen appellee was not so disabled. There being no question of fact to be submitted to the jury, the request for a directed verdict should have been granted.\\nReversed and dismissed.\"}"
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+"{\"id\": \"1444105\", \"name\": \"Hardin, Commissioner of Revenues, v. Vestal\", \"name_abbreviation\": \"Hardin v. Vestal\", \"decision_date\": \"1942-06-15\", \"docket_number\": \"4-6798\", \"first_page\": \"492\", \"last_page\": \"501\", \"citations\": \"204 Ark. 492\", \"volume\": \"204\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T01:03:01.465436+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Justice Humphreys joins me in this dissent.\", \"parties\": \"Hardin, Commissioner of Revenues, v. Vestal.\", \"head_matter\": \"Hardin, Commissioner of Revenues, v. Vestal.\\n4-6798\\n162 S. W. 2d 923\\nOpinion delivered June 15, 1942.\\nLeffel Gentry and Elsijane Trimble, for appellant.\\nHouse, Moses <B Holmes and Eugene JR. Warren, for appellee.\", \"word_count\": \"3248\", \"char_count\": \"19086\", \"text\": \"McHaney, J.\\nAppellee brought this action against appellant, as a class suit, to enjoin appellant from collecting or attempting to collect a sales or gross receipts tax from him, or others similarly situated, based on the gross receipts or gross proceeds derived from the sale of raw products produced by them, either from the farm, orchard or garden, where such sale is made by them directly to the consumer or user from an established business located on their farms where said products are produced. The act under which the tax is proposed to be levied is No. 386 of 1941. His complaint, in addition to alleging that he is a citizen and resident of Pulaski county and is a florist and nurseryman, operating a floral farm and nursery in said county, also alleged that he is engaged in selling products derived from his farm, orchard and garden, that is, flowers, shrubs, fruit trees and plants from an established place of business located on his farm, where such products are grown; that said act \\\"is discriminatory, arbitrary and unreasonable in attempting to levy a tax against him as a florist and nurseryman for gross receipts or proceeds derived from the sale of said raw products made directly to consumer and user from said established place of business located on his farm and produced on said farm; that said act deprives plaintiff and others similarly situated of their privileges and immunities contrary to the constitution of the United States and the state of Arkansas, and the provisions therein made and provided.\\\" The equal protection clauses of both constitutions are also invoked.\\nAppellant demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The court overruled the demurrer. Appellant refused to plead further, but stood on his demurrer, and the court entered a decree enjoining appellant from attempting to collect the tax as prayed. This appeal followed.\\nThe particular section of said Act 386 of 1941 complained of is subsection (n) of \\u00a7 4, which provides: \\\"Gross receipts or gross proceeds derived from the sale of any cotton or seed cotton or lint cotton or baled cotton, whether compressed or not, or cotton seed in its original condition; gross receipts or gross proceeds derived from the sale of raw products from the farm, orchard, or garden, where such sale is made by the producer of such raw products directly to the consumer and user; gross receipts or gross proceeds derived from the sale of livestock, poultry, poultry products, and dairy products of producers owning not more than five cows; exemptions granted byr this subdivision shall not apply when such articles are sold, even though by the producer thereof, at or from an 'established business'; neither shall this exemption apply unless said articles are produced or grown within the state of Arkansas. Provided, however, nothing in this subsection shall be construed to mean that the gross receipts or gross proceeds received by the producer from the sale of the products mentioned herein shall be taxable when the producer sells at an 'established business' located on his farm commodities produced on the same farm. The provisions of this subsection are intended to exempt the sale by livestock producers of livestock sold at special livestock sales. The provisions of this subsection shall not be construed to exempt sales of dairy products by any other businesses. The provisions of this subsection shall not be construed to exempt sales by florists, nurserymen and chicken hatcheries.\\\"\\nIt was appellee's contention in the court below and is hero that the act, as interpreted by appellant, is unconstitutional because the classification made by the legisla ture in subsection (n) of \\u00a7 4 of said act is unreasonable, discriminatory and arbitrary. It is conceded that, \\\"If the classification is reasonable and is not arbitrary or capricious, then there is no unconstitutionality.\\\" Appellee's brief. The concession is well taken. The tax levied b}T the act is an excise or privilege tax. Wiseman v. Phillips, 191 Ark. 63, 84 S. W. 2d 91; Ark. Power & Light Co. v. Roth, 193 Ark. 1015, 104 S. W. 2d 207. It is difficult to perceive what right appellee has to complain of the tax levied by the act as he is not required to pay the tax in the first instance, because the third paragraph of \\u00a7 7 provides: \\\"The seller, or person furnishing such taxable service, shall collect the tax levied hereby from the purchaser.\\\" So, appellee is not taxed. As we said in the Wiseman case, \\\"He.is a tax collector.\\\" But assuming, for the purpose of this opinion, that he has such right, we cannot agree that the classification made by the act is unreasonable or arbitrary. Subsection (n) provides for exemption from the tax on gross receipts from sale of certain farm produce including cotton, cotton seed; raw products from farm, orchard or garden; livestock, poultry, poultry products and dairy products of producers owning not more than five cows. Also exempt from the tax are the gross receipts received by the producer from the sale of the above products \\\"when the producer sells at an 'established business' located on his farm commodities produced on the same farm.\\\" The concluding sentence of this paragraph is: \\\"The provisions of this subsection shall not be construed to exempt sales by florists, nurserymen and chicken hatcheries.\\\"\\nIt is true that the products exempted by the act are agricultural products and that agriculture, in its broadest sense, includes horticulture, and that horticulture includes floriculture and viticulture. The florist is engaged in floriculture, and, according to Webster, is \\\"a cultivator of, or dealer in, ornamental flowers or plants. ' ' Appellee is both a cultivator and a dealer in ornamental flowers and plants. He operates a florist shop in the city of Little Rock and he concedes lie is liable for the tax on gross receipts of sales made there. But, as to those he sells on his farm, where he grows the flowers and plants, he contends the classification is arbitrary because farm products as defined in the act are exempt. Appellee is also a nurseryman. That business is a branch of horticulture, says Webster, and is \\\"a place where trees, shrubs, vines, etc., are propagated for transplanting or for use as stalks for grafting; a plantation of young trees or other plants.\\\" Simply because the legislature saw proper to exempt certain farm produce and livestock, agricultural products, from the tax imposed, and specifically refused to exempt florists' and nursery products, is no reason to say the classification made is arbitrary, unreasonable and capricious. It is true that all grow from the soil, but the products grown by farmers are entirely separate and distinct from the products grown by florists and nurserymen. It is not contended by appellee that the act discriminates against him in favor of other florists and nurserymen, and it does not, because it applies to all in his class alike by requiring the tax to be paid.\\nIn Williams v. City of Bowling Green, 254 Ky. 11, 70 S. W. 2d 967, the Supreme Court of Kentucky said: \\\"Whether a particular classification offends or does not offend the equal protection clause of the Fourteenth Amendment has been the subject of numerous decisions by the United States Supreme Court. The principles established by those decisions are in brief as follows: The restriction imposed by the Fourteenth Amendment does not compel the adoption of an iron-clad rule of equal taxation, nor prevent a variety of differences in taxation, or discretion in the selection of subjects or the classification for properties, businesses, callings or occupations. The fact that a statute discriminates in favor of certain classes does not make it arbitrary, if the discrimination is founded upon a reasonable distinction, or if any state of facts reasonably can be conceived to sustain it.\\\" The above quoted statement is in substance the holding of the United States Supreme Court in State Board of Tax Commissioners of Indiana v. Jackson, 283 U. S. 527, 51 S. Ct. 540, 75 L. Ed. 1248, 73 A. L. R. 1464, 75 A. L. R. 1536, and it was there further held that the legislature may not only classify, but, for taxation purposes, it may subdivide classes into particular classes. It was there said, to quote headnote No. 7: \\\"An Indiana statute lays an annual license tax on stores, increasing progressively with the number of stores under the same general management., supervision or ownership \\u2014 such that, in the present case, the owner of a 'chain' of some 225 stores selling groceries, fresh vegetables and meats, was obliged to pay $5,443, whereas the owner of a single store only, though it involved a much greater investment and income, would pay but $3. Held not violative of the equal protection clause, in view of the distinctions and advantages which combine and are exerted in a single ownership and management of a series of like stores in different locations, as compared with mere cooperative associations of independent stores, or with department stores selling many kinds of goods under the same roof.\\\"\\nTherefore, even though the business of the florist and nurseryman are subdivisions of agriculture, it is not difficult to distinguish their business from that of the farmer. Farming \\u2014 the growing of grain, cotton, livestock, poultry and other produce \\u2014 is absolutely essential to the life of the nation, while the growing of flowers and plants and of fruit trees and shrubs is not. Nor do we mean to minimize the importance of the latter. We merely point out one distinction to show that the classification made by the legislature is not arbitrary or unreasonable, and especially is this true in view of the well settled rule that the law must be sustained, \\\"if any state of facts reasonably can be conceived to sustain it.\\\" Other distinctions might be pointed out, but we deem it unnecessary to do so.\\nWe think it unnecessary to cite and comment on the numerous cases cited by the parties, as to do so would greatly extend this opinion to no practical purpose.\\nAppellee makes the further argument that the act does not apply to him. He evidently thought it did when he brought this suit and we think it does. He alleges that he is a florist and a nurseryman, and the act specifically says his sales shall not be exempt from the tax.\\nThe decree will, therefore, be reversed, and the cause remanded with directions to sustain the demurrer, and for further proceedings not inconsistent with this opinion.\"}"
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+"{\"id\": \"1453676\", \"name\": \"Bobby CAMPBELL v. STATE of Arkansas\", \"name_abbreviation\": \"Campbell v. State\", \"decision_date\": \"1995-01-23\", \"docket_number\": \"CR 94-891\", \"first_page\": \"332\", \"last_page\": \"334\", \"citations\": \"319 Ark. 332\", \"volume\": \"319\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T20:31:45.372586+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Bobby CAMPBELL v. STATE of Arkansas\", \"head_matter\": \"Bobby CAMPBELL v. STATE of Arkansas\\nCR 94-891\\n891 S.W.2d 55\\nSupreme Court of Arkansas\\nOpinion delivered January 23, 1995\\nTom Garner, for appellant.\\nWinston Bryant, Att\\u2019y Gen., by: Gil Dudley, Asst. Att\\u2019y Gen., for appellee.\", \"word_count\": \"779\", \"char_count\": \"4822\", \"text\": \"Donald L. Corbin, Justice.\\nAppellant, Bobby Joe Campbell, appeals a judgment of the Izard County Circuit Court convicting him of one count of commercial burglary, three counts of breaking and entering, and two counts of theft, and sentencing him, as a habitual offender, consecutively to a cumulative term of thirty-five years imprisonment, with thirty-three years to be served in the Arkansas Department of Correction and two years to be served in the Izard County Jail. All convictions resulted from a single incident occurring October 19, 1993, when appellant and two others, Jerry Forrester and Casey Burris, stole quarters from a laundromat office and various machines including the washers and dryers. Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-2(a)(2). We find no error and affirm.\\nThe sole point urged for reversal in this case is that the trial court erred in denying appellant's motion for directed verdict by holding that state's witness Philip Naylor was not an accomplice. We observe this argument is based on a false premise. The trial court never ruled Naylor was not an accomplice because appellant never requested a ruling on this issue. The state contends this argument is not preserved for our review because appellant failed to move for a directed verdict on the specific grounds now argued on appeal. We agree that appellant did not raise this specific argument below. Appellant has therefore waived this argument on appeal.\\nOur law is well established that a directed verdict motion is treated as a challenge to the sufficiency of the evidence and requires the movant to apprise the trial court of the specific basis on which the motion is made. See, e.g., Daffron v. State, 318 Ark. 182, 885 S.W.2d 3 (1994); Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994); Stricklin v. State, 318 Ark. 36, 883 S.W.2d 465 (1994). Our law is equally well established that arguments not raised at trial will not be addressed for the first time on appeal, and that parties cannot change the grounds for an objection on appeal, but are bound on appeal' by the scope and nature of the objections and arguments presented at trial. See, e.g., Stricklin, 318 Ark. 36, 883 S.W.2d 465. Consistent with these principles of law, we have held that the failure to include accomplice testimony as a specific ground for a directed verdict was insufficient to raise the issue on appeal. Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994).\\nAt the close of the state's evidence, appellant made a general motion for directed verdict based on insufficient evidence of all the crimes charged against him. While appellant's counsel specifically addressed each count charged against appellant, the arguments made in support of the directed verdict motion on each count were general arguments of insufficiency rather than the identification of particular or specific missing elements of proof. With respect to the burglary charge, appellant's counsel stated that the only evidence presented was the testimony of co-defendant Forrester and then acknowledged that Naylor did offer testimony on this charge as well. However, appellant's counsel did not argue, as he does now on appeal, that Naylor was an accomplice or that the evidence offered against appellant was insufficient because it was produced entirely from accomplices and therefore required corroboration consistent with Ark. Code Ann. \\u00a7 16-89-111(e) (1987). Moreover, after the trial court stated sua sponte that Naylor's testimony provided corroboration of testimony by appellant's co-defendants, appellant's counsel never objected nor requested the trial court to rule Naylor was an accomplice. At the close of all the evidence, appellant simply renewed his previous motions for directed verdict and did not present any specific basis for the motions.\\nAdditionally, we note that although appellant bears the burden of proving Naylor was an accomplice whose testimony must be corroborated, Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993), appellant's counsel never asked the court to rule Naylor was an accomplice, nor did he request an instruction that the jury determine Naylor's status as an accomplice, nor did he request an instruction that the testimony of an accomplice required corroboration.\\nIn summary, while appellant did make a timely motion for directed verdict, it was made only on general insufficiency grounds, which does not preserve for our review the particular argument now raised. Jones, 318 Ark. 704, 889 S.W.2d 706. Accordingly, he has waived this argument on appeal and the judgments of conviction are affirmed.\"}"
\ No newline at end of file
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+"{\"id\": \"1455685\", \"name\": \"Bennie CLEVELAND v. STATE of Arkansas\", \"name_abbreviation\": \"Cleveland v. State\", \"decision_date\": \"1994-11-21\", \"docket_number\": \"CR 93-188\", \"first_page\": \"738\", \"last_page\": \"746\", \"citations\": \"318 Ark. 738\", \"volume\": \"318\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T18:11:44.314875+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hays and Brown, JJ., dissent.\", \"parties\": \"Bennie CLEVELAND v. STATE of Arkansas\", \"head_matter\": \"Bennie CLEVELAND v. STATE of Arkansas\\nCR 93-188\\n888 S.W.2d 629\\nSupreme Court of Arkansas\\nOpinion delivered November 21, 1994\\nThomas D. Deen, for appellant.\\nWinston Bryant, Att\\u2019y Gen., by: Brad Newman, Asst. Att\\u2019y Gen., for appellee.\", \"word_count\": \"2519\", \"char_count\": \"15133\", \"text\": \"Donald L. Corbin, Justice.\\nThis case is before us on certiorari from the United States Supreme Court vacating our deci sion reported as Cleveland v. State, 315 Ark. 91, 106-A, 865 S.W.2d 285, 292 (1993), and remanding the case for our reconsideration in light of the Court's decision reported as J.E.B. v. Alabama ex rel. T.B., 511 U.S._, 114 S. Ct. 1419 (1994). After a jury trial, appellant was convicted of five charges: capital murder, attempted capital murder, kidnapping, aggravated robbery, and theft of property; the kidnapping and aggravated robbery charges were merged in the capital murder conviction. Cleveland, 315 Ark. 91, 106-A, 865 S.W.2d 285, 292. Appellant was sentenced consecutively to life imprisonment without parole for the capital murder, thirty years imprisonment for the attempted capital murder, and ten years imprisonment for the theft of property. Id. Upon appeal to this court, we affirmed the convictions. Id. We now reverse and remand this case to Desha County Circuit Court for a new trial.\\nDuring voir dire proceedings prior to the empanelment of the jury for appellant's July 1992 trial, the following colloquy occurred:\\nMR. ROBINSON [counsel for defendant]: There is one more challenge. This has not yet become the law, but maybe one of these days, I guess \\u2014 We noticed in the strikes that of the ten challenges, that there, the, there is a gender bias. Nine females were struck and only one male by the State.\\nTHE COURT: All right. Are you \\u2014 Are you raising that as an objection to the use of the, the nine female strikes by the State?\\nMR. ROBINSON: Yes, sir. I have no case authority as the Court is well aware.\\nTHE COURT: The Court is frankly not aware of any at this time. It has been extended, but it hasn't been extended past \\u2014\\nMR. ROBINSON: Yes, Sir.\\nTHE COURT: \\u2014 past racially identifiably [sic] groups or, or parties at this point, as far as the Court knows. All right. But you have made your record.\\nWe take judicial notice of the fact that the case law alluded to in this exchange was Batson v. Kentucky, 476 U.S. 79 (1986) (a Kentucky state court criminal conviction on petition for certiorari) and its progeny. In Batson, the Court held that intentional discrimination on the basis of race in the exercise of peremptory challenges by a prosecutor in a criminal trial is violative of the protections afforded the defendant and the excluded juror under the Equal Protection Clause of the Fourteenth Amendment of our federal Constitution. Subsequently, the Court has extended this principle to govern civil proceedings as well, reasoning, in the words of Justice Blackmun: \\\"We have recognized that whether the trial is criminal or civil, potential jurors, as well as litigants, have an equal protection right to jury selection procedures that are free from state-sponsored group stereotypes rooted in and reflective of, historical prejudice.\\\" J.E.B., 511 U.S. at__, 114 S. Ct. at 1421 (citations omitted).\\nAt the date of appellant's trial, however, the Batson principle had not been extended by the Court to prohibit intentional discrimination on the basis of gender in the use of peremptory challenges in jury selection, and a division of authority existed among those state and lower federal courts which had considered the issue. Cleveland, 315 Ark. 91, 106-A, 865 S.W.2d 285, 292. The trial judge denied appellant's objection to the gender-based nature of the state's peremptory challenges, and on appeal to this court, we declined to extend Batson to this case, in view of the fact that the J.E.B. case, an Alabama state court paternity action on grant of certiorari, was then pending and expected to provide the Court the opportunity to resolve that issue. Id.\\nOn April 19, 1994, the J.E.B. case was decided, and the Court indeed extended the Batson principle to intentional discrimination in the use of peremptory strikes on the basis of gender, stating \\\"gender, like race, is an unconstitutional proxy for juror competence and impartiality.\\\" J.E.B., 511 U.S. at_, 114 S.Ct. at 1421. In the J.E.B. case, the State of Alabama filed a civil paternity action on behalf of the petitioner, id. at_, 114 S. Ct. at 1433 (O'Connor, J., concurring), and used nine of its ten peremptory challenges to remove men from the jury pool. The Court, in reversing and remanding the state court decision, held that \\\"[ijntentional discrimination on the basis of gender by state actors violates the Equal Protection Clause, particularly, where, as here, the discrimination serves to ratify and perpetuate invidious, archaic, and overbroad stereotypes about the relative abilities of men and women.\\\" Id. at__, 114 S. Ct. at 1422. We now hold that the J.E.B. decision also governs the prosecutor's use, as the state actor in this case, of its peremptory challenges.\\nIn J.E.B., the Court also confirmed that the requirements governing proof in the trial court of the unconstitutional nature of challenged race-based peremptory strikes outlined in the Batson decision also apply to proof of challenged gender-based peremptory strikes in jury selection. J.E.B., 511 U.S. at_, 114 S. Ct. at 1429-30. Since Batson, we have applied these requirements to compel the following procedure at trial to protect the constitutional rights of a defendant who objects to the state's use of its peremptory challenges on grounds of race bias:\\n[Ujpon a showing by a defendant of circumstances which raise an inference that the prosecutor exercised one or more of his peremptory challenges to exclude venire persons from the jury on account of race, the burden then shifts to the state to establish that the peremptory strike(s) were for racially neutral reasons. The trial court shall then determine from all relevant circumstances the sufficiency of the racially neutral explanation. If the state's explanation appears insufficient, the trial court must then conduct a sensitive inquiry into the basis for each of the challenges by the state.\\nThe standard of review for reversal of the trial court's evaluation of the sufficiency of the explanation must test whether the court's findings are clearly against a preponderance of the evidence. In every instance, however, the court shall state, in response to the defendant's objections, its ruling as to the sufficiency or insufficiency of the racially neutral explanation provided by the state.\\nColbert v. State, 304 Ark. 250, 255, 801 S.W.2d 643, 646 (1990).\\nA prima facie case of purposeful discrimination, in the context of the Batson test for challenged race-based peremptory strikes, we have held, may be made \\\"by showing one of the following: (1) the totality of the relevant factors gives rise to an inference of discriminatory purpose; (2) the total or seriously disproportionate exclusion of Negroes from the jury venires; or (3) a pattern of strikes, or questions and statements by a prosecuting attorney during voir dire.\\\" Wainwright v. State, 302 Ark. 371, 382, 790 S.W.2d 420, 425 (1990), cert. denied, 499 U.S. 913 (1991) (citation omitted). In this case, appellant's objection to the state's use of 90% of its peremptory challenges to remove women from the jury pool sufficed to raise an inference, if not a presumption, that the gender of the jurors involved was a factor in the decision to strike. Colbert, 304 Ark. 250, 801 S.W.2d 643; see also J.E.B., 511 U.S._, 114 S. Ct. 1419.\\nThat inference established, the explanation given by the state for its challenged strikes appears totally insufficient without further inquiry by the court to eliminate any probability of gender motivation in the state's actions. The state's explanation was as follows:\\n[PROSECUTING ATTORNEY]: Your Honor, I would just point out for the purposes of the record regarding the motion the Defense made on gender bias, that when you take a look at the Defense strikes, if, in fact, the State's were gender biased one way, so are the Defense's. Ten of the twelve are against males. And, you know, it appears to balance out.\\nIn this case, because the trial court failed to: (a) make a finding, from all relevant circumstances, as to the sufficiency of the state's gender-neutral explanation, and (b) as it appears was also required on these facts, then conduct a sensitive inquiry into the basis for each of the challenges by the state, the evidence before us does not establish that the state's challenges were for valid reasons without any gender bias. Therefore, the defendant's constitutional rights have not been protected and the trial court's error requires a reversal and retrial. Colbert, 304 Ark. 250, 801 S.W.2d 643.\\nIn so ruling, we reject the state's argument that the better remedy here is to remand this case to the trial court first for the limited purpose of conducting an evidentiary hearing to determine whether an equal protection violation was in fact committed at the July 1992 trial proceedings. We are mindful that our holding in this case is consistent with our prior rulings regard ing trial court failures to comply with the requirements of Bat-son hearings. Colbert, 304 Ark. 250, 801 S.W.2d 643; Wainwright,. 302 Ark. 371, 790 S.W.2d 420, cert. denied, 499 U.S. 913; Mitchell v. State, 295 Ark. 341, 750 S.W.2d 936 (1988); Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987). In addition, it is noteworthy that our holding will both avoid the difficulties of continuing and concluding the Batson hearing in this case more than two years after the original voir dire, and should more effectively expedite a speedy and economical ultimate disposition of this matter than would be the circumstance if we adopted the state's argument.\\nReversed and remanded.\\nHays and Brown, JJ., dissent.\"}"
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+"{\"id\": \"1456646\", \"name\": \"Poinsett County v. Lady and Poinsett County v. Walker\", \"name_abbreviation\": \"Poinsett County v. Lady & Poinsett County\", \"decision_date\": \"1940-01-15\", \"docket_number\": \"4-5736 and 4-5737\", \"first_page\": \"657\", \"last_page\": \"660\", \"citations\": \"199 Ark. 657\", \"volume\": \"199\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T18:51:45.957008+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Poinsett County v. Lady and Poinsett County v. Walker.\", \"head_matter\": \"Poinsett County v. Lady and Poinsett County v. Walker.\\n4-5736 and 4-5737\\n(consolidated)\\n135 S. W. 2d 665\\nOpinion delivered January 15, 1940.\\nMaddox & Greer and Edward S. Maddox, for appellant.\\nM. P. Watkins, for appellee.\", \"word_count\": \"1001\", \"char_count\": \"5720\", \"text\": \"McHaney, 3.\\nThese are separate appeals, but since they are almost identical questions of fact and identical questions of law, they will be disposed of in one opinion. The facts are stipulated in each case and are substantially as follows:'\\nAppellee Lady was the circuit clerk and appellee Walker was an active deputy sheriff of Poinsett county during the years 1937 and 1938. They each rendered certain services for Poinsett county in named felony cases then pending in the circuit court of said- county (criminal division) for which he is entitled to compensation, as set out in the stipulation, in a total amount, \\u2014 to .Lady, $79.90; to Walker, $143.40. In addition, Walker rendered services in serving and executing warrants and other processes issued out of a justice of the peace court of said county in criminal cases in which the defendants were charged with felony, in 1938, in the sum of $55.40. All of the cases in which costs accrued for services rendered by each appellee were disposed of by the criminal division of said circuit court, at its March, 1939, term, either by dismissal, acquittal, or conviction. In April, 1939, executions were issued against each of the defendants in the cases listed in the stipulation in which costs accrued to each appellee, for the collection of said costs, and delivered to the sheriff who returned same \\\"no goods found. ' ' It was the policy or practice of the county judge in 1937 and 1938 to pay no costs in felony cases in the circuit court until such cases were finally disposed of. On March 15, 1939, the then circuit clerk of said county certified the fees due each appellee, as above stated, as a part of the court costs in said cases to the county court. It was also agreed that the 1937 and 1938 revenue of said county has been completely exhausted, and that the county court disallowed the claims because there was no revenue from 1937 and 1938 with which to pay same; that same cannot be paid except out of the 1939 revenue, and \\\"that the anticipated revenue for 1939 is sufficient up to the present time to pay said claims. ' '\\nProm the order of disallowance, appeals were prosecuted to the circuit court, where the claims were allowed and judgment entered against the county for each of said sums, and it was directed that payment be made out of the 1939 county general revenue. The county has appealed.\\nWe think the circuit court was correct in so holding. No affidavit to these claims was required as in the ordinary contractual claims against the county. The exception or proviso to \\u00a7 2583 of Pope's Digest reads: \\\". . . Provided, the affidavit herein provided for shall not be required to any juror or witness certificates, or any claim which is a matter of record, or claims in the circuit court, when the same shall be duly certified down to the county court by the clerk of the circuit court.\\\" 'See, also, Saline County v. Kinkhead, 84 Ark. 399, 105 S. W. 581.\\n\\u2022Section 4119 of Pope's Digest provides that the county shall pay the costs in all criminal or penal cases, pending in the circuit courts under indictments, if the defendant is acquitted or nolle prosequi entered, and in felony eases if the defendant is convicted and has no property to pay the, costs. Section 4120 provides' that \\\"The county shall not be liable for costs when the defendant is convicted, until execution shall have been issued against the property of such convict, and returned unsatisfied for the want of property to satisfy the same, unless the court in which the trial was had shall certify that, in the opinion of such court, the costs can not be made out of the property of the defendant.\\\"\\nNow, it appears from the agreed statement the services of appellees were rendered in 1937 and 1938. While this is true, it was not and could not be determined at that time upon whom the liability for costs would fall, whether on the defendants or the county. All the cases in which these costs accrued were felony cases and all were disposed of at the March, 1939, term of circuit court either by nolle prosequi, acquittal or conviction. \\u2022\\nBy \\u00a7 4119 of Pope's Digest, the county is absolutely liable for costs in all \\\"criminal or penal cases,\\\" pending under indictments where either the defendant is acquitted or a nolle proseqx\\u00e1 entered, and where the defendant is convicted in a felony case and has no property the county is liable, under the conditions stated in \\u00a7 4120 \\u2022of Pope's Digest. So, it necessarily follows that a right of action on appellees' claims for.costs did not accrue until the cases in which the costs were incurred were disposed of, and not then until \\u00a7 4123 of Pope's Digest has been complied with which provides: \\\"In all cases where the county shall be liable to pay the costs and expenses in criminal cases, the circuit court in which the case was tried shall adjust the same and cause the same to be certified to the county court.\\\" As to the fees of appellee Walker which accrued in the justice court, the procedure for collecting fees in felony cases is provided by \\u00a7 5692 of Pope's Digest, and it is not suggested that this procedure was not followed. Both claims were disallowed because the revenue for 1937 and 1938 had been exhausted. Since these claims accrued in 1939, the county court was in error in disallowing them, and the circuit court correctly allowed them out of 1939 revenue, and they may still be paid out of such revenue at this time if the county had a sufficient surplus at the close of 1939.\\nAffirmed.\"}"
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diff --git a/arkansas/1459772.json b/arkansas/1459772.json
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+"{\"id\": \"1459772\", \"name\": \"Budd v. State\", \"name_abbreviation\": \"Budd v. State\", \"decision_date\": \"1939-10-02\", \"docket_number\": \"4134\", \"first_page\": \"869\", \"last_page\": \"871\", \"citations\": \"198 Ark. 869\", \"volume\": \"198\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T22:05:09.876258+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Budd v. State.\", \"head_matter\": \"Budd v. State.\\n4134\\n131 S. W. 2d 933\\nOpinion delivered October 2, 1939.\\nSullins S Sullins and Mayes <& Mayes, for appellant.\\nJack Holt, Attorney General, and Jno. P. Streepey, Asst. Atty. General, for appellee.\", \"word_count\": \"649\", \"char_count\": \"3607\", \"text\": \"McHaney, J.\\nAppellant was charged by information before a justice of the peace with the crime of misdemeanor, in that \\\"on or about the 11th day of December, 1938, unlawfully did drive and operate a certain motor vehicle while in drunken and intoxicated condition, against the peace and dignity of the state of Arkansas. ' ' Trial to a jury before the justice of the peace resulted in a verdict of guilty and a fine of $200, on which judgment was entered. On appeal to the circuit court he was again tried and convicted, and his punishment' was fixed at $100 fine and ten days in jail. From this latter judgment comes this appeal.\\nFor a reversal of the judgment against him, it is suggested, hut not argued or relied on for a reversal, that the information failed to allege that appellant was on a public street, public place or public highway. If the appellant thought the information insufficient in this particular, he should have raised the question in some way, either by demurrer, motion in arrest of judgment or a motion for a bill of particulars as provided in initiated act No. 3 (Acts 1937, p. 1384). Moreover, the question is not raised in the motion for a new trial. For any or all of these reasons this suggestion of error is not well taken.\\nThe only other assignment of error urged, indeed the only one raised in the motion for a new trial, is that the evidence was insufficient to sustain the judgment. In considering this assignment, our rule is that we must view the evidence in the light most favorable to the state, and if there is any substantial evidence to support the verdict, it will be sustained.\\nThe car in which appellant was riding and which it is charged he was driving was being driven north on highway 71 toward Fayetteville: Aubrey Yates testified that on the 11th day of December, 1938, he was driving south from Fayetteville on the same highway; that close to Westfork or Woolsey, a short time before dark, he met a car which ran into him; that he saw the car two or three hundred yards away before it got to him, and that it was using both sides of the highway, going from one side of the' road to the other; that he slowed his car down anct pulled over on the right-hand side as far as he could, with both wheels off the pavement, and had almost- stopped his car when the other car hit him. He pointed out appellant as the man who was driving the car, and further testified that, after the accident, appellant came toward him, his hat off, his face flushed and was excited. Appellant was arrested in Fayetteville by State police officers. Prior to making the arrest, they went to the scene of the accident, but appellant's car was gone; that they came back to Fayetteville and found his car near the jail with marks on the fenders where it had hit the bridge; that appellant was in the car trying to start it and was so drunk that he couldn't walk by himself, had to be helped into the jail. His testimony was corroborated by other evidence. Appellant did not testify, but offered evidence to the effect that some one else was driving the car at the time of the accident. This-made a disputed question of fact for the jury, and the evidence on behalf of the state was substantial that appellant was driving his car when the accid\\u00e9nt occurred, and' that he was intoxicated at the time.\\nUnder the well-settled rule announced above, the judgment must be affirmed.\"}"
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diff --git a/arkansas/1467079.json b/arkansas/1467079.json
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--- /dev/null
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+"{\"id\": \"1467079\", \"name\": \"Logan v. Harris\", \"name_abbreviation\": \"Logan v. Harris\", \"decision_date\": \"1948-03-08\", \"docket_number\": \"4-8464\", \"first_page\": \"37\", \"last_page\": \"43\", \"citations\": \"213 Ark. 37\", \"volume\": \"213\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T19:19:15.475820+00:00\", \"provenance\": \"CAP\", \"judges\": \"Justice McFaddin, concurs.\", \"parties\": \"Logan v. Harris.\", \"head_matter\": \"Logan v. Harris.\\n4-8464\\n210 S. W. 2d 301\\nOpinion delivered March 8, 1948.\\nD. B. Bartlett and W. J. Morroio, for appellant.\\nLinus A. Williams and J. E, Brock, for appellee.\", \"word_count\": \"2335\", \"char_count\": \"13368\", \"text\": \"McHaney, Justice.\\nAppellant is a justice of the peace in the City of Clarksville. Appellee was the mayor of said city, and, under ordinances 375 and 376, which undertook to establish a municipal court for said city, he was named therein as the judge of said court. After the adoption of said ordinances, the first on June 30, 1947, and the second on July 17, 1947, appellant issued a warrant against appellee for his arrest on a charge of misdemeanor and assumed jurisdiction to try him on said charge. Appellee sought a writ of prohibition from the circuit court on the ground that after the establishment of a municipal court by said ordinances, appellant's justice court had no jurisdiction of misdemeanors committed in the city. Appellant answered denying the validity of said ordinances, the establishment of a municipal court and attacking the qualifications of appellee to be the judge of said court, if established, on the grounds that appellee is not a lawyer, as required by general statutes, and that as mayor, he was a member of the city council and could not accept appointment to an office, or compensation, under an ordinance passed while he was such mayor or member of the council. '\\nTrial resulted in a judgment awarding the writ against appellant and he has appealed.\\nAppellee moves to dismiss the appeal because the motion for a new trial was not filed in 30 days after judgment. The judgment was filed and entered August 8, 1947, and the motion for a new trial was filed on September 4, well within the 30 days allowed by \\u00a7 1539 of Pope's Digest.\\nOn the merits, all the facts are stipulated. Ordinance 375 provides for the establishment of a municipal court in Clarksville \\\"under the provisions of Act No. 60 of the General Assembly, for the year 1927, and all acts amendatory thereto.\\\" Appellee, Sam Harris, was found to possess the necessary qualifications and was declared elected \\\"to serve as such municipal judge until the next regular election.\\\" Ordinance 376 does the same thing as ordinance 375, except it establishes a municipal court under the provisions of Act No. 128- of 1947, and provides in \\u00a7 3, that: \\\"A citizen qualified elector, residing within the corporate limits of the City of Clarksville, who has served in the capacity of mayor or justice of the peace for one year or more, shall be deemed eligible for appointment as municipal judge by the city council for the term provided by this ordinance. ' ' Appellee was elected to said office \\\"until the next regular city election.\\\"\\nIt is stipulated that appellee did not qualify under ordinance 375, but did under ordinance 376. Neither ordinance expressly repeals any other ordinance, it is appellant's contention that No. 376' repeals No. 375 by implication and that No. 376 is void because passed under the provisions of Act 128 of 1947.\\nWe agree with appellant that ordinance 376 was not effective to establish a municipal court in the City of Clarksville under Act 128 of 1947, because it became a city of the second class in 1920, and, under the express provisions of Act 128 of 1947, it applies only to county seat municipalities that become cities of the second class under the provisions of \\u00a7 9484 of Pope's Digest, as amended by Act No. 211 of 1939. Section 9484 was \\u00a7 1 of Act 334 of 1937, and, since Clarksville was made a city of the second class in 1920, as it is stipulated, it could not have been made such iinder \\u00a7 9484. So, we conclude that Ordinance 376 was ineffectual to establish a municipal court under the provisions of Act 128 of 1947.\\nWe do agree that Ordinance 375 did create and establish a municipal court in said city, under the authority of Act 60 of 1927, and amendatory acts. The ordinance conferred on said court: \\\"All the authority, duties, responsibilities, jurisdiction and limitations as provided for such courts under the law's of the State of Arkansas.\\\" It abolished the mayor's court then in existence. One of the matters of exclusive jurisdiction over .that of justices of the peace of the township in which the municipal court is situated is that of misdemeanors committed therein. Section 9905, Pope's Digest. So, the trial court properly granted the writ of prohibition here, unless it may be said that the election of appellee as judge of said court is void, because he was, and is ineligible for election or appointment by the city council. It is stipulated that appellee is not a lawyer. Section 9900 of Pope's Digest sets out the qualifications for such a judge, but we do not determine the question of appellee's title to the office in this proceeding. If the court was created, and we so hold, under Ordinance 375, appellant's jurisdiction of the misdemeanor case before him terminated and became vested in the municipal court, as the trial court properly held. Appellant, a private litigant, had no right to question appellee's title to the office of municipal judge in this proceeding. Cherry v. Webb, 196 Ark. 17, 115 S. W. 2d 865; Vanhoose v. McGregor, 172 Ark. 1012, 291 S. W. 422. These eases hold that, under the usurpation statute, Chap. 164, Pope's Digest, whenever a person usurps an office to which he is not entitled, it is the duty of the prosecuting attorney, if a county office, and of the attorney general, if any other office, or the person entitled to' the office, to institute an action to prevent the usurper from performing the duties of the office. \\\"The statute does not confer authority upon a private citizen to bring the suit.\\\" Cherry v. Webb, supra.\\nIn Smith v. State, ex rel. Duty, 211 Ark. 112, 199 S. W. 2d 578, we held that the prosecuting attorney could bring an action under said statute for a county office only, and could not bring suit to oust one from office of municipal judge, since it was a municipal and not a county office, but that the attorney general could. See, also, Scott v. McCoy, 212 Ark. 574, 206 S. W. 2d 440.\\nThe distinction between this case and the recent cases of Howell v. Howell and Stevens v. Stevens, infra, p. 298, 208 S. W. 2d 22, involving the second division of the Pulaski Chancery Court, is that in those cases the court held the act attempting to create the second division of said court was unconstitutional and void and, therefore, the incumbent's title to the office could be questioned collaterally by a litigant in said court, while in the case at bar ordinance No. 375 did create a municipal court in Clarksville, and the fact that it named a judge of said court who was ineligible to serve because not a lawyer, or for any other reason, cannot be raised in this proceeding.\\nThe judgment from which is this appeal held that the municipal court was created under said ordinances, prohibited appellant from proceeding further in the criminal case before him and ordered appellant to transfer said case and the record thereof to said municipal court and filed therein. No judgment was entered as to the competency of appellee to serve as municipal judge. We agree with this judgment and it is accordingly affirmed.\\nJustice McFaddin, concurs.\"}"
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diff --git a/arkansas/1488180.json b/arkansas/1488180.json
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--- /dev/null
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+"{\"id\": \"1488180\", \"name\": \"Clemenson v. Rebsamen\", \"name_abbreviation\": \"Clemenson v. Rebsamen\", \"decision_date\": \"1943-01-25\", \"docket_number\": \"4-6959\", \"first_page\": \"123\", \"last_page\": \"129\", \"citations\": \"205 Ark. 123\", \"volume\": \"205\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T21:06:17.474703+00:00\", \"provenance\": \"CAP\", \"judges\": \"Smith, J., did not participate in the consideration of this case.\", \"parties\": \"Clemenson v. Rebsamen.\", \"head_matter\": \"Clemenson v. Rebsamen.\\n4-6959\\n168 S. W. 2d 195\\nOpinion delivered January 25, 1943.\\nHenry McAllister and Shields M. Goodivin, for appellant.\\nJohn Sherrill and Frank Wills, for appellee.\", \"word_count\": \"1680\", \"char_count\": \"9760\", \"text\": \"Carter, J.\\nB}^ will, C. J. Mansfield created a trust for the benefit of his only child, the appellant, Mrs. Clemenson. Upon her death such of the property as has not been used by the trustees for her benefit is to go to named legatees. Mrs. Clemenson and all of the remaindermen, except one whose interest they proposed to have protected, agreed upon a termination of the trust and upon an immediate division of the property between them, free of the trust. The trustees refused to surrender the trust property. The Chancellor below refused to order the trustees to turn over the property. Mrs. Clemenson has appealed.\\nIn giving the property to the appellees as trustees, Mansfield vested in them broad powers to manage and invest the property, giving them as wide latitude in making investments as if they were the absolute owners.\\nParagraph Pour (P) of the will provides: \\\"The rest, residue and remainder of said net income of said trust estate shall be paid over, by my said trustees, in quarterly installments or more often if they deem it advisable, to my daughter, Hallie M. Hays Clemenson, so long as she shall live. If in the opinion of my said trustees, it is deemed necessary or advisable said trustees, in addition to the income on said property herein awarded to my daughter, may pay her a part or all of the corpus of the estate herein bequeathed to her,, if it be necessary for her proper maintenance and support.\\\"\\nParagraph Four (B) of the will provides: \\\"The said beneficiaries . . . shall not have the right or power by mortgage, pledge, assignment, sale or otherwise to anticipate, sell, pledge, charge, mortgage or otherwise encumber or dispose of in advance any part or the whole of his or her share of said trust estate, or any installment or installments of income, or to give orders in advance upon said trustees for any installment or installments of income; and no money or property payable or distributable by said trustees under the provisions of the trust, shall be in any manner liable while in possession of said trustees for the debts, contracts or engagements of any of the beneficiaries thereof.\\\"\\nParagraph twenty bequeaths the residue of the estate to the trustees for the benefit of named beneficiaries in fixed proportions. Paragraph twenty-three provides that the trustees shall make distribution to the beneficiaries named as soon as possible after the property comes into their possession \\\"except that they shall hold the property herein bequeathed to my daughter and distribute the income therefrom, or the corpus thereof, as herein provided. They shall also remain trustees under this will until after the death of my wife and my daughter and thereafter distribute the property coming into their hands from' the bequests to these two beneficiaries as soon thereafter as possible to the beneficiaries named herein.'*\\nAs stated, all of the persons, except one, who would share in the property remaining in the trust at the time of Mrs. Clemenson's death have joined her in asking for an immediate termination of the trust and an imwliether the failure of this one beneficiary to join is fatal.\\nThe Chancellor correctly held that the beneficiaries mediate division of the property. We do not consider had no right to compel the trustees, over the objection of the trustees, to terminate the trust and to turn the property over to the beneficiaries.\\nMansfield could do what he pleased with his property. He could attach such conditions as he saw fit to any of his gifts, provided he steered clear of positive prohibitions of the law, such as the Rule Against Perpetuities.\\nMansfield's obvious purpose was to assure the support of his daughter by having the property managed by trustees in whose judgment he had confidence so that an income would be certain and would be free from the claims of her creditors, and so that the principal would not be encroached upon unless such encroachment is necessary or advisable \\u2014 necessary or advisable not in the judgment of the daughter, but necessary or advisable in the judgment of the trustees. He gave the remaindermen nothing except what might be left of the corpus when his daughter died.\\nThat is what Mansfield gave. Neither his daughter nor the remaindermen have any legal right to anything except what he gave.\\nThe applicable rule is discussed in \\u00a7\\u2022 337 of the A. L. I. Restatement on Trusts and in \\u00a7 337 of Scott on Trusts. Where the continuance of a trust is necessary to carry out a material purpose for which it was created the beneficiaries cannot compel its termination.\\nMansfield's trust cannot be terminated, against the judgment of the trustees named by him, without destroying a material purpose \\u2014 the only purpose for which he created the trust. \\\"\\nIn \\u00a7 337.2 of Scott on Trusts (Vol. Ill, p. 1841), the author, citing authorities, states: \\\"Thus, if a trust is created under which the income is payable to one beneficiary for life and the principal is payable on his death to others, and the'interest of the life beneficiary is inalienable,-the trust will not be terminated even though all the beneficiaries are sui juris and desire to terminate it.\\\"\\nAs between persons claiming under the will, the. interest of Mrs. Clemenson in the income from the property held by the trustees must be regarded as inalienable. See Driver v. Driver, 187 Ark. 875, 63 S. W. 2d 274, where the validity of such provision for inalienability was upheld against the claim of a creditor.. The fact that the trustees may, in their discretion, give her more than she has a right to demand does not destroy the inalienability of the right given her by the will.\\nIn \\u00a7 337.4 of Scott on Trusts, the author discusses the termination of trusts created for the assured's support of a beneficiary, and where, as here, the trustees are given discretion. The rule is stated to be that the trustee cannot be compelled to terminate the trust because to do so would destroy the purpose of the settlor to provide for assured's support.\\nMrs. Clemenson argues that in the case of Pool, Trustee, v. Cross County Bank, 199 Ark. 144, 133 S. W. 2d 19, it was held that a trust such as this, where the trustees have discretion to convey a part or all of the principal to the beneficiary, is not a \\\"spendthrift\\\" trust. Therefore, she argues, the beneficiaries have a right to force a termination of the trust. The Pool case is not authority for this proposition. In that case, the trustees \\u2022 had conveyed all of the property to the beneficiary and the question was whether the beneficiary now had a good title free from the trust \\u2014 whether under the trust instrument the trustees had authority to convey to the beneficiary free from the trust. The court held that the trustees had such authority and that a good title passed. The result in the Pool case was correct \\u2014 assuming the correctness of the interpretation of that trust instrument as to the authority of the trustees. But that case does not hold that because the trustees have discretion to encroach on the principal, in part or in whole, the beneficiaries may compel the termination of the trust. Circumstances might arise which might justify court interference with the discretion of the trustees, but no such circumstances are argued here.\\nAppellant cites Booe v. Vinson, 104 Ark. 439, 149 S. W. 524, and Black v. Bailey, 142 Ark. 201, 218 S. W. 210. In the Booe case, the gifts over were held void and it was held that the entire estate vested at once in the beneficiary. It was said that the will in that case showed no attempt to create a spendthrift trust nor did the will show any unwillingness on the part of the' testator for the beneficiaries to have absolute ownership and control in the event the gifts over should fail. The gifts over in the case at bar are not void, and Mansfield clearly expressed his desire that his daughter should not get the corpus unless and until his trustees deemed it advisable or necessary.\\nIn Black v. Bailey, the trust property had ceased to be self-sustaining, produced no net income, and in order to make it self-sustaining a large expenditure was needed and no method was provided for raising the needed funds. No intent to create a spendthrift or discretionary trust was shown. \\\"The only purpose seems to have been to hold the property intact for a period of years for the use and benefit of all his children.\\\" . . . \\\"A continuation of the trust will perhaps work a confiscation of the property, or, at least, greatly burden it with incumbrances.\\\" Two members of this court dissented. None of the circumstances there are shown to exist in the case at bar. Here we have a clearly shown purpose to prevent the beneficiary from having any control over the property unless and until the trustees deemed it wise and this was the sole material purpose of the creation of the trust.\\nThere app\\u00e9ar to be conflicting clauses in the will with reference to the compensation of the trustees. The trustees have appealed from the decree of the Chancellor as to which clause should govern. They urge nothing here except that a different interpretation of the will might, under some circumstances, be better for all concerned. Such a consideration, if true, is not sufficient to justify this court in reversing the considered decision of the chancellor as to the meaning of the will. While chancery cases are tried ele novo in this court, this court accepts as correct the decisions of the lower court which the parties do not show to he wrong.\\nThe decree is affirmed.\\nSmith, J., did not participate in the consideration of this case.\"}"
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diff --git a/arkansas/1495693.json b/arkansas/1495693.json
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--- /dev/null
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+"{\"id\": \"1495693\", \"name\": \"Myar v. Poe\", \"name_abbreviation\": \"Myar v. Poe\", \"decision_date\": \"1906-07-02\", \"docket_number\": \"\", \"first_page\": \"465\", \"last_page\": \"469\", \"citations\": \"79 Ark. 465\", \"volume\": \"79\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T00:24:48.536405+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Myar v. Poe.\", \"head_matter\": \"Myar v. Poe.\\nOpinion delivered July 2, 1906.\\n1. Corporation \\u2014 filing annual certificate \\u2014 powers of vice-president.\\u2014 Under Kirby\\u2019s Digest, \\u00a7 \\u00a7 848, 859, requiring the president and secretary of business corporations to file annually a certificate showing the amount of capital paid, the value of its real and personal property, including credits, the amount of its debts, the name and number of shares of each stockholder, etc., such certificate may be filed by the vice-president and secretary, where the president is absent from the county. (Page 468.)\\n2. Corporation \\u2014 by-law.\\u2014A provision in the articles of association of a corporation for the election of a vice-president is a by-law within Kirby\\u2019s Digest, \\u00a7 843, providing that the directors of a corporation shall choose a president, secretary and treasurer and \\u201csuch other officers as the by-laws of the corporation shall prescribe.\\u201d (Page 469.)\\nAppeal from Pulaski Circuit Court; Bdward W. Winfield, Judge;\\nreversed.\\nMorris M. Cohn, for appellant.\\n1. This is a penal suit, or, at least, a suit ex delicto to enforce a statutory liability. The justice of the peace had no jurisdiction, and the circuit court acquired none on appeal. Kirby\\u2019s Digest, \\u00a7 \\u00a7 848, 859; art 7, \\u00a7 40, Const.; 101 U. S. 188; 113 U. S. 452; Thompson, Liability of Directors, 455, 456; lb. 416; lb. 425; 146 U. S. 567; 64 Ark. 271; 37 Mich. 416; 12 Met. (Mass.), 249; Mechem, Agency, \\u00a7 539; 68 Ark. 440; 146 U. S. 674; 114 Fed. 290; 96 N. Y. 323; 113 U. S. 457; 35 Ark. 622; 39 Ark. 463; 52 Ark. 240; 62 Ark. 360; 56 Ark. 592; 48 Ark. 301; 7 Ark. 172; 43 Ark. 375; 197 U. S. 154-\\n\\u25a0 2. The action was premature. The primary liability is on the corporation, which ought to be enforced before seeking to impose a secondary liability. 93 U. S. 228; 113 U. S. 302; 3 Bradw. (Ill. App.), 191; lb. 202; 24 Ga. 273; 41 Fed. 459; 34 Ark. 323; 71 Ark. 1; 20 Wall. 520, and authorities supra.\\n3. The intent of the law was fully complied with when a .report for the year ending July 1, 1903, was signed, verified and filed by the 'vice-president of the company. 4 Thomp. Corp. \\u00a7 4687. No issue is raised as to the correctness of the reports. 3 Thomp. Corp. \\u00a7 4235; 26' P\\u00e1c. 812. See also 58 ITun (N. Y.), 87; 29 Barb. (N. Y.), 196.\\nB. B. Kinsworthy and Marshall & Coffman, for appellee.\\n1. The statute is not penal. . 68 Ark. 433, and authorities cited; 10 Cyc. 854-5-6. The liability therefore must.be contractual. 3 Thomp. Corp. \\u00a7 4164; 76 Fed. 695; 61 Minn. 375; 11 Neb. 243; 45 N. W. 923; 118 Mass. 295; 176 U. S. 599; 14 S. C. 494.\\n2. The statement filed July, 1, 1903, did not comply with the law, because it was not signed and sworn to by the president and secretary; because it did not show the condition of the business on that date, and because the affidavit does not show that it is a true and correct statement of the business on that date. 79 N. Y. Sup. 437; 56 Id. 542; 65 Id. 391; 50 Id. 265; 67 How. Practice, 204; 40 N. Y. Sup. 1081; 79 Fed. 919; 86 Fed. 4435 47 N. Y. Sup. 302.\", \"word_count\": \"1778\", \"char_count\": \"10085\", \"text\": \"Battle, J.\\nFranklin Bros. Company was a corporation organized under the laws of. Arkansas. Its domicil and place of business was Little Rock, Arkansas. Henry W. Myar was its president; J. P. Franklin, vice-president; Joe A. Franklin, secretary, and Oscar Davis, treasurer.\\nSections 848 and 859 of Kirby's Digest are respectively as follows:\\n\\\"Sec. 848. The president and secretary of every corporation organized under the provisions of this act shall annuallv make a certificate showing the condition of affairs of such corporation; as nearly as the same can be ascertained, on the first day of January or July next preceding the time of making such certificate, in the following particulars, viz.: The amount of capital actually paid in; the cash value of its real estate; the cash value of its personal property; the cash value of its credits; the amounts of its debts; the name and number of shares of each stockholder, which certificate shall be deposited on or before the 15th of February, or of August, with the county clerk of the county in which said corporation transacts its business, who shall record -the same at length in a book to be kept by him for that purpose.\\n\\\"Sec. 859. If the president or secretary of such corporation shall neglect or refuse to comply with the provisions of section 848 and to perform the duties required of them respectively, the person so neglecting or refusing shall jointly and severally be liable to an action founded on this statute for all debts of such corporation contracted during the period of any such neglect or refusal.\\\"\\nA. B. Poe brought an action against Franklin Bros. Com.pany, H. W. Myar and J. A. Franklin, before a justice of the peace of Pulaski County. Pie stated in his complaint that \\\"he is a creditor of Franklin Bros. Company, a corporation duly organized and doing business under the laws of Arkansas, with its offices and domicil in Pulaski County. That plaintiff's debt amounts to $150, all of which has been incurred during the calendar year 1904. That defendants are and have been for the last two years or more president and secretary respectively of said corporation, and as such officers it became their duty to annually file with the clerk of the Pulaski County Court a verified statement. showing the condition of the affairs of said corporation on the first day of January, or of July, next preceding time of filing same. That they have wholly failed and refused to file such statement, and have been in default thereof for two years last past until July 7, 1904, and that plaintiff's debt was incurred by said corporation during the period of such default. Plaintiff alleges' that said defendants are jointly and severally liable to plaintiff for its said debt.\\\" And he asked for judgment against the defendants for its debt, interest and costs.\\nPlaintiff recovered judgment before the justice of the peace, and defendants appealed to the circuit court.\\nMyar filed an answer in the circuit court, denying the allegations of the complaint.\\nThe court, sitting as a jury and trying the issues in the case, found the facts and law as follows: \\\"The court finds that Franklin Bros. Company was a corporation' organized under the laws of Arkansas; that H. W. Myar was president; that the annual statements of said corporation were filed February 12, 1902, July 1, 1903, and July 4, 1904; that the statement filed July 1, 1903, was signed and sworn to by J. P. Franklin, vice-president, and J. A. Franklin, secretary; that the indebtedness sued for was contracted between January 1, 1904, and May 1, 1904; that the statement filed July 1, 1903, was not sufficient to relieve H. W. Myar; that he is liable for the amount of ($137.60) one hundred and thirty-seven dollars and sixty cents, with interest from July 1, 1904, that being the date of the filing of this suit in Justice Wilson's court.\\\"\\nThe court thereupon rendered judgment in favor of plaintiff against Myar for $146.55 for his debt and damages; and Myar appealed.\\nAt the time the statement was filed on July 1, 1903, Myar, the president, was absent at Camden, in this State, and J. P. Franklin, the vice-president of the company, was discharging the duties of president. It was his duty to act as president, and perform the duties which devolve upon that office; and his discharge of such duties, in the absence of Myai', had the same effect as the performance of them by the president; and the filing of the statement on July 1, 1903, was a compliance with section 848 of Kirby's Digest. Smith v. Smith, 62 Ill. 493; Pond v. National Mortgage, etc., Co., 6 Kan. App. 718; Colman v. West Virginia Oil, etc., Co., 25 W. Va. 148. The statute did not require the president and secretary to file another statement before the first of July, 1904, and they were not in default when the debt to appellee was contracted, it having been contracted between January 1, 1904, and May 1, 1904; and they are not liable for it. The correctness of the statement filed July 1, 1903, is not questioned in this action, but is virtually conceded.\\nReversed and remanded for a new trial.\\nOpinion delivered July 23, 1906.\"}"
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diff --git a/arkansas/1511837.json b/arkansas/1511837.json
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+"{\"id\": \"1511837\", \"name\": \"State v. Smith\", \"name_abbreviation\": \"State v. Smith\", \"decision_date\": \"1909-06-07\", \"docket_number\": \"\", \"first_page\": \"1\", \"last_page\": \"5\", \"citations\": \"91 Ark. 1\", \"volume\": \"91\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T00:17:42.645764+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Smith.\", \"head_matter\": \"State v. Smith.\\nOpinion delivered June 7, 1909.\\n1. Banks \\u2014 fraudulent acceptance of deposit. \\u2014 An indictment of a bank cashier for fraudulently accepting a check, on deposit when he knew that the bank was insolvent was not defective in failing to allege the date and the name of the drawer of the check, where the check is sufficiently .identified by stating the name of the drawee and payee and the amount of the check. (Page 3.)\\n2. Same \\u2014 fraud\\u2014acceptance of deposit. \\u2014 An indictment of a cashier of an insolvent bank for fraudulently receiving on deposit a check from one G. should be understood to mean that the deposit was made by G. for his own account. (Page 4.)\\n3. Same \\u2014 Fraud\\u2014sufficiency op indictment. \\u2014 An indictment of the cashier of an insolvent bank for fraudulently receiving a check on deposit need not state whether the check was received as a general or a special deposit. (Page 4.)\\n4. Same \\u2014 fraudulent banking \\u2014 construction of statute. \\u2014 .Kirby\\u2019s Digest, \\u00a7 1814, making it a felony for an insolvent bank to receive on deposit any bank bills or notes or United States treasury notes, \\u201cor other notes, bills or drafts circulating as money,\\u201d by the phrase quoted refers to notes, bills or drafts (other than United States treasury notes and national bank notes) which are payable to bearer or are properly indorsed by the payee, so as to pass from hand to hand. (Page 4.)\\n5- Same \\u2014 fraudulent banking \\u2014 acceptance of check. \\u2014 An indictment of a bank cashier for fraudulently receiving on deposit from G. a check payable to B. is defective in failing to allege either that the check was indorsed by B. or that it was an obligation which circulated as money. (Page 4.)\\n6. .Same \\u2014 sufficiency of indictment of cashier. \\u2014 An allegation, in an indictment of the cashier of an insolvent .bank for fraudulently accepting a check on deposit, that the check was accepted by defendant in lieu of money is not equivalent to an allegation that the check was circulating as money. (Page 5.)\\nAppeal from Ouachita Circuit Court; George W. Hays, Judge;\\naffirmed.\\nHal L. Norwood, Attorney General, and C. A. Cunningham, Assistant, for appellant.\\nThe ruling on the demurrer is the only question raised by the State\\u2019s appeal, as defendant did not appeal. Kirby\\u2019s Dig. \\u00a7 1225; 44 Ark. 25. The description in the indictment is sufficient to put defendant on notice as to the offense charged, and enable him to plead former acquittal or conviction. 26 Ark. 332; 27 Id. 498; 34 Id. 159; 98 N. C. 773; 71 Id. 176. The meat of the offense is accepting the check as a deposit, and it makes no difference to whose credit it was deposited; nor does its date cut any figure. It is evident the check was indorsed. 79 la. 432; 65 N. W. 309; 6 N. E. 123; 7 Id. 763; 107 Id. 94.\\nThe indictment sets out every fact necessary under \\u00a7 1814, Kirby\\u2019s Dig. 163 Pa. St. 142.\", \"word_count\": \"1699\", \"char_count\": \"9503\", \"text\": \"MoC\\u00fceeoch, C. J.\\nThe circuit court sustained a demurrer to an indictment in the following form (omitting caption and formal parts) : \\\"The said defendant, on the 3rd day of October, 1904, in Union County, Arkansas, then and there being the cashier of the Bank of El Dorado, said Bank of El Dorado being a corporation, with its home office located in the town of El Dorado, Union County, Arkansas, did unlawfully, wilfully, knowingly and feloniously accept and receive on deposit in said Bank of El Dorado, of and from G. D. Yocum, a certain bill of exchange for $974.61, commonly called and known as a check, which was signed and drawn by J. R. Burns and payable to Miss Bobbie Yocum, said bill of exchange so commonly called and known as a check aforesaid, then and there being accepted and received on deposit in said Bank of El Dorado by the said defendant in lieu of money, the said Bank of El Dorado then and there being insolvent, and the said E. PI. Smith then and there being the cashier of said bank, and well knowing at the time he so accepted and received on deposit said bill of exchange, so commonly called and known as a check as aforesaid, that' said Bank of El Dorado was then and there insolvent.\\\"\\nThe points of attack upon this indictment are set forth in the demurrer as follows:\\n\\\"rst. The date of said check is not stated, nor does the indictment allege that said date was unknown to the grand jury.\\n\\\"2nd. The name of the bank, corporation, firm, company or person on whom said check was drawn by J. R. Burns is not stated, nor does the indictment allege that same was unknown to the grand jury.\\n\\\"3rd. The indictment fails to state to whose account said check was deposited by the said G. D. Yocum, or for whose account it was accepted and received by the defendant.\\n\\\"4th. The indictment fails to state whether the check referred to therein was accepted by the defendant as cashier of the Bank of El Dorado as a general deposit, thereby becoming a part of the funds of said bank, or on special deposit, as bailee of the owner of same.\\n\\\"5th. The indictment fails to state whether the check referred to therein was indorsed by Miss Bobbie Yocum to G. D. Yocum, or whether the said G. D. Yocum was the owner of said check, and as such deposited same, or whether in the deposit of said check he acted as the agent of the payee or other person.\\n\\\"6th. The indictment fails to allege that the check referred to therein circulated as money, as required by the statute.\\\"\\nThe statute under which the indictment is preferred reads as follows: \\\"No bank shall accept or receive on deposit, with or without interest, any money, bank bills or notes, or United States treasury notes, gold or silver certificates, or currency, or other notes, bills or drafts, circulating as money, or currency, when such bank is insolvent; and any officer, director, cashier, manager, member, party or managing party of any bank who shall knowingly violate the provisions of this section, or be accessory to, or permit or connive at the receiving or accepting on deposit of any such deposit, shall be guilty of a felony, and upon conviction thereof shall be imprisoned in the State Penitentiary not less than three years and not more than five years.\\\" Act Eeb. 12, 1901, Kirby's Digest, \\u00a7 1814.\\nWe are of the opinion that the first and second grounds set forth in demurrer are not well taken. The check was fully identified by the description given in the indictment, without stating the name of drawer or the date of the check. The name of the drawee is stated, the name of the payee and the amount of the check. This, we think, is sufficient to fully identify the check so that the defendant could plead former acquittal or conviction to a second indictment.\\nThe third ground is likewise without substantial foundation. The indictment charges that the deposit was received from G., D. Yocum. This could only be understood to mean that the deposit was made by G. D. Yocum for his own account, and was so accepted by the defendant. State v. Cadwell, 79 Iowa 432.\\nThere is no merit in the fourth ground of demurrer. The statute makes no distinction between general and special deposits, so far as this offense is concerned, and it is unnecessary to allege in the indictment the particular character of deposit \\u2014 whether general or special. It is sufficient to allege that the funds, etc., were deposited.\\nThe fifth and sixth grounds of the demurrer relate to the same point, and should be considered together. The allegations of the indictment are to the effect that the check deposited by G. D. Yocum was one drawn by J. R. Burns in favor of Miss Bobbie Yocum, but it is neither alleged in terms that the check was indorsed by the payee nor that it was an obligation which circulated as money.\\nIt is not altogether clear what the Legislature meant by the words \\\"other notes, bills or drafts, circulating as money, or currency.\\\" Literally construed, there are no \\\"notes, bills or drafts\\\" which circulate as money or currency except United States treasury notes and national bank notes, and it is obvious that the Legislature did not refer to these in using this language, for they-are especially mentioned in the statute. If any meaning at all be given to this language, it must be held to refer to notes, bills or drafts (other than United States treasury notes and national bank notes) which pass from hand to hand; that is to say, such as are payable to bearer or are properly indorsed by the payee, so that the legal title may pass by delivery.\\nNow, applying this test, the allegations of the indictment do not sufficiently describe the check so as to bring it within the terms of the statute. It is not alleged, either in general terms that it was a \\\"note or draft circulating as money or currency,\\\" or that the check which was drawn payable to Miss Bobbie Yo- cum was ever indorsed by her so that the legal title might pass by delivery.\\nIt is contended on behalf of the State that the allegation of the indictment to the effect that the check was accepted by the defendant in lieu of money was equivalent to an allegation that it was a draft circulating as money. We do not think so. The meaning of the two statements is altogether different. One is descriptive of the written instrument, and,the other refers entirely to the manner of acceptance of the paper. It may as well be said that an allegation of acceptance on deposit of a horse or bale of cotton in lieu of money would bring it within the statute.\\nThe statute must be strictly construed, and in order to make out a charge under it the language must state facts within its express terms.\\nAffirmed.\"}"
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diff --git a/arkansas/1513866.json b/arkansas/1513866.json
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+"{\"id\": \"1513866\", \"name\": \"Ayer & Lord Tie Company v. Young\", \"name_abbreviation\": \"Ayer & Lord Tie Co. v. Young\", \"decision_date\": \"1909-03-29\", \"docket_number\": \"\", \"first_page\": \"104\", \"last_page\": \"108\", \"citations\": \"90 Ark. 104\", \"volume\": \"90\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T19:38:08.640103+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ayer & Lord Tie Company v. Young.\", \"head_matter\": \"Ayer & Lord Tie Company v. Young.\\nOpinion delivered March 29, 1909.\\n1. Agency \\u2014 how- proved. \\u2014 While the relation of principal and agent cannot be proved by declarations of the agent, it may be established by the agent\\u2019s testimony. (Page lo\\u00f3.)\\n2. Same \\u2014 ratification.\\u2014iWhere defendant lumber company employed plaintiff to build a certain skidway for it to cost $15, and an agent of defendant built a different skidway at an increased cost, the mere fact that defendant used the skidway as built does not establish that the act of the agent was^ratified if it was unauthorized. (Page i\\u00b07-)\\n3. Instruction \\u2014 unsupported hypothesis. \\u2014 It is prejudicial error to give an instruction based on a hypothesis unsupported by the evidence when such instruction is calculated to confuse the jury and divert their minds from the real issue in the case. (Page 107.)\\nAppeal from Monroe Circuit Court, Eugene Lankford, Judge;\\nreversed.\\nSTATEMENT BY THE COURT.\\nThis action was brought by Herbert Young against the Ayer & Lord Tie Company for an amount alleged to be due him by defendant for building a skidway at a lumber mill.\\nIn October or November, 1906, one U. S. Pitney, who had charge of the defendant company\\u2019s business in the State of Arkansas, made an agreement with the plaintiff to build a skid-way at a sawmill on White River, and agreed to pay him therefor $15. The defendant had a contract with the owners of the mill to furnish them saw logs, and the skidway was to be used in delivering the logs. The plaintiff started the erection of the skidway, but soon afterwards stopped work on account of the high water.\\nThe plaintiff testified that he did nothing more toward the erection of the skidway until the following summer, when one Harbin, an employee of the defendant, came down to look after the work, -and to see about cutting the timber and logs. That Harbin said the mill owners objected to the kind of skids that were being put in, and made a new contract with him to build a different kind of skidway. That he then erected it according to the terms of the -new contract, and that there is a balance due him of-$85.\\nC. M. Harbin testified that he -was sent by the company to get some one to log the mill and to put it in condition to receive the logs for sawing; that a skidway was necessary for this purpose; that he instructed Herbert Young to fix the skidway, and that if there was any additional work outside of what Pitney had told him to do that he would see that he got his money.\\nPitney testified that Harbin was sent to the mill by him to start it up, but that he had \\u00a1no authority to make an additional or new conract with Young-.\\nThe suit was originally brought in the justice of the peace court. On appeal in -the circuit court, there was a verdict for the plaintiff for $50. The defendant has duly prosecuted an appeal to this court.\\nThomas & Lee, for appellant.\\n1. There is no affirmative proof that Harbin was the agent of appellant, and his acts, admissions and declarations are not competent until his agency is shown by affirmative proof. 223 111. 41; 79 N. E. 38; 53 S. E. 908; 5 How. 29; 43 111. 43; I Conn. 255; 193 Mass. 458 ; 87 Pac. 469; 107 N. W. 227-; 10 Ark. 213; 58 Id. 21; 76 Id. 472; 64 Id. 217; 96 Iowa 737; m Eed. 337; 28 Nev. 235; 85 Pac. 657; 33 S. W. 604; 22 N. W. 276; 129 Fed. 583-5.\\n2. Proof of the making of similar -contracts by an agent which were carried 'out by the principal is inadmissible to show the agent\\u2019s authority or to raise an inference that he had authority to make the contract. 97 Mich. 72; 92 S. W. 273-4; 82 Tex. 516; 44 111. 437; 53 S, E. 908; 41 Me. 382.\\n3. To submit the question of agency or ratification to a jury where there is no competent evidence -is reversible error. 28 Pac. 505; 96 Iowa, 737; 85 N. W. 403.\\n3. There is no proof that Plarbin was ever an agent, or that his acts were made known to appellant. There must be full knowledge by the principal of all the material facts and of the terms of a contract, as these are essential -elements of an effective ratification by the principal of an unauthorized contract of his agent. 107 N. W. 227; 69 Id. 308; 85 Pac. 657-661; 115 111. 138; 41 Me. 382; 9 Pet. 607-629; 105 U. S. 355-360; 121 Id. 135; 115 Eed. 678-681; 128 Id. 243-255; 41 U. S. 213-18; Clark & Skyles on Ag. \\u00a7 10.6-7, PP- 266, 271; 64 Ark. 217; 76 Id- 472; 58 Id. 21; 31 Id. 212; 76 Id. 563. In view of these authorities, the court erred in its instructions.\\nManning & Emerson, for appellee.\\n1. Appellant\\u2019s objection to the instructions are general. The court\\u2019s attention should have been called to defects, and a specific instruction correcting the alleged defects asked. 89 Ark. 24.\\n2. No exceptions were saved to the testimony of Young and Simmons.\\n3. The proof shows ratification by appellant. Acquiescence and silence when the agent\\u2019s acts are brought home to the knowledge of the principal is a ratification. 32 Fed. 270; 87 Id. 61; 73 Id. no; 21 Ark. 554; 29 Id. 131; 42 Id. 97; 66 Id. 209. Third parties are entitled to notice of the restrictions of the agent\\u2019s authority where he is attending generally to the business of a principal. 27 Fed. 894 and cases supra.\", \"word_count\": \"1711\", \"char_count\": \"9406\", \"text\": \"Hart, J.,\\n(after stating the facts). It is earnestly insisted by counsel for appellant that there is no evidence in the record tending to show that Harbin was ever an agent of the Ayer & Lord Tie Company, and that the acts-, admissions or declarations of Harbin are not competent to prove his agency. While it is true -that in an action against the principal the declarations or admissions of the agent are not competent to prove the agency, the rule has no application here. No attempt was made to prove Harbin's authority by his declarations or admissions. Harbin was a witness in the case, and his testimony was of matters of which he stated he had knowledge. If he knew the facts concerning the extent of his authority, his testimony was as competent on that point as that of any other witness having knowledge of the same facts. The point was expressly so ruled in the case of Beekman Lumber Co. v. Kittrell, 80 Ark. 228.\\nThe testimony of Harbin to the effect -that he was sent down there to start the mill up and have it logged, in connection with his further testimony that the skidway was necessary for this purpose, was sufficient testimony from which the jury might infer that he had the authority to make the contract sued on.\\nCounsel for appellant also assigns as error the action of the court in giving the following instructions:\\n\\\"No. 3. Although you believe from the evidence that Pitney agreed to pay plaintiff $15 for building a skidway, still if you find from the evidence that a new and different contract was made by the plaintiff and Harbin, who was in the employ of the defendant, whereby a different sum was to be paid for different work, the defendant would be liable, if you find that the work was done by the plaintiff for defendant under the last contract, and defendant ratified same by receiving the benefit of the labor.\\n\\\"No. 4. It was agreed by the plaintiff and the defendant \\u2022company, or its agent, Mr. Pitney, that he was to build a certain skidway, made in a certain manner, for $15, then he could not recover more -than,, $15 for building it, although it might work a hardship on him; but if you find that, after they started to build it, an agent of the company, or one \\u2022 acting as the agent of the company, wanted a change or additions made to it, and promised to pay him for these additions, and he did make changes and additions different from the first contract, and did the work, and the company received the benefits of it, then he would be entitled tq whatever additional changes in the work was worth.\\\"\\nWe think these instructions should not have been given. There was no testimony upon which to base a finding that there was a ratification \\u00f3f any contract made by Harbin. Counsel for appellee insist that the using of the skids after they were built was a ratification. The company's conduct in this respect was not inconsistent with any other hypothesis than that of approval of Harbin's acts. The skidway was there, and was necessary to be used in logging the mill. We do not think the mere use of the skids by appellant would amount to a ratification of Harbin's acts. The instructions then were purely abstract. It has been repeatedly held by this court that instructions are given by the court for the purpose of aiding the jury in arriving at a proper determination of the issues presented to them. Instructions which are not applicable to any state of facts are abstract and misleading when they are foreign to the issues. It can not be determined here whether the jury found for the appellee because they believed Harbin made the new contract and had authority to make it, or because they believed the appellant ratified his unauthorized contract. Hence the instructions were prejudicial.\\n\\\"It is prejudicial error to give an instruction based on a hypothesis unsupported by the evidence, where such instruction is calculated to confuse the jury and divert their minds from the real issue in the case.\\\" St. Louis, I. M. & S. Ry. Co. v. Woodward. 70 Ark. 441; St. Louis, I. M. & S. Ry. Co. v. Denty, 63 Ark. 177; St. Louis, I. M. & S. Ry. Co. v. Puckett, 88 Ark. 204.\\nFor the error in giving instructions Nos. 3 and 4, the judg- ment is reversed and the cause remanded for a new trial.\"}"
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diff --git a/arkansas/1513902.json b/arkansas/1513902.json
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index 0000000000000000000000000000000000000000..c853edf0389fbc099008505dd8eaf180016ef246
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+"{\"id\": \"1513902\", \"name\": \"Miles v. St. Louis, Iron Mountain & Southern Railway Company\", \"name_abbreviation\": \"Miles v. St. Louis, Iron Mountain & Southern Railway Co.\", \"decision_date\": \"1909-05-17\", \"docket_number\": \"\", \"first_page\": \"485\", \"last_page\": \"494\", \"citations\": \"90 Ark. 485\", \"volume\": \"90\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T19:38:08.640103+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Miles v. St. Louis, Iron Mountain & Southern Railway Company.\", \"head_matter\": \"Miles v. St. Louis, Iron Mountain & Southern Railway Company.\\nOpinion delivered May 17, 1909.\\n1. Appjjai, \\u2014 rejection op witness \\u2014 EPPECT.\\u2014Where a witness is rejected on the ground of his incompetency, it will be unnecessary on appeal to show what he would have testified, as it will be presumed that the witness would have been rejected, no matter how material the evidence might have been. (Page 490.)\\n2. Witnesses \\u2014 husband and wipe. \\u2014 Kirby\\u2019s Digest, \\u00a7 3095, providing that husband and wife shall be incompetent to testify \\u201cfor or against each other,\\u201d does not debar a wife from testifying in behalf of her husband where he sues in a representative capacity as administrator of his child, even though he will be entitled, as distributee, to receive part of any fund recovered by him as administrator. (Page 491).\\n3. Infant \\u2014 contributory and imputed negligence. \\u2014 A child of tender years cannot be held guilty of contributory negligence, nor, in a suit \\u2022for the benefit of the child\\u2019s estate, will the negligence of a parent be imputed to the child. (Page 493.)\\n4. Carriers \\u2014 freight trains \\u2014 negligence.\\u2014Where a child was killed by being thrown from the platform of the caboose of a freight train and crushed under the wheels, and there was evidence tending to prove that the car was negligently jerked while passengers were entering the coach, it was error to instruct the jury that freight trains jerk more than passenger trains and that this jerking is not negligence. (Page 493-)\\n5. Same \\u2014 injury by train \\u2014 presumption.\\u2014Where there was proof that plaintiff\\u2019s intestate was killed by the moving of a train, it was error to' charge in effect that the burden was on plaintiff to prove negligence on defendant\\u2019s part; proof of the killing making a prima facie case of negligence against the railway company. (Page 493.)\\n\\u2022'6. Negligence \\u2014 burden of proof. \\u2014 Where contributory negligence is a defense, the burden is on the defendant pleading it. (Page 494.)\\n\\u2019Appeal from Hot Spring Circuit Court; William H. Evans, Judge;\\nreversed.\\nstatement by the court.\\nThis was a suit by Tom M. Miles, as administrator of the estate of Mary Ellen Miles, to recover for damages alleged to be due the estate on account of the alleged negligent killing of Mary Ellen Miles by the appellee. It is alleged; \\u201cThat the said Mary Ellen Miles was boarding said train as a passenger with her mother, and that she was lifted up on the platform of the caboose by her mother, and just after she was lifted up on the platform her mother turned around to pick up her grip, which she had set down so she could lift the said Mary Ellen Miles up on said platform, and before the said Mary Ellen Miles got in the caboose, and before her mother had time to get up on said platform the defendant company negligently and carelessly shoved said train backwards and caused the said Mary Ellen Miles to fall down on the track between said cars, and after she fell down on said track the defendant company negligently and carelessly pushed a car against and over her, causing her to re ceive injuries from which she suffered from ten o\\u2019clock a. m. on the 24th day of August, 1907, until about one o\\u2019clock p. m. the next day, when she died of such injuries. That the injuries were caused, by the failure of the defendant to keep a constant lookout while operating its train, and by the negligence and carelessness of the agents and servants of defendant in not handling the train properly, and in moving said train when it knew, or by the exercise of due care could have known, that Mary Ellen Miles was in a position of danger.\\u201d\\nDamages for the estate were laid in the sum of five thousand dollars, for which judgment was asked.\\nThe answer of appellant denied all the material allegations, except the killing, and set up contributory negligence on the part of the mother of Mary Ellen Miles. The evidence on behalf of appellant tended to show the following facts:\\nThat Elvira Miles was the wife of Tom M. Miles, and that they resided at Perla, Arkansas, and that on the 24th day of August, 1908, about ten o\\u2019clock a. m., Elvira Miles was at Smack-over, Arkansas, a regular station on the St. Louis, Iron Mountain & Southern Railway Company, with their child, Mary Ellen Miles, who was three and a half 'years of age, for the purpose of boarding the local freight train of the said St. Louis, Iron Mountain & Southern Railway Company as a passenger to go to Perla, Arkansas, and after said train came up to the station and stopped where passengers usually get on and off of said train, the said Elvira Miles started to board said train with her child, and she set her basket down and lifted the child up on the front platform of -the caboose, and then stooped down and picked up her basket and started to get on herself, and as she started to get on, and while she had hold of one of the handholds' with one hand and her foot on the bottom step of the platform, and before the child got inside of the caboose, the train shoved back with a sudden jerk, and threw the child down on the track between the cars, and caused it to be run over by the wheels of the car in front of the caboose, which crushed one leg and one thumb. That the child was taken from under the cars, and carried to a doctor\\u2019s office, where the leg was amputated and the thumb dressed, and after this was carried to a house near by, where it was kept until the next day about one o\\u2019clock p. M., at which time it died from the effects of the injuries received. That it was conscious all the time after it was injured except when it was under the influence of anesthetics, while it was being operated on. That the train was still when she started to get on, and as she was in the act of getting on one of the brakemen gave a signal to back up, and that the train did back in the manner stated and caused the injuries alleged.\\nThere was evidence tending to prove that all the passengers had not debarked, and one of them had started to- get off, but had not reached the door when the little girl fell. The appellant offered to- prove by Elvira Miles, the wife of Tom Miles, the plaintiff, that Mary Ellen Miles was injured and killed as alleged in the complaint, but the court refused to allow Elvira Miles to testify on the ground that she was not a competent witness.\\nThe appellee adduced evidence tending to prove that it was not negligent in operating its train on the occasion when Mary Ellen Miles was injured.\\nThe appellant asked several instructions. The court refused to grant all the prayers as asked, but modified some of them, and gave them in the modified form, over appellant\\u2019s objection. ' Other prayers for instructions by appellant were granted. The court, over the objection of appellant, refused the following prayer for instruction: \\u201c3. The court instructs the jury that a child of tender years cannot be guilty of negligence, nor can the negligence of the parent be imputed to the child, and that if you believe from the evidence that the agents and servants of the defendant company could have seen by the exercise of reasonable care and diligence that the said Mary Ellen Miles was in a position of danger at the time they backed said train, and that said agents and servants of the defendant failed to exercise reasonable care and diligence to see her position, it will be your duty to find for the plaintiff.\\u201d\\nThe court; over the objection of appellant, gave the following prayers for instructions presented by appellee:\\n\\u201c2. You are instructed that attempting to board a moving train or a freight train before it comes to an absolute stop is contributory negligence and bars a recovery, and if you find from the evidence in this case that the local freight train ran up to Smackover and made the usual stop, and that the deceased\\u2019s mother put her on the platform, and that the slack of the train caused her to fall under the Wheels and get injured and killed, your verdict must be for the defendant.\\n\\u201c3. You are instructed that freight trains, both in starting and stopping, necessarily jerk more than passenger trains, and you are further instructed that this jerking is not negligence, and if it caused the injury there is no liability, and you can not find against the company.\\n\\u201c4. If you find from the evidence in this ease that when the local train ran up to Smackover and the child\\u2019s mother, before there 'was any instructions for passengers to get aboard, set the little three-year-old child on the platform, and in doing so she failed to use ordinary care and caution, and the jerk of the train threw her down and injured and killed her, the defendant is not liable, and your verdict must be for the defendant.\\u201d\\n\\u201c6. If you find from the evidence in this case that the defendant\\u2019s .agents and servants did what men of ordinary care and prudence would have done, situated as they were, they were not guilty of negligence, although the child may have been injured as alleged in plaintiff\\u2019s complaint, and defendant company would not be liable because it can only be liable if the proof shows it was guilty of negligence.\\u201d\\nThe verdict was in favor of appellee. A motion for new trial, assigning as errors the various rulings to which exceptions were had, was overruled. Judgment was entered for appellee, which this appeal seeks to reverse.\\nJobes M. Smith, for appellant.\\nIf the administrator had recovered, the proceeds would still have had to pass through the regular course of administration under the jurisdiction of the probate court before he could have been determined to be a distributee. 47 Ark. 223; 38 Ark. 261. It was not within the jurisdiction of the circuit court to determine whether or not the father was a distributee of the estate. That was a question solely within the jurisdiction of the probate court. 47 Ark. 225; 38 Ark. 261; Kirby\\u2019s Dig. \\u00a7 \\u00a7 110 and 160. Contributory negligence is a matter of 'defense and must be pleaded. 77 Ark. 10. The question as to whether the mother was guilty of contributory negligence should have been left to the jury. 112 S. W. 222; 113 S. W. 200. When more than one inference can be fairly drawn from the facts as to the care or want of care of the plaintiff, the question of contributory negligence is for the jury, 67 Ark. 531; m S. W. 264; 46 Ark. 437. When a train is started while a passenger is attempting to alight, and he is injured, a prima facie case of negligence is made out against the company. Kirby's Dig. \\u00a7 6773; 83 Ark. 221; 113 S. W. 645; 81 Ark. 275; 73 'Ark. 552; 63 Ark. 636. Defendant must prove contributory negligence. 48 Ark. 475; 46 Ark. 436; Id. 193. The most important duty incumbent upon carriers is to provide for the safety of their .passengers. 55 Ark. 254; 60 Ark. 556; 82 Ark. 504. And this rule applies even though the passenger is on a freight train. 112 S. W. 222.\\nB. B. Kinsworthy, Lewis Rhoton, and Bridges, Wooldridge & Gantt, for appellee.\\nWhere the husband and wife are both interested in the result of a controversy, and the adverse party sues or defends in a representative capacity, the wife is incompetent as a witness for the husband if she would be incompetent in her own behalf. 132 111. 392. If the husband sues as next friend for the sole benefit of some other person, the wife is a competent witness. 59 Ark. 180. But here plaintiff and his wife are the real parties in interest. Contributory negligence of the parent may bd pleaded, even though he sues in a representative capacity. Thompson on Neg. \\u00a7 3077; Beach, Contributory Neg. \\u00a7 44; Tiffany, Death by Wrongful Act, \\u00a7 69; 92 Pa. St. 450; 37 Am. Rep. 705; 94 Mo. 600; 36 Ark. 41; 95 Tenn. 30; 28 L. R. A. 486; 49 Am. St 909; 138 111. 370; 21 L. R. A. 76; 55 O. St 530; 36 L. R. A. 812.\", \"word_count\": \"3593\", \"char_count\": \"20001\", \"text\": \"Wood, J.,\\n(after stating ifche facts). First. The court refused to allow the wife of the appellant to testify, on the express ground that she was not a competent witness. The question therefore as to whether her testimony, if allowed, would have been material and prejudicial is not presented. \\\"Where a witness is rejected on the ground of incompetency, it must be presumed that the witness would have been rejected, no matter how material the evidence might have been.\\\" Rickerstricker v. State, 31 Ark. 208. Moreover, if, as the record shows, her testimony would have tended to prove that Mary Ellen Miles was injured and killed in the manner alleged in the complaint, then the exclusion of it was highly prejudicial. For no one can divine what weight the jury might have given it. Her situation at the'time enabled her to have perhaps a more accurate and comprehensive knowledge of the facts than any other witness. No matter if the testimony of other witnesses tended to prove the same facts, her testimony no doubt would have greatly fortified that of her husband or any other witness, and the jury may have regarded it as more important than any other. It must be presumed that prejudice resulted in the exclusion of a witness who possessed such excellent opportunities for knowing the facts.\\nAt the common law, on the grounds both of identity of interest and public policy, the husband and wife were incompetent to testify for or against each other. 2 Kent's Com. \\u00a7 179; 1 Greenleaf, Ev. \\u00a7 334. But.since the adoption of the Constitution, which provides that \\\"no witness shall be excluded because he is a party to the suit or interested in the .issue to be tried\\\" (Const. 1874, schedule, \\u00a7 2), the statute which now renders the husband and wife incompetent to testify \\\"for or against each other, or concerning any communication made by the one to the other during marriage\\\" is not grounded upon any identity of pecuniary interest that the one may have in the result of a suit by the other. But the reason for the rule that now excludes them from testifying for or against each other is the \\\"anxious solicitude which the law discovers to preserve domestic tranquillity.\\\" In other words, it is the wise public policy of .conserving and promoting domestic peace and happiness, which has been embodied in the statute. Kirby's Digest, \\u00a7 3095; Collins v. Mack, 31 Ark. 684.\\nThis court ihas 'often held that the husband and wife were incompetent to testify for or'against each other in suits where the one or the other was a party in his or her own right, and not in some fiduciary or representative capacity. Phipps v. Martin, 33 Ark. 207; Little Rock & Ft. S. Ry. Co. v. Payne, 33 Ark. 816; Casey v. State, 37 Ark. 67; Miss. River, H. & W. R. Co. v. Ford, 71 Ark. 192; St. Louis, I. M. & S. Ry. v. Courtney, 77 Ark. 431; Mahoney v. Roberts, 86 Ark. 130; Taylor v. McClintock, 87 Ark. 243. To have held otherwise in those cases would have been contrary to the statute supra.\\nAnd, so long as identity of pecuniary interest was recognized as one of the basic principles for the rule of exclusion, it would necessarily operate in collateral suits where the husband or wife were not parties to the record, but directly interested in the outcome of the litigation. 1 Greenleaf, Ev. 341. See also Leach v. Fowler, 22 Ark. 143.\\nBut, since interest is not longer to be considered as the reason for the statutory rule, it should not be extended to compass cases that do not come strictly within its terms. As was said by the Supreme Court of Kansas concerning a statute similar to the provision of our Constitution supra: \\\"As our statute has opened wide the door to all persons to be witnesses without regard to their interest in the suit, except as affecting their credibility, we ought not to keep up the disqualification as to the wife being a witness on account of the interest of the husband unless the plain provision of the law forbids any other conclusion.\\\" Van Fleet v. Stout, 44 Kan. 526; Higbee v. McMillan, 18 Kan. 133. Since the old rule disqualifying because of pecuniary interest has passed away, the trend of decisions is to turn on all the light possible in the admission of evidence, leaving the question of credibility for the jury. Schouler's Dom. Rel. \\u00a7 53, pp. 53, 54; Rodgers, Dom. Rel. \\u00a7 290, p. 212 and cases cited. See Railway Co. v. Amos, 54 Ark. 159; Klenk v. Knoble, 37 Ark. 298; Board v. Moore's Adm'r, 66 S. W. 417; Mitchell v. Brady, 124 Ky. 411.\\nIn Nolen v. Harden, 43 Ark. 307, it is held (quoting syllabus) : \\\"The public policy which forbids a husband or wife from testifying for or against each other does not extend to collateral suits between third parties. In these a wife may testify as to transactions of her husband, where she can do so without breach of matrimonial confidence.\\\"\\nAnd in Railway Co. v. Rexroad, 59 Ark. 180, we said (quoting syllabus) : \\\"In an action by a husband as next friend for the sole benefit of an infant child, his wife is a competent witness, as he is merely the manager or conductor of the suit; and the fact that he is liable for costs does not disqualify her, under Mansfield's Digest, \\u00a7 2859, providing that husband and wife shall be incompetent to testify for or against each other.\\\"\\nSo here the husband is acting in his fiducial capacity. He is suing for the sole benefit of the estate. If he should recover, and should receive a part of the fund recovered as a distributee of his daughter's estate, still that would not make the present suit one in his own name and right.\\nWe are of the opinion that when the husband sues, not in his individual but representative capacity, the suit is not by and for him, and therefore the wife in such case is not a witness for him in the meaning of statute.\\nSecond. This being a suit by the administrator for the benfit of the estate, the court should have given appellant's prayer number three. St. Louis, I. M. & S. Ry. Co. v. Dawson, 68 Ark. 7; Air Line Ry. Co.v. Gravitt, 93 Ga. 369 at p. 383; Norfolk & W. Rd. Co. v. Groseclose, 88 Va. 267, s. c. Am. St. Rep. 718; Wymore v. Mahaska County, 78 Ia. 396, s. c. 6 L. R. A. 545, 16 Am. St. Rep. 449; Beach, Contributory Neg. \\u00a7 131a. As to whether appellant was entitled to a distributive share, should there be a recovery, was not presented in this case. The only issue under the pleadings was whether or not appellant should recover, not for his own benefit, but for the benefit of the estate. There is no count in the complaint seeking to recover for his own benefit as next of ki-n, as there was in the Dawson case supra.\\nThe court also erred in giving prayers numbered two and four.\\nInstruction number three at the instance of appellee virtually told the jury that the jerking of the train was not negligence, and that if such jerking caused the injury appellee was not liable. This was error. The question should have been submitted to the jury to determine whether the jerking of the train under the cir-stances was negligence.\\nInstruction number six at the request of appellee placed the burden upon the appellant to prove that appellee was guilty of negligence. At least the instruction was fairly susceptible of that meaning, and was therefore misleading and prejudicial. Appellant 'having shown that his intestate was injured by the operation of the train while she was attempting to board same as a passenger, a prima facie case of negligence against the company was thereby established, and it then devolved upon appellee to prove that it was not negligent. St. Louis, I. M. & S. Ry. Co. v. Standifer, 81 Ark. 275; Barringer v. St. Louis, I. M. & S. Ry. Co., 73 Ark. 552; St. Louis, I. M. & S. Ry. Co. v. Neely, 63 Ark. 636.\\nThe court erred in modifying appellant's prayers for instructions numbered one and two. The modification allowed the defense of contributory negligence on the part of the mother of the child, and placed the burden on appellant to prove that the mother was free from contributory negligence. Even if contributory negligence were a defense in such cases, the burden would be upon the one pleading it to prove it. Little Rock & Ft. S. R. Co. v. Eubanks, 48 Ark. 475.\\nWe find no other reversible errors in the record. Eor those indicated the judgment is reversed, and the cause is remanded for new trial.\"}"
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+"{\"id\": \"1537507\", \"name\": \"Maloney v. Maryland Casualty Company\", \"name_abbreviation\": \"Maloney v. Maryland Casualty Co.\", \"decision_date\": \"1914-05-18\", \"docket_number\": \"\", \"first_page\": \"174\", \"last_page\": \"185\", \"citations\": \"113 Ark. 174\", \"volume\": \"113\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T17:45:14.819197+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Maloney v. Maryland Casualty Company.\", \"head_matter\": \"Maloney v. Maryland Casualty Company.\\nOpinion delivered May 18, 1914.\\n1. Insurance \\u2014 contract\\u2014construction.\\u2014The contract in a policy of insurance is always to he construed most strongly against the insurance company, because it prepares the contract of insurance. (Page 181.)\\n2. Insurance \\u2014 accident insurance \\u2014 notice.\\u2014Although an accident insurance policy provides that notice of an injury must be given the company as soon as reasonably can be done after an accident, the beneficiary in the policy will not be barred from recovery, when the deceased did not give notice of the injury, although he lived some time after receiving the same, and where the beneficiary did give notice within two weeks after deceased\\u2019s death, which was as soon as she discovered that deceased had such a policy. (Page 181.)\\n8. Insurance \\u2014 accident insurance \\u2014 death\\u2014proximate cause. \\u2014 In an action on an accident insurance policy, it is error to charge the jury that deceased must have come to his death only as the result of the injury, and that there can be no recovery unless the accident was ithe exclusive 'and independent cause of his death. (Page 183.)\\n4. Accident insurance \\u2014 \\u201caccidental\\u201d death. \\u2014 If an injury occurs without the agency of the insured, it will be held to be \\u201caccidental,\\u201d even though it may be brought about designedly by another porson. (Page 183.)\\n5. Insurance \\u2014 warranty by insured. \\u2014 Where in an application for accident insurance tfcie applicant stated \\u201cmy habits of life are correct and temperate. I am neither partially or wholly blind, * * * no exceptions,\\u201d the same will not be construed as a warranty by the applicant. (Page 184.)\\n6. Insurance \\u2014 application\\u2014knowledge oe agent \\u2014 estoppel.\\u2014Where an application for accident insurance was written up by the agent of the insurance company, and the answers were written by the \\u25a0 agent without consulting the assured, the company is chargeable with the knowledge of its own agent, and is estopped from denying that which its own agent has asserted to be true. (Page 184.)\\n7. Evidence \\u2014 attending physician \\u2014 duty to object. \\u2014 Although the testimony of an attending physician is incompetent, its introduction must be objected to, and in the absence of an objection, its admission is not \\u00a1prejudicial. (Page 184.)\\nAppeal from Drew Circuit Court; James R. Gotham, Special Judge;\\nreversed.\\nSTATEMENT BY THE COURT.\\nMrs. Jennie Maloney instituted this action against the Maryland Casualty Company to recover upon a policy of accident insurance in which she was named as the beneficiary. The facts are as follows:\\nThe policy was issued to Edward S. Maloney, the husband of Jennie Maloney, on the 12th day of January, 1912, for a period of three months. Before the policy expired, it was renewed for an additional period of three months. The policy insured Edward S. Maloney against bodily injuries, effected independently and exclusively of all other causes, through external, violent and accidental means. The policy also contained the following clause:\\n\\u201cSubject to its terms, limits and conditions, this policy covers the assured in the event of death or disability due to freezing, hydrophobia, gas or poison (suicide, sane or insane, or any attempt thereat, not included); likewise in event of death or disability from septicemia or blood poisoning due directly to a bodily injury sustained while this policy is in force.\\u201d\\n'Section 11 of the policy under the title of \\u201cAgreements, \\u2019 \\u2019\\u2022 reads as follows, towit:\\n\\u201c11. Written notice must be given to the company at Baltimore, 'Maryland, or to the agent countersigning this policy, as soon as may be reasonably possible, of any injury for which a claim is to be made, with full particulars and full name and address of the assured or beneficiary as the case may be. Affirmative proof of death, or loss of limb, or sight, or duration of disability must be furnished to the company within two months from the time of death, or loss of limb or sight, or duration of disability for which the company is liable. No suit for recovery hereunder may be brought until after three months from the date of filing final proofs at the company\\u2019s home office, nor brought at all unless the same shall be instituted within one year from the time of death, or loss of limb, or sight, or termination of disability for which the company is liable. Claims not brought in accordance with these requirements will be forfeited to the company. \\u2019 \\u2019\\nE. S. Maloney resided at Monticello, Arkansas, and in April, 1912, he was at Russellville., While there he was stricken with acute inflammatory rheumatism, and for a period of three weeks from April 23, 1912, he was confined to his bed there, and was then removed to a hospital at Hot Springs, Arkansas. He was a very large man, and (lay on his back nearly all of the time. About a week and a half before his removal, his nurse, while attempting to . place a bed-pan under him, let it slip and strike him. He cried out at the time that he was hurt. The bed-pan struck him at the lower end of his backbone. He was removed from the hospital at Hot Springs to his home at Monticello, and was treated by a physician there some fifteen or twenty days before his death. His death occurred on the 15th day of July, 1912. The physician who treated him just prior to his death testified that he died from blood poison, and that the blood poison ^originated from a sore on the lower part of his spine right at the upper end of the coccyx bone; that the sore extended higher up the longer he lived, and that the end of the coccyx bone seemed to be the center of the sore; that the coccyx bone is the bone next to the spinal column. In short, the physician testified that he died from blood poison, which resulted from the abrasion caused by the sharp end of the bed-pan striking his coccyx bone.\\nThe plaintiff did not know of the existence of the policy sued on until about two weeks after her husband\\u2019s death. As soon as she learned of its existence, she notified the company of her husband\\u2019s death, and, within the time prescribed in the policy, made proof of his death and sent it to the company.\\nEvidence was adduced in behalf of the defendant tending to show that there was no abrasion whatever on the insured\\u2019s back as a result of the bed-pan striking him; that the sore described by the physician who treated him just prior to his death was a bed sore, which was caused by the insured lying on his back so long. In short, the testimony of the defendant was to the effect that the blood poisoning which caused Maloney\\u2019s death did not result from, the bed-pan striking him, as stated by the witnesses for plaintiff. Other testimony will be referred to in the opinion. The jury returned a verdict for the defendant, and the plaintiff has appealed.\\nJames G. Knox and Patrick Henry, for appellant.\\n1. Under the holding of this court in the Meyer case, 106 Aik. 91, appellee would be liable, notwithstanding the deceased was afflicted with a disease, if the death resulted when it did on account of the aggravation of the disease from accidental injury.\\nThe trial court\\u2019s theory of the law as expressed in the instructions given is in direct conflict with the opinion in that case.\\n2. As to the burden of proof, it was only incumbent on appellant to prove that the injury was the result of external, violent and accidental means, and when that was done the harden shifted to the appellee to show that the insured in fact died from other canses. 73 S. W. 592. *\\n3. The provisions in the policy as to notice, contemplated two kinds of notices, one where the injury is other than those named in the last sentence, and the other those mentioned in the last paragraph thereof. 85 Fed. 401; 27 S. W. 436.\\nWant of notice is purely a matter of defense, to be specially pleaded, and the burden is on the defendant to show a forfeiture on that ground. 53 Pac. 242; 13 N. E. 604; 13 Gray 431; 71 Pac. 423; 16 N. Y. Supp. 27. Even if the burden was on appellant to establish the |act of having given the notice, there is no dispute in the evidence, and where the evidence as to the time notice was given is not disputed, it is for the court, and not for the jury, to say whether it was given in a reasonable time. 27 S. W. 436; 8 Gray, 33; 24 N. E. 1041; 17 N. Y. 609; 12 N. E. 315.\\n4. The fourth instruction is erroneous. There was no burden on appellant to show that disease was not an indirect cause of the death, but it was incumbent on appellee to show a substantial proximate connection between the disease and the death. 73 S. W. 592.\\n5. Instruction 7 was patent error. An injury resulting from a cause not the design of Maloney himself was accidental within the meaning of the policy. 17 So. 2; 91 N. W. 135; 60 S. W. 492; 16 S. W. 723; 40 S. W. 1080; 26 Pac. 762; 8 S. W. 570; 28 S. W. 877; 61 N. W. 485; 36 S. W. 169; 68 Fed. 825.\\n6. The court erred in the ninth instruction, charging the jury that deceased warranted his habits of life to be correct and temperate, and directing the jury to find for the defendant if the evidence showed that his habits were not temperate. The words \\u201cno exceptions\\u201d appearing at the conclusion of the warranty clause qualify only the last sentence, and can not be construed to qualify the first sentence in any way.\\nThe application being on a printed form furnished by the company, its language will be construed most strongly against the company. 1 Cyc. 245; 65 Ark. 59; 38 Fed. 19; 60 Atl. 180; 115 N. W. 869.\\nMoreover, the company\\u2019s agent, as he testified, drew up the application for Maloney himself, and the company is estopped from setting up this defense. 41 S. W. 1093, 64 Ark. 253; 13 S. W. 799, 53 Ark. 215; 40 N. W. 469; 69 N. Y. 128;- 79 S. W. 733; Id. 119; 85 S. W. 103;. 13 Wall. 222; 36 N. Y. 550; 42 N. Y. S. 52.\\nWilliamson & Williamson, for appellee.\\nSince the evidence conclusively showed that no notice of the injury was ever given, or opportunity afforded to investigate, and that no notice was given of \\u25a0 any kind until after Maloney\\u2019s death, and. since the policy stipulated that noncompliance with the requirements as to notice would forfeit the policy, appellee was, as a matter of law, entitled to a' directed verdict. Hence, the judgment should be affirmed, regardless of whether or not errors occurred in the trial. 4 Cooley\\u2019s Bfiefs on Law of Insurance, 3570; 1 Cyc. et seq.; Id. 276, 277, cases there cited.\\nThe notice of accident, as provided by the terms of the policy, is a condition precedent to recovery. 197 Mass. 101, 14 Am. & Eng. Ann. Cas. 209, and authorities collated in note at page 292; 71 Ark. 126; 87 Ark. 171.\\nIn this case the stipulation for forfeiture is in the contract, which brings it within the rule laid down in Hope Spoke Company v. Maryland Casualty Company, 102 Ark. 11, which is in accord with general authority. 176 Mo. 253, 75 S. W. 1102; 88 S. W. 127; 83 Pac. 1015; 4 Cooley\\u2019s Briefs, 3457.\\nThere can be no force in the contention that in the event of the death of the insured no notice need be given. 142 Fed. 653-659.\", \"word_count\": \"3879\", \"char_count\": \"21966\", \"text\": \"Hart, J.,\\n(after stating the facts). Counsel for defendant contend that the judgment must be affirmed, regardless of the fact of whether the court committed error in instructing the jury. They base their contention upon the ground that the notice of accident, as provided by the terms of the policy, is a condition precedent to recover, and that notice was not given within a reasonable time after the accident happened; but we can not agree with them in this contention. It is true the accident happened on the 23d day of April, 1912, and that the insured remained conscious until the date of his death, on July 15, 1912, and that no notice was given until the 31st day of July.\\nIn the case of Western Commercial Travelers Assn. v. Smith, 85 Fed. 401, the policy provided that \\\"in case of any accident or injury for which claim is to be made under this certificate, or, in case of death resulting there-fr.om, immediate notice shall be given in writing, with full particulars of the accident, and that failure to give such notice would invalidate the claim. The court held that two classes of notices were intended, one an immediate notice of accident or injury when not resulting in death, and the other an immediate notice of death resulting from such injury, the latter to be given by the beneficiary,' and that a notice so given in the latter case was sufficient, though no notice of the injury was given before death. See also McFarland v. U. S. Mutual Accident Assn., 27 S. W. (Mo.) 436.\\nCouns\\u00f3l for defendant contend that the above cited cases are not in accord with reason and authority; and in support of their position they cite the case of the Travelers Insurance Co. v. Nax, 142 Fed. 653, where the Circuit Court of Appeals of the Third Circuit held:\\n\\\"Where an accident insurance policy providing for the payment of a weekly indemnity to the insured in case of an accidental injury, and the payment of the amount of the policy to a named beneficiary in case of his death from such an injury, made it an express condition that 'immediate written notice' should be given to the company 'of any accident and injury for which claim is made,' such proviso required notice to be given within a reasonable time; and where the insured lived for seventy-two days after an accidental injury, during which time he was in full possession of his faculties, his failure to give any notice of the accident before his death, without any excuse therefor appearing, as a matter of law defeated any right the beneficiary would otherwise have had to recover .on the policy for his death, which was dependent on such notice as fully as the right of the insured to recover benefits in his lifetime.\\\"\\nAn attempt is made by the court in that case to distinguish it from the policy in the case of the Western Commercial Travelers Assn. v. Smith, supra. But we do not agree with the reasoning of the court in the Nax case. Forfeitures are not favored in the law; and this principle is peculiarly applicable to policies of insurance, where the contract is always to be construed most strongly against the insurance company because it prepares the contract of insurance. This principle is too well settled in this State to require a citation of authority to support it. It is a cardinal canon of construction of contracts that the court should\\\" put itself in the place of the parties to the. agreement and then consider how. its terms affect its subject-matter, iand thereby ascertain the intent of the parties. Under the policy sued on in this case, the beneficiary had no claim until the death of the assured. Therefore, there must be no good reason to require her to give notice of the accident or injury before death occurred and before her claim arose. She could not know whether she had a claim until after her husband's death; and she was not required to give notice of the accident on account of which h\\u00e9r claim arose before she knew whether or not it would come into existence. Moreover, the plaintiff did not know that her.husband had the policy sued on until after she found it among his papers, about two weeks after his death; and she at once then gave notice to the company of her claim under the policy. The policy required that notice must be given as soon as may be reasonably possible of any injury for which a claim is to be made. The undisputed evidence shows that the plaintiff did this a soon as she learned of the existence of the policy after her husband's death.\\nIn the case of Cady v. Fidelity & Casualty Company of New York, 17 L. R. A. (N. S.) 260, the Supreme Court of Wisconsin; in discussing this precise question, said that service of notice by a beneficiary as soon as practicable after obtaining knowledge of the existence of the policy is sufficient. Several well considered cases are cited which support the principle there announced.\\nCounsel for plaintiff also assign as error the action of the court in giving instruction No. 4 at the request of the defendant; and in this contention we think they are correct. The instruction reads as follows:\\n\\\"The court instructs the jury that if they find from the evidence that the deceased, Edward S. Maloney, came to his death as the direct or indirect consequence of disease or that his death was caused wholly or in part by bodily infirmities or diseased condition of the body and that the alleged accident or injury was not the exclusive and independent cause of his death, then your verdict will be for defendant.\\\"\\nIn the case of Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, the court held:\\n\\\"When an accident insurance policy limits liability to 'bodily injuries sustained through accidental means resulting directly, independently and exclusively of all other causes of death,' and it appears that death resulted from an aggravation of a latent disease to which the deceased was subject, an instruction is correct to the effect that the defendant insurance company is liable, under the contract, if death resulted when it did on account of the aggravation of the disease from the accidental injury, even though death from the disease might have resulted at a later period, regardless of the injury.\\\"\\nIn the case of French v. Fidelity & Casualty Company of New York, 17 L. R. A. (N. S.) 1011, the Supreme Court of Wisconsin held that death from blood poisoning following a slight accidental abrasion of the skin is within an accident insurance policy against bodily inju ries sustained through external, violent and accidental means, independently of all other causes.\\nHere the proof on the part of the plaintiff shows that the insured received an accidental injury to the coccyx hone by his nurse striking it while he was attempting to place a bed-pan under him; that an infection later on started at the place where the bed-pan struck him, and that he died thereafter from blood poisoning. From this testimony the jury might have found that, but for the \\u2022accidental injury, there would have been no cause for infection, and that there might have been an abrasion of the skin through which the disease germs entered the insured's body and subsequently produced his death. If the jury found such a state of facts, the wound produced by the accident was the proximate cause of his death.\\nIn addition to the above cases 'already cited, see Cary v. Preferred Accident Insurance Company, 5 L. R. A. (N. S.), (Wis.) 926, and case note.\\nThe court, at the request of the defendant, gave instruction No. 8, which is as follows:\\n\\\"The court instructs the jury that if Maloney's death was not the result of the 'alleged accident alone, but was due to both the accident and a disease of which he was suffering, then there is no liability on the part of defendant and your verdict will be for defendant.\\\"\\nThis instruction is erroneous for the reason assigned in discussing instruction No. 4.\\nWe also think the court erred in giving instruction No. 7 at the request of the defendant. The instruction is as follows:\\n\\\"If the jury find from the evidence that the injury to Maloney was the result or effect which was the natural and probable consequence of an act or course of action intended by those waiting upon Maloney, then this can hot be said to be produced by accidental means, and your verdict will be for the defendant.\\\"\\nIf an injury occurs without the agency of the insured, it may be logically termed \\\"accidental,\\\" even though it may be brought about designedly by another person. 2 Bacon on Benefit Societies and Life. Insurance (3 ed.) ' \\u00a7 482.\\nThe court also erred in giving instruction No. 9. It is as follows:\\n\\\"The court instructs the jury that as part of the contract sued on, Edward S. Maloney, the assured, warranted that his habits of life were correct and temperate, and if the jury find from the evidence that said Edward S. Maloney's habits of life were not temperate.as stated in the policy, then your verdict will be for the defendant. \\\"\\nThe alleged warranty, the breach of which is here complained of by the defendant, is as follows:\\n\\\"My habits of life are correct and temperate. I am neither partially or wholly blind, deaf, crippled, lame, paralyzed, nor have I ever been subject to epilepsy, fits, vertigo, or sleep walking, and in all regards I am in sound condition mentally and physically, except as follows: No exceptions.\\\"\\nIn the application of the rule that the policy must be construed as favorably as possible to the insured because it was written by the insurance company, we think \\\"that the words \\\"no exceptions\\\" refer to the sentence immediately preceding it. The first sentence of the section, towit, \\\"My habits of life are correct and temperate,\\\" can hot be construed as a warranty.\\nMoreover, the undisputed testimony shows that the application was written up by the agent of the insurance company, and that the answers were written by him without consulting the assured. Therefore, the company is chargeable with the knowledge of its own agent, and is also estopped from denying that which its own agent has asserted to be true. See Peebles v. Eminent Household of Columbian Woodmen, 164 S. W. 296, 111 Ark. 435.\\nIt is also contended by counsel for plaintiff that the court erred in admitting the testimony of the attending physicians of the insured. The testimony was not competent if it had been objected to. Mutual Life Insurance Company of New York v. Owen, 111 Ark. 554, 164 S. W. 720. The record shows, however, that no objection was made to the admissibility of this testimony; and in the absence of objection being made the testimony was competent.\\nError is also assigned in the giving of other instructions ; but we do not deem it necessary to set out the instructions complained of or to discuss them in detail. We think the principles of law applicable to a retrial of the case are sufficiently discussed already, and for the errors indicated in the opinion the judgment must be reversed and the cause remanded for a new trial.\"}"
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+"{\"id\": \"1540441\", \"name\": \"Cotham v. Coffman\", \"name_abbreviation\": \"Cotham v. Coffman\", \"decision_date\": \"1914-01-19\", \"docket_number\": \"\", \"first_page\": \"108\", \"last_page\": \"123\", \"citations\": \"111 Ark. 108\", \"volume\": \"111\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T18:09:09.135506+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Cotham v. Coffman.\", \"head_matter\": \"Cotham v. Coffman.\\nOpinion delivered January 19, 1914.\\n1. Circuit judges \\u2014 limit oe salary. \\u2014 A circuit judge is an officer o\\u00ed the State, and as such his compensation is provided for and limited hy art. 19, \\u00a7 11, of the State Constitution. (Page 111.)\\n2. Circuit judges \\u2014 salary\\u2014must be raid by state. \\u2014 Art. 19, \\u00a7 11, of the Const, of 1874, which provides for the salaries of circuit judges, limits the payment of judicial salaries to the revenue of the State. (Page 113.)\\n3. Circuit judges \\u2014 payment of salary by state \\u2014 constitutional limitation. \\u2014 The Act of March 23, 1911, p. 78, Public Acts 1911,. creating the eighteenth circuit, is invalid under art. 19, \\u00a7 11, of the Const, of 1874, insofar as it imposes the payment of two-thirds of the salary upon one county composing the circuit, and wholly exempting the other county in the circuit from any part of the burden. (Page 118.)\\n4. Constitutional law \\u2014 effect of invalidity of one portion of a statute. \\u2014 Where a part of a statute is unconstitutional, the courts will not declare the remainder void, unless all the provisions are connected in the subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it can not be presumed the Legislature would have passed the one without the other. (Page 119.)\\n5. Circuit judges \\u2014 salary\\u2014validity of act. \\u2014 Act No. 114, p. 78, Public Acts, 1911, held valid; except the provision as to the payment of salary. (Page 119.)\\nAppeal from Pulaski Circuit Court; Guy Fulk, Judge;\\nreversed.\\nMarvm Harris and E. L. Garter, for appellant.\\n1. Mandamus will lie to compel an auditor to draw a warrant for an officer\\u2019s salary. 5 Ark. 436; 26 Ark. 237; 26 Cyc. 235, and cases cited.\\n2. The judge of a circuit court is a State officer. Const. 1874, art. 7, \\u00a7 13; art. 19, \\u00a7 11; art. 7, \\u00a7 22; 21 So. 293; 36 Cyc. 852, 853; 23 Cyc. 506; 11 Cyc. 415.\\nThe proviso to section 4 of the act of 1911, Castle\\u2019s Supplement to Kirby\\u2019s Digest, 105, 106, placing upon Garland County the burden of paying two-thirds of salaries of the judge and prosecuting attorney is unconstitutional and void, and should be rejected as surplusage. .Const. 1874, art. 16, \\u00a7 \\u00a7 5-11; 1 Cooley on Taxation, \\u00a7 225; Id. 228, note.\\nNot only is it violative of the constitutional requirements as to uniformity and equality in taxation, over the State, but also, as between the two counties composing the district, it violates the rule of apportionment in taxation, in placing this burden upon Garland County alone, \\u25a0while Montgomery County, though receiving the same benefits, is exempted from any portion of the burden. 1 Cooley on Taxation, \\u00a7 229; 37 Cyc. 750, and cases cited in note. See, also, 57 Ark. 554; 45 Am. Dig. (Century Ed.), tit. \\u201cTaxation,\\u201d \\u00a7 97 et seq.\\n3. The county court is without jurisdiction, and the proviso to the act can confer none, to make an appropriation for the payment of these salaries.- Const. 1874, art. 7, \\u00a7 28; Id., art. 16, \\u00a7 11; 55 Ark. 124; 11 Cyc. 575-578.\\n4. Without this proviso, the act constitutes a complete and harmonious whole, not in conflict with the Constitution, and can, and should be, allowed to stand. The proviso should be declared void. 37 Ark. 356; 48 Ark. 370; 53 Ark. 490; 46 Ark. 312; 64 Ark. 555; 63 Ark. 576; 51 Ark. 177; 56 Ark. 495; 58 Ark. 438; 8 Cyc. 802, and cases cited; Id. 804.\\nNo brief filed for the appellee.\", \"word_count\": \"5394\", \"char_count\": \"31242\", \"text\": \"Smith, J.\\nThis is an appeal from a judgment sustaining a demurrer to the complaint filed by appellant praying that a writ of mandamus be ordered, directed to respondent, as Auditor of State of the State of Arkansas, requiring him to issue to appellant an Auditor 's warrant in the sum of $250 for his salary as circuit judge of the Eighteenth Judicial Circuit for the month ending October 31, 1913. The complaint alleged that pursuant to an act of the General Assembly approved March 23, 1911, creating the Eighteenth Judicial Circuit of Arkansas, appellant had been elected as the judge of said circuit, which was composed of Garland and Montgomery counties, and that having been commissioned and qualified, he had entered upon, and was engaged in the discharge of the duties of that office, and that appellee was the duly acting Auditor of the State of Arkansas, whose duty it was to issue to appellant, and all other circuit judges, at the end of each month, his warrant on the State Treasurer for the sum of two hundred and fifty dollars, as the salary of all circuit judges was payable monthly and amounted to three thousand dollars per year for each judge. It was further alleged that petitioner had not received any salary for his services as circuit judge for the month of October, either from the State of Arkansas, or from Garland County, and that demand had been made for the warrant in the sum of two hundred and fifty dollars, but had been refused.\\nThe court below sustained the demurrer, and appellant declined to plead further, but elected to stand on hi3 complaint, and judgment was rendered on said demurrer, dismissing the complaint, and appellant has prosecuted this appeal.\\nSection 4 of the act creating the Eighteenth Judicial Circuit reads as follows:\\n' ' Section 4. That the judge and prosecuting attorney for the Eighteenth Judicial Circuit shall receive the same salary and fees provided by law for circuit judges and prosecuting attorneys throughout the State of Arkansas. Provided, two-thirds of the salaries of the judge and prosecuting attorney of the Eighteenth Judicial Circuit shall be paid by Garland County, by order of the county court, and one-third of the salaries of such offices shall be paid in the same manner as the salaries of other circuit judges and prosecuting attorneys throughout the State of Arkansas are paid.\\\"\\nThe circuit judge is a State officer. Griffin v. Rhoton, 85 Ark. 89. And as such his compensation is provided for and limited by section 11, article 19, of the Constitution of the State, which reads as follows:\\n\\\"Section 11. The Governor, Secretary of State, Auditor, Treasurer, Attorney General, judges of the Supreme Court, judges of the circuit court, Commissioner of State Lands and prosecuting attorneys shall each receive a salary, to be established by law which shall not be increased or diminished during their respective terms, nor shall any of them, except the prosecuting attorneys after the adoption of this Constitution, receive to his own use any fees, costs, perquisites of office or other compensation; and all fees that may hereafter be payable by law for any service performed by any officer men tioned in this section, except prosecuting attorneys, shall be paid in advance into the State treasury. Provided, that the salaries of the respective officers herein mentioned shall never exceed per annum:\\n\\\"For Governor, the sum of $4,000; for Secretary of State, the sum of $2,500; for Treasurer, the sum of $3,-000; for Auditor, the sum of $3,000; fo? Attorney General, the sum of $2,500; for Commissioner of State Lands, the sum of $2,500; for Judges of the Supreme Court, each, the sum of $4,000; for judges of the circuit courts and chancellors, each, the sum of $3,000; for prosecuting attorney, the sum of $400.\\\"\\nThe section of the act creating the Eighteenth Judicial Circuit which provides for the compensation of the judge has been set out in full, and it is seen that the proviso recites that Garland County shall pay two-thirds of the salary and the State the remaining third. It will not be necessary for us to here decide whether the Legislature can discriminate in fixing the salaries of circuit judges, because no discrimination in the amount of the salary against the judge of that circuit is made, for the act expressly provides that he shall be paid the same salary provided by law for the circuit judges throughout the State. The distinction, or discrimination, if any exists, consists in the manner of paying the salary. Can the Legislature impose upon Garland County the burden of paying this salary? Section 5 of article 16 of the Constitution provides that \\\"All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State.\\\" Section 28 of article 7 provides that \\\"The county courts shall have exclusive original jurisdiction in all matters relating to county taxes,-roads, bridges, ferries, paupers, bastardy, vagrants, the apprenticeship of minors, the disbursement of money for county purposes, and in every other case, that may be necessary to the internal improvement and local concerns of the respective counties .\\\" Section 30 of the same article provides: \\\"The justices of the peace of each county shall sit with and assist the county judge in levying the county taxes, and in making appropriations for the expenses of the county in the manner to be prescribed by law; and the county judge, together with a majority of said justices, shall constitute a quorum for such purposes; and in the absence of the county judge a majority of the justices of the peace may constitute the court who shall elect one of their number to preside. \\\"\\nThe quorum court, at its annual meeting, makes the appropriations for the expenses of the county, and the order in which, and the purposes for which, these appropriations may be made is provided by section 1499, Kirby's Digest. And section 1500 of Kirby's Digest provides that the total amount of these appropriations for the various purposes shall not exceed 90 per cent of the taxes levied for that year. May this levying or quorum court for Garland County make an appropriation to pay in part the salary of the judge of the circuit of which, it is a part? We think this can not be done, if this salary is a part of the expense of administration of the State Government.\\nA similar question arose in the case of the County of Shelby v. The Six Judges, reported in 3 Shannon's Tennessee Cases, page 508. That was a case which was well considered, and in which Justice McFarland delivered the opinion of the court, and in which Justice Freeman delivered a concurring opinion, and Chief Justice Nicholson delivered a dissenting opinion. The questions there decided were again raised in the case of Colbert v. Bond and Glisson v. Calloway, reported in 110 Tenn. 370, 75 S. W. 1061, and were again fully considered, and in the opinion there delivered by Justice Shields, the court unanimously reaffirmed the opinion of the majority of the court in the case of The Six Judges. The facts in that case were that an act was passed providing for the payment of the salaries of the judges and chancellors of the several courts of Shelby County, and this act provided \\\"that the salaries of the judges and chancellors of the several courts established by this act shall be the same as for circuit judges and chancellors, as established by law, each to be paid by the State as other judges and chancellors are paid, provided that the county court of Shelby County may appropriate a sum sufficient to increase salaries of said judges and chancellors not 'exceeding two thousand dollars each, additional thereto.\\\" In passing upon the validity of that act of the Legislature, among other things, it was there said, \\\"Is -the eleventh section of the act of 1869, in regard to allowing the county court to appropriate a sum not exceeding two thousand dollars to increase the salaries in violation of the Constitution? Did the Legislature have authority to delegate to the county court the power to increase the salaries of the judges, and to levy a tax to pay the appropriation? We think not. By the provisions of the Constitution, judges are to receive compensation for their services to be ascertained by law. Art. 6, \\u00a7 7. The law ascertaining this compensation must be enacted by the Legislature, the only law-making power. This lawmaking power can not be delegated to any other body. We are of the opinion that the county court had no power to levy a tax to pay the sums appropriated. The power of taxation is the legislative power, and this, by the Constitution,, is vested in the General Assembly. They can delegate this power only to the extent authorized by the twenty-ninth section of article 2. This is, the Legislature shall have power to authorize the several counties and incorporated towns to impose taxes for county and corporation purposes in such manner as shall be prescribed by law. \\\"\\n\\\"We are of opinion that the courts must determine whether or not the purpose for which the county may be directed by the Legislature to levy a tax is a county purpose, and if it be not a county purpose, the law to that extent must be declared void. If we hold that the Legislature are the exclusive judges of whether or not the purpose be a county purpose, this restriction of the Constitution might as well have been omitted, and the power given to the Legislature to authorize the counties to impose taxes without limit. It is the province of the court to decide when the legislative department has violated constitutional restrictions.\\\"\\n\\\"We will not undertake to define a county purpose, further than to say we think this is not. Judges are officers of the State whose salaries are fixed by law, and paid out of the State treasury. We do not think the judges of Shelby County are any exception. It is no doubt true that the people of Shelby County derive more direct benefit from the services of these judges than the people of the State at large, but this is also to some extent true in regard to the other judges of the State with respect to the counties in which they hold court. It is to our minds clear that the 'county purpose' referred to in the Constitution means some purpose peculiarly within the province, as distinguished from those general purposes left to the State at large \\u2014 such, for instance, as for building bridges, courthouses, jails, taking care of the poor, making public roads, etc. \\\"\\n\\\"It is true some of these county purposes, such as building courthouses and jails inures equally to the benefit of the State, but it is well understood that these things are provided for by the county. We think that the purpose can not, in the sense of the Constitution, be both a State and county purpose. It must be one or the other. It is either the province of the State or county to pay the salary of the judges, but not the business of both. If the county of Shelby pays her own judges, the other counties ought to do the same, but to require that county to pay the salaries, or any part of the salaries (of the judges) holding her courts, and at the same time compel the people of that county to bear their part of the paying all the other judges of the State, as would be, the result would be unjust. It may be said that the county consents, but this is not so unless the county court has the power to bind the people by its action in this regard, which we think it had not.\\\"\\nWe have quoted thus extensively from this opinion, because its reasoning applies to the case under consideration. A strong concurring opinion in the Tennessee case was written by Justice Freeman, in which he supported the majority view that Shelby County could not be required or permitted to pay any part of the salaries of the judges of the circuit court sitting in.that county, and among other things, he said: \\\"In view of 'these principles, we think it clear that a judge of court established under the Constitution of the State as a repository or part of its judicial power, required by the Constitution to leave a fixed salary to be ascertained by law, can never be held to be a county officer in any constitutional sense, nor his salary a charge upon the county treasury, as a county purpose, for which the particular locality can be taxed by its county court. These judges are State judges, and as such, their salary must be paid by the State, and not by the county, whose judges they are not. The judiciary of the State is one of the departments of the State Government, organized for the whole State, provided for in the Constitution, and a salary required to be ascertained and fixed by law, and therefore is not a local institution, but a State institution, for which the State must provide. It makes no part of the peculiar organization of a county, and is not one of the interests confided to the management and control of the county, for which the county court is authorized to provide. Therefore, its support can not be charged on the county, but is a burden on the State alone. ' '\\nThese Tennessee cases were cited and approved by the Supreme Court of Georgia in the case of Clark County Treasurer v. Hammond, 68 S. E. 600. In that case the facts were that the Legislature of that State had passed an act fixing the salary of judges of the superior courts in the judicial circuits having therein a city with a population of not less than 34,000 inhabitants, according to the last census, and providing that in all such circuits the judges should have a certain additional compensation to be paid by the county having such population. The Constitution of that State contained the following provisions in regard to certain salaries: \\\"The judges of the Supreme Court shall have out of the treasury of the State a salary not to exceed $3,000 per annum; the judge of the superior court shall have a salary not to exceed $2,000 per annum; the Attorney General shall have a salary not to exceed $2,000 per annum, and the solicitor generals, each, shall have a salary not to exceed $250 per amium; but the Attorney General shall not have any fee or perquisite in any case arising after the adoption of this Constitution; but the provisions of this section shall not affect the salaries of those now in office.\\\"\\nIt was contended in this Georgia case that the limitation that the salaries named should be paid out of the treasury of the State, referred only to the Supreme Court judges, and such is the letter of that Constitution. But the court reviewed the legislation of that State on the subject of judicial salaries, and, applying the maxim noscitur a sociis, held that the limitation that the salaries be paid out of the treasury of the State applied to all the officers there named. And the opinion in that case eon.cluded with the statement that \\\"under a proper construction of the Constitution, the salaries of the judges of the superior court are payable exclusively from the treasury of the State, and so much of the acts of 1904, as 'amended by the subsequent acts of 1905-1906 hereinbefore mentioned as purports to authorize \\u00a9uch salaries to be supplemented by funds from the1 county treasuries, is void. ' '\\nThe section of our Constitution set out above which provides for the salary of circuit judges also provides for the salary of the Governor, Supreme Court judges, and the other State officers, whose salary could only be paid out of the State treasury, and other sections provide for the county officers and their compensation; and we think the section on that subject above set out, limits the payment of judicial salaries to the revenue of the State.\\nNo other county in the State is called upon to bear any part of the burden of the salary of a circuit judge, and we think this burden has been imposed upon Garland County against the provision of the Constitution providing for uniformity of taxation. Judge Cooley, in his work on Taxation, page 227, says: \\\"It can therefore be stated with emphasis that the burden of a tax must be made to rest upon the State at large, or upon any particular district of the State, according as the purpose for which it is levied is of general concern to the whole State, or, on the other hand, pertains only to the particular \\\"district. A State purpose must be accomplished by State taxation, a county purpose by county taxation, or a public purpose for any inferior district by taxation of such district. This is not only just, but it is essential.\\\" It will be observed that the act creating this Eighteenth Circuit imposed two-thirds of the salary of this judge upon Garland County, and wholly exempts Montgomery, the other county composing the circuit, from any part of this burden.\\nIf the proviso requiring Garland County to assume the payment of two-thirds of the salary of the judge of that circuit is unconstitutional and void, what becomes of the act? Does that fact render the whole act void? The rule in such cases has been stated by Judge Cooley in his work on Constitutional Limitations to be as follows: \\\"! # Where, therefore, a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void also, unless all the provisions are connected in the subject-matter, depending on each other, operating together for the same purpose, or otherwise so connected together in meaning that it can not be presumed the Legislature would have passed the one without the other. The constitutional and unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand, though the last fall. The point is not whether they are contained in the same section; for the distribution into sections is purely artificial; but whether they are essentially and inseparably connected in substance. If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained. The difficulty is in determining whether the good and bad parts of the statute are capable of being separated, within the meaning of this rule. If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other. But if its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail, unless Sufficient remains to effect the object without the aid of the invalid portion. And if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the Legislature would not pass the residue independently, then if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall .with them.\\\" Cooley's Constitutional Limitations (6 ed.), page 210. This rule has been followed in innumerable cases in the various courts, and by this court in the following cases: L. R. & Fort Smith Rd. Co. v. Worthen, 46 Ark. 329; State v. Marsh, 37 Ark. 356; State v. Deschamp, 53 Ark. 490; Cribbs v. Benedict, 64 Ark. 555; Wells Fargo & Co. v. Crawford County, 63 Ark. 576.\\nWill the act creating this district stand this test? If this act is not valid, then Garland and Montgomery counties are left without any provision for a circuit court in those counties, and the prosecuting attorney and circuit judge of that circuit are officers de facto, and not de jure. We know from the Acts of the General Assembly of the year 1911, passed at the same session of the Legislature which created the Eighteenth Circuit, but at a later date of that session, that the Legislature recognized the dismemberment of the Seventh Judicial Circuit, of which Garland County had formerly been a part, for the Legislature rearranged the time for holding the courts of the counties. of Hot Spring, Grant and Saline, which were left remaining in the Seventh Circuit, in such a way that those courts conflict with the terms of court provided for in Garland County by the act under question. Such a purpose is not to be ascribed to the Legislature, where that purpose is not apparent, and will not be done in this case because we have an act which is full, complete and unambiguous in all of its terms and provisions. To this act is added a proviso which is invalid, and we think it more compatible with the legislative will to hold this proviso invalid, than to hold that the Legislature of the State has left two counties without a circuit court.\\nWe are not unmindful of the fact that the Legislature at its 1913 session appropriated \\\"for the salary of twenty-one circuit judges $122,000.\\\" We know by calculation that this appropriation is equivalent to $61,000 for each year, and that that sum would pay the full salary of twenty circuit judges for one year, and leave an excess of $1,000. This may indicate that the Legislature anticipated that Garland County would annually appropriate two thousand dollars in payment of the salary of the judge of that circuit. But we have quoted the language of the Legislature in making this appropriation, and, there is nothing in that language which excludes the judge of the Eighteenth Circuit from participating in this fund, and this appropriation has not been exhausted.\\nSection 3142 of Kirby's Digest reads as follows:\\n\\\"In all cases of accounts audited and allowed against the State, and in all cases of grants, salaries and expenses allowed by law, the Auditor shall draw- warrants upon the treasury for the amount due, in the following form: (Here follows form.) And^ mandamus will lie to compel an Auditor to draw a warrant for an officer's salary. Byrd v. Conway, 5 Ark. 436; Blade v. Auditor, 26 Ark. 237; Danley v. Whiteley, 14 Ark. 687; Jobe v. Caldwell, 93 Ark. 503; Jobe v. Caldwell, 99 Ark. 25; 26 Cyc., p. 235, and oases cited.\\nThe judgment of the circuit court below is therefore reversed, and the cause will be remanded with directions to the court below to make its appropriate order directing the Auditor of this State to issue appellant his war rant in the sum of $250 for his salary for the month ending October 31, 1913.\"}"
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+"{\"id\": \"1550237\", \"name\": \"Arnold v. Wood\", \"name_abbreviation\": \"Arnold v. Wood\", \"decision_date\": \"1917-01-29\", \"docket_number\": \"\", \"first_page\": \"234\", \"last_page\": \"238\", \"citations\": \"127 Ark. 234\", \"volume\": \"127\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T17:06:11.427764+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Arnold v. Wood.\", \"head_matter\": \"Arnold v. Wood.\\nOpinion delivered January 29, 1917.\\n1. Bills and notes \\u2014 alteration\\u2014liability op maker. \\u2014 Under \\u00a7 124 of the Negotiable Instruments Act, when an instrument has been materially altered, and is in the hands of a holder in due course, not a .party to the alteration, he may enforce payment according to the original tenor.\\n2. Bills and notes \\u2014 alteration\\u2014burden op proof. \\u2014 Where the alleged alteration is not apparent on the face of the instrument by the use of ordinary care in inspecting it, the burden is on the party alleging the alteration to prove it.\\nAppeal from Lawrence Circuit Court, Eastern District; Dene H. Coleman, Judge;\\naffirmed.\\nSTATEMENT BY THE COURT.\\nAppellee sued appellants upon a promissory note alleging the balance due to be $1,275.00. On January 22, 1914, at Alicia, Arkansas, appellants executed a promissory note payable to the order of Earle Gibbons Company for $1,725.00, due 12 months after date. The defense of appellants to the action was that there was a material alteration of the note apparent on its face. The n'ote was introduced in evidence before the jury and has been brought into the record here by proper stipulation.\\nAppellee, Robert Wood, was a dealer in horses and mules and carried some to Alicia, Arkansas, to sell them. While there he met Earle Gibbons and traded to him some of his stock for the note in question. Wood testified that he had never met Gibbons until the day he exchanged his stock for the note in question; that there were no alterations in the note when he received it and that he acquired the note in good faith paying value for it before it was due. Other evidence was adduced by him tending to corroborate his testimony, and especially that portion of it tending to show that the note did not appear on its face to have been altered. The cashier of the bank to whom Wood showed the note testified that it did not bear any appearance of having been altered. On the part of the appellants it was shown that R. E. Allison and H. K. Gibson both signed the note and that there were 19 persons who signed the note when it was executed. Both Gibson and Allison testified that they did not intend to sign a promissory note. They stated that Gibbons represented to them that he was organizing a corporation for the purpose of dealing in horses and other stock, and submitted to them, what they thought was a blank piece of paper to be signed by them as prospective subscribers to stock in the corporation to be organized; that they signed the paper in question on the faith of his representations and did not know that they had signed a promissory note; that when they found out that they had signed a promissory note they went to Gibbons and demanded that their names be taken off of the note; that in response to their demand Gibbons took a pen and matked a black line through their names. The two names in question do not now appear upon the note, but evidence was adduced by the appellants tending to show that they had been erased therefrom, and that the note still bears evidence of such erasures. The evidence on behalf of appellant also tends to show that the note was submitted by Gibbons to an attorney who told him that the alteration of the note by running the pen through the two names rendered it void. The jury returned a verdict in favor of appellee and the case is here on appeal.\\nW. P. Smith, G. M. Gibson and PI. L. Ponder for appellants.\\n1. There was an apparent alteration of the note, that was apparent on its face, and this made it void not only in the hands of Gibson, but of the appellee. Acts 1913, 302; 35 Ark. 146; 30 Id. 285; Crawford\\u2019s Annotated Neg. Inst. Law, p. 206, and cases cited. Since the enactment of this statute the burden of explaining an apparent alteration is upon the party producing the paper, lb. and cases cited; 20 Fla. 501, 512.\\n2. The proof shows clearly that two names had been erased and there can be no recovery.\\n3. A verdict should have been directed for defendants. The court erred in refusing the instructions requested by appellants. They were fair statements of the law.\\nA. S. Irby for appellee.\\n1. Appellee had no knowledge before or at the time he traded for the note that the names of Gibson and Allison were erased from the note nor was he a party to the alteration. The testimony was conflicting, but the jury, under proper instructions found for the appellee.\\n2. No evidence of erasure, or alteration, was apparent on the face of the instrument \\u2014 nothing to arouse suspicion. The case of Harris v. Bank, etc., 20 Fla. 501, settles the law in this case.\\n3. There is no error in the instructions. Appellee was an innocent purchaser, for value and without notice. Acts 1913, p. 302, \\u00a7 124. The verdict is right and will not he disturbed.\\nAct 81, p. 260, Acts 1913. \\u2014 (Rep.)\", \"word_count\": \"1350\", \"char_count\": \"7463\", \"text\": \"Hart, J.,\\n(after stating the facts). (1) The law of this case is stated in the case of Jones v. Bank of Horatio, 102 Ark. 302, where the court said: \\\"The original checks have not been brought up with the record. From the testimony it appears that there is a conflict as to whether or not the alleged alterations were apparent on the face of the checks. It has been settled by this court that the alteration of a check duly signed and delivered, without the knowledge or consent of the drawer, 'although done in such manner as to leave no mark or identification of an alteration observable by a man of ordinary prudence, avoids the check as to the drawer, even in the hands of one to whom it is negotiated before maturity for a valuable consideration and without notice of the forgery.' Fordyce v. Kosminski, 49 Ark. 40, but whether or not a check has been altered is a question of fact to be determined by a jury from the evidence adduced upon the trial of the case.\\\" Section 124 of the Negotiable Instrument Act, Acts 1913, Act 81, page 260, reads as follows: \\\"When a negotiable instrument is materially altered without the assent of all parties liable thereon, it is avoided except as against a party who has himself made, authorized and assented to the alteration. But when an instrument has been materially altered and is in the hands of a holder in due course, not a party to the alteration, he may enforce payment according to its original tenor. ' '\\nObjection is made by counsel for appellants to the refusal of the court to give certain instructions asked by them. The instructions refused were covered by instructions given by the court. The instructions of the court were in accordance with the principles of law laid down above and we do not deem it necessary to set them out.\\n(2) The principal contention of appellants is that the law enforces upon the party claiming under a note the burden of explaining an alleged alteration and assign as error the action of the court in refusing to so instruct the jury. This is the rule where the alteration appears or! the face of the instrument; but in the ease at bar according to the proof adduced by appellee, there is not upon the face of the note anything indicating an alteration or casting any serious suspicion upon its validity. In the case of an alleged alteration which is not apparent on the face of, the instrument by the use of ordinary care in inspecting it, the burden is on the party alleging it, to prove it. United States v. Linn, 1 How. (U. S.) 104; Case note 39 L. R. A. (\\u00d1. S.) at page 115; 1 Ruling Case Law, par. 73, page 1041.\\nIt follows that the judgment should be affirmed.\"}"
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diff --git a/arkansas/1556168.json b/arkansas/1556168.json
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+"{\"id\": \"1556168\", \"name\": \"Kansas City Southern Railway Company v. City of Mena\", \"name_abbreviation\": \"Kansas City Southern Railway Co. v. City of Mena\", \"decision_date\": \"1916-04-10\", \"docket_number\": \"\", \"first_page\": \"323\", \"last_page\": \"327\", \"citations\": \"123 Ark. 323\", \"volume\": \"123\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T18:37:37.918182+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Kansas City Southern Railway Company v. City of Mena.\", \"head_matter\": \"Kansas City Southern Railway Company v. City of Mena.\\nOpinion delivered April 10, 1916.\\nBAIIEOADS-CITY STREET OVER RIGHT-OF-WAY-DAMAGES. \\u2014 Where a City opened a street across the right-of-way and tracks of a railroad company, the railroad company is required to construct and maintain the crossing, but it can not recover from \\u00a1the city any damages or compensation on that account.\\nAppeal from Polk Circuit Court; Jefferson T. Cowling, Judge;\\naffirmed.\\nJames B. McDonough, for appellant.\\n1. A railway company is entitled to.the expense of structural changes when a city condemns a right-of-way across the company\\u2019s property. 75 Ark. 530 and 75 Id. 534, are not authority to sustain the ruling of the court below. 139 Mich. 347; 102 N. W. 947; 51 N. J. L. 428; 17 Atl. 971; 43 Id. 730; 69 Pac. 1050; 59 Atl. 1032; 63 N. E. 96; 102 N. W. 947; etc.\\nCharles A. Zweng, for appellee.\\nThe railway company was not entitled to the expense of structural changes when a city condemns a right-of-way across its property for street purposes under the police power. Acts 1913, p. 328; 75 Ark. 530; 88 Id. 129; 75 Id. 534; 166 IT. S. 226; 86 N. E. 84; 16 N. D. 313; 83 N. E. 503; 29 Id. 1109.\", \"word_count\": \"1484\", \"char_count\": \"8466\", \"text\": \"Smith, J.\\nThis suit was brought by the City of Mena to condemn a right-of-way for a street over the property of the appellant. Judgment was rendered for appellant for the sum of $50, which included only the value of the right-of-way taken. Appellant offered to introduce evidence that it was required to expend $181.39 in the re-arrangement and shifting of its tracks made necessary by the opening of the street, and that it had already expended $137.37 in installing the crossing. But this evidence was excluded hy the court upon the ground that the railway company was not entitled to compensation for these expenses and the correctness of this holding presents the only question for our consideration. The proof shows that the railway company has a number -of tracks across the proposed street and that the construction of this crossing will necessitate the \\\"shifting\\\" of these tracks and the removal of a switch-stand.\\nSince the opinion of this court in the cases of St. Louis S. W. Ry. Co. v. Royall, 75 Ark. 530, and St. Louis & S. F. Rd. Co. v. Fayetteville, 75 Ark. 534, section 6681 of Kirby's Digest has been amended by the Act No. 89 of the session of the General Assembly of 1913, Acts 1913, p. 328. This amendment consisted in adding after the words \\\"road or highway\\\" the phrase \\\"or street in any incorporated city or town of this State,\\\" the effect of the amendment being to impose upon the railway companies the same duty to erect crossings over the streets of cities and towns as previously existed to erect them over the roads and highways of the State. Therefore, what was announced in the cases cited as the duty of railroads with respect to roads and highways became their duty, upon the passage of the Act of 1913, with respect to the streets of cities and towns.\\nIn the case of St. Louis S. W. Ry. Co. v. Royall, Mr. Justice Biddick, speaking for the court, said: \\\"It would seem that under this provision of the law it was the duty of the viewers to assess the damages sustained by the company by reason of the laying out and establishing the roadway across the track, unless the statute permits highways to be established across the right-of-way and roadbed of the company without compensation for damages. But we find nothing in the statute that gives such authority. The statute provides that where any public- road or highway shall cross any railroad, the railroad company shall construct the crossing, and -also keep it in repair. Kirby's Digest, -section 668\\u00cd. Now, this does not say that any public road may be established .and opened across \\u00e1 railroad without compensation, but that when public highways are established across a railroad, the railroad company must construct the crossing and keep it in repair. We think it may well be inferred from the language of this statute that no compensation was intended to be paid the company either for constructing the crossing or for keeping it in repair. When a highway is' established across a railroad track in this State it becomes its duty under this statute to construct the crossings .and keep it in repair. This is a police regulation and similar provisions are found in the statutes of other states. As nothing is said in the act about compensating the company for this burden which the law places upon it, we think that none can be implied. It seems plain to us that none was intended, for it is not usual to allo\\\\f compensation for expense of obeying a police regulation. Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226.\\\"\\nAnd in the case of St. Louis & S. F. Rd. Co. v. Fayetteville, supra, the court, again speaking through Mr. Justice Biddick, said:\\n\\\"In the case of C., B. & Q. Ry. Co. v. Chicago, 166 U. S. 226, 255, the Supreme Court of the United States, after quoting decisions to the effect that no damages could be claimed, either by a natural person or corporation, on account of being compelled to render obedience to a police regulation designed to secure the common welfare, said: 'We concur in these views. The expenses that will be incurred by the railroad company in erecting gates-, planking the crossing, and maintaining flagmen, in order that its road may be safely operated \\u2014 if all that should be required \\u2014 necessarily result from the maintenance of a public highway, under legislative sanction, and must be deemed to have been taken by the company into account when it accepted the privileges and franchises granted by the State. Such expenses must be regarded as incidental to the exercise of the police powers of the State. What was obtained, and all that was obtained, by the condemnation proceedings for the public was the right to open a street across land within the crossing that was used, and was always likely to be used for railroad tracks. While the city was bound to make compensation for that which was actually taken, it can not be required to contpensate the defendant for obeying lawful regulations enacted for the safety of the lives and the property of the people. ' '\\nIn the case of City of Grafton v. St. Paul, etc., Ry. Co., 16 N. D. 313, 113 N. W. 598, the cases on this subject are reviewed at length. The question there involved arose under facts very similar to those of the case under consideration, and the 'decision of that case turned upon the construction of a statute very similar to our own. The court cited those cases which hold that railway companies are entitled to such damages as are here claimed and in that connection said:\\n\\\"An examination of the foregoing cases will disclose, we think, that the conflict in the holdings of these courts is mainly due to the difference in the statutes of the respective states; but some of them are based upon the decisions in Massachusetts, in which State there are express statutory provisions requiring compensation for these structural changes. Cases decided upon a statute such as the one in Massachusetts can not possibly have any weight in construing a statute so widely different as the one in this State.\\\"\\nThe court announced its conclusion as follows:\\n\\\"In our opinion the better rule, as the one we shall adopt, is that the railroad company should be compensated for the diminution in value of its exclusive right to the use, for railway purposes, of the property sought to be condemned, caused by the use of the same by the public for a street crossing, and that the items proved by appellants for grading, planking, .and constructing sidewalks at such crossing, are not proper elements of damage. The trial court, in view of the state of the record, there being no proof relating to the proper measure of damages, correctly instructed the jury to return a verdict for nominal damages merely. We are supported in our views by what we consider the weight of authority and the best considered cases.\\\"\\nThe court cited as supporting that conclusion a number of cases, including our case of St. Louis & S. F. Rd. Co. v. Fayetteville, supra. This North Dakota case is reported in 22 L. R. A. (N. S.) page 1, where an extended discussion of this and collateral questions can be found.\\nIt follows from what we have said, and from the previous decisions of this court cited above, that the appellant was not entitled to the damages claimed, and the judgment of the court below is, therefore, affirmed.\"}"
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diff --git a/arkansas/1569921.json b/arkansas/1569921.json
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+"{\"id\": \"1569921\", \"name\": \"Arkadelphia Milling Company v. Clark County Board of Equalization\", \"name_abbreviation\": \"Arkadelphia Milling Co. v. Clark County Board of Equalization\", \"decision_date\": \"1918-10-28\", \"docket_number\": \"\", \"first_page\": \"180\", \"last_page\": \"185\", \"citations\": \"136 Ark. 180\", \"volume\": \"136\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T20:48:25.480373+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Arkadelphia Milling Company v. Clark County Board of Equalization.\", \"head_matter\": \"Arkadelphia Milling Company v. Clark County Board of Equalization.\\nOpinion delivered October 28, 1918.\\n1. Taxation \\u2014 county equalization board \\u2014 appeals.\\u2014Acts 1911, c. 249, \\u00a7 2, provides that any taxpayer, aggrieved by the action of the' county board of equalization, niay appeal from the action of the board to the county court; \\u00a7 3, Id., provides that any taxpayer objecting to the board\\u2019s assessment of any other taxpayer may likewise appeal to that court; \\u00a7 4, Id., provides that all appeals from the order of the board of equalization to the October term of that court be heard before the fourth Wednesday in October. Held that \\u00a7 4 applies to both classes of appeals.\\n2. Certiorari \\u2014 discretion of court. \\u2014 Certiorari is a writ of discretion, and not a writ of right, and is not to be employed when its employment does an injustice and deprives one of a legal right which would have been established by the proceeding sought to be reviewed, had that proceeding been conducted in compliance with the strict forms of law.\\n3. Same \\u2014 when relief denied. \\u2014 Where the county court adjourned before the county equalization board assessed appellant\\u2019s property, so that appellants were unable to appeal to the county court for relief before the fourth Monday in October, and the county court at the January term following gave to the appellants the relief to which it would have been entitled at the October term, the judgment of the county court granting such relief will not be quashed on certiorari.\\nAppeal from Clark Circuit Court; G. G. Hamby, Special Judge;\\nreversed.\\nMcMillan & McMillan, for appellant.\\n1. Act .249, p. 230, Acts 1911, was passed not to repeal laws governing tbe procedure in cases where a taxpayer is seeking equalization in the assessment of his own proprty, but to provide a method of procedure by which one taxpayer may prosecute his objections to the assessment of another taxpayer. 94 Ark. 217. The act was passed to amend Kirby\\u2019s Dig., \\u00a7 7003, 7007, and not to repeal, $ 6999 as amended by Act 217, Acts 1911, p. 188; 96 Ark. 92.\\n2. If the taxpayer files his application within the time required, the provision as to when the application shall be heard is directory. The rights of a taxpayer to appeal from the action of the Board of Equalization increasing his assessment is a matter of right. 34 Ark. 491; 113 Id. 138; 90 Id. 413, etc.\\n3. Appellant\\u2019s application could not be heard by the quorum court before the fourth Wednesday of October, because the court was not in session before that date. Acts 1911, p. 188, \\u00a7 1.\\n4. The levying court has no jurisdiction over the assessment or equalization of values for taxation. Art. 7, \\u00a7 30, Const, and, \\u00a7 \\u00a7 28-30; 32 Ark. 521-2; lb. 497; 71 Id. Ill; 98 Id. 493; 34 Id. 469; 58 Ala. 546-559; 45 Wash. 368, 370, 578.\\n5. Section 4, Act 249 is unconstitutional, depriving the taxpayer of his property without due process of law. Const. 1874, Art. 2, \\u00a7 8; 49 Ark. 518-533; 115 TJ. S. 321. Overvaluation can not be corrected by certiorari or injunction. 49 Ark. 519-534.\\nJohn II. Crawford and Dwight H. Crawford, for appellee.\\n1. In certiorari proceedings the proper judgment was to quash the illegal orders of the county court or refuse the relief. The statute is mandatory. Sec. 4, Act 249, Acts 1911; Kirby\\u2019s Dig., \\u00a7 1315-16; 35 Ark. 96, 99; 39 Id. 347, 352; lb. 426; 21 Id. 426; 30 Id. 17; 124 Id. 234-237; 5 R. C. L. 265.\\n2. Appellant\\u2019s answers are not sufficient as against the demurrers interposed. 105 Ark. 450.\\n3. Act 249 requiring the taxpayer to seek a remedy prior to the fourth Wednesday in October is mandatory. 105 Ark. 450, 453; 94 Id. 217, 220; 113 Id. 138, 141.\", \"word_count\": \"1817\", \"char_count\": \"10209\", \"text\": \"Smith, J.\\nThe Clark County Board of Equalization, on October 10, 1916, increased the amount of the personal assessments of the appellant, which, on the following day appealed from this action to the county court. The county court was not in session at any time from the fourth day of October until the first Monday in January, 1917, but, upon convening, it heard appellant's appeal, and granted the relief prayed, by reducing the assessments. Thereafter, on the 16th day of January, 1917, the board of equalization filed in the circuit court .a petition for a writ of certiorari to quash this order .of the county court, and, upon the hearing of this petition, the order of the county court was quashed upon the ground that, \\\"after the October term of said Clark County Court, that court was without jurisdiction to act upon the said application for a reduction of their taxes,\\\" and this appeal questions the correctness of that holding. The court below based its action on sections 2, 3 and 4, of Act No. 249 of the Acts of 1911, p. 230, which is an act entitled, \\\"An Act to Amend Sections 7003 and 7007 of Kirby's Digest, and to provide the Manner of Appealing from the Orders of the County Board of Equalization to the County Court, and from the County Court to the Circuit Court.\\\"\\nSection 2 of this act amends section 7007 of Kirby's Digest to read that the board of equalization shall have power to exercise its functions as a board in the equalization of property until the fourth Wednesday in October. It further provides that it (the board) shall not raise the assessment of the property of any taxpayer after the second Wednesday in October until such tax payer or his agent has had due notice, and has been given an opportunity to be heard. And further that \\\"such tax payer may, if he is aggrieved by the action of the board, appeal within the time provided by law to the county court. ' '\\nSection 3 provides that any taxpayer may file before the board objection to the assessment of any other taxpayer, and from the decision of the board with respect to such assessment the objecting taxpayer may appeal to the county court, and from the final order of the county-' court he may appeal to the circuit court, and thence to the Supreme Court, and that such appeals shall be prosecuted in the name of the State of Arkansas on the relation of the objecting taxpayer.\\nSection 4 is as follows: \\\"All appeals taken from the order of the board of equalization shall be taken to the October term of the county court, and such appeals, even if taken after the regular October term of the county court has convened, shall be heard and passed upon by said court before the fourth Wednesday in October. ' '\\nIt is earnestly insisted by counsel for appellant that section 4 relates only to the appeals provided for in section 3, and not to appeals prosecuted from the action of the board taken under the provisions of section 2. In support of this position, it is pointed out that otherwise the equalization board might raise, assessments until and including the fourth Wednesday in October, which is the last day on which'the county court could hear appeals, and that the fourth Wednesday of October is also the day on which, under the provisions of Act 217 of the Acts of 1911, page 188, the county judge, with a majority of the justices of the peace, meet as a court for the levying of taxes and making appropriations for the expenses of the county.\\nIt is unquestionably possible that the fourth Wednesday in October might prove to be a very busy day for the county judge, but it is provided in section 2 of the Act 249 of the Acts of 1911 that the equalization board shall meet on the first Monday in September, and it was undoubtedly contemplated by the Legislature that the duties of the board would be discharged in the usual course of events in time for appeals to be taken and to be heard in the county court on or before the fourth Wednesday in October. The statute provides for four terms of the county court in each county, one of which is to be held, except only in the case of a few counties where a different day is fixed by law, on the first Monday in October, so that a period of about three weeks existed, during which these appeals could ordinarily be heard.\\nIt is true we have here the case of the county court adjourning for the term while the equalization board was still in session, but this occurrence, or the possibility .of similar occurrences in other counties, can not be taken into account in construing the provisions of an unambiguous statute. An aggrieved taxpayer would not necessarily be deprived of his right of redress because of the erroneous action of the county court in adjourning Anally for the October term before the eqalization board Aad completed its labors. By mandamus, or other appropriate remedy, he might secure the day in court which the law contemplates he shall have.\\nWhile it is true that the courts of common law and \\u2022of equity are powerless to give relief against erroneous judgments of assessing bodies, except as they are especially empowered by law so to do (State v. Little, 94 Ark 220) still, the taxpayer in this proceeding who obtained relief at a time other than that contemplated by .the statutes is not asking here any affirmative relief. The case arises out of a petition for certiorari to quash a judgment granting relief, which, so far as the record before us discloses, was appropriate and proper, but which is questioned because it was not accorded at a particular term of the court.\\nCertiorari is a writ of discretion, and not a writ of right, and is not a proceeding to be employed when its employment does an injustice and deprives one of a legal \\u2022 .right which would have been established by the proceeding sought to be reviewed, had that proceeding been con.ducted in compliance with the strict forms of law.\\nIf the taxpayer were asking affirmative relief, he might be met with the answer that he could have had relief had he pursued with diligence the remedies afforded by the law, and that he will not be given relief when he has failed so to do. But it does not follow, because this is true, that a writ of discretion should issue which operates to deprive him of the relief he would have obtained had he been diligent. Johnson v. West, 89 Ark. 604; Rust v. Kocourek, 130 Ark. 39.\\nWe are of the opinion, therefore, that the writ of \\u00abcertiorari in this case should not have issued, and the judgment of the court below will be reversed, and the case remanded with directions to quash it.\"}"
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+"{\"id\": \"1570024\", \"name\": \"Ingraham v. Baum\", \"name_abbreviation\": \"Ingraham v. Baum\", \"decision_date\": \"1918-10-21\", \"docket_number\": \"\", \"first_page\": \"101\", \"last_page\": \"107\", \"citations\": \"136 Ark. 101\", \"volume\": \"136\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T20:48:25.480373+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Ingraham v. Baum.\", \"head_matter\": \"Ingraham v. Baum.\\nOpinion delivered October 21, 1918.\\nGuardian and ward \\u2014 sale op non-resident ward\\u2019s land \\u2014 validity.^Kirby\\u2019s Dig. \\u00a7 3813, provides that \\u201cwhen a non-resident minor owns real estate in this State, and has a guardian in the State or Territory in which he resides, the court of probate in the proper county may authorize such guardian * * to sell such real estate,\\u201d etc. Kirby\\u2019s Dig., \\u00a7 3793, provides that \\u201call probate sales of real estate, made pursuant to proceedings not in substantial compliance with statutory provisions, shall be voidable.\\u201d Held, that a sale of land of a nonresident minor, made by a guardian without notice or appraisement, was voidable, though it was approved by the probate court.\\nAppeal from Sebastian Chancery Court, Fort Smith District; W. A. Falconer, Chancellor;\\naffirmed.\\nJ. V. Bourland, for appellant.\\n1. The sale was hot void because of clerical errors in description, nor because the probate court authorized a private sale. The money was duly paid and the sale approved by the court. The purchaser took possession in good faith and paid taxes and made valuable improvements. The act of the agent binds the guardian. 76 Ark. 615; 89 Id. 435; 65 Id. 325; 46 Id. 210; 21 Id. 533; 15 Id. 540. If the .sale was void a decree should have been entered for the repayment of the purchase money, interest and taxes, etc.\\n2. But the sale was not void under our statutes. Kirby\\u2019s Dig., \\u00a7 \\u00a7 3793, 3813, 3795, 3803; Act April 8, 1891; 32 Ark. 97; 32 Id. 391; 52 Id. 341; 51 Id. 338. The sale was a substantial compliance with the law; the lots brought full value and the money was paid and sale approved.\\n3. .Appellant did not have to see that appellees received the benefit of the sale. 89 Ark. 284; 54 Id. 480; 16 Id. 377.\\n4. Private sale was perfectly lawful. 26 Ark. 421; Kirby\\u2019s Dig., \\u00a7 3813; Act April 8, 1891; Const. 1874, Art. 7, \\u00a7 34.\\n5. The court erred as to betterments.\\nWinchester \\u00e9 Martin, for appellees.\\n1. The sale was void. It was a private sale and not made in compliance with law. 116 Ark. 361; Kirby\\u2019s Dig., \\u00a7 3813. There was no bond nor appraisement.\\n2. We find no authority in our law empowering the probate court to order a minor\\u2019s real estate to be sold at private sale. It. must be appraised and sold for not less than three-fourths its value. 115 .Ark. 385; 106 Id. 563. Confirmation did not cure the error. The court had no jurisdiction. 123 Ark. 189; 125 Id. 291; 86 Id. 443: It. 446; 75 Id. 6: 17 Am. St. 667; 5\\u00cd Id. 394. The court properly held that plaintiffs were the owners of two-thirds of the realty, hut erred in holding that they were not entitled to one-seventh as sole heirs of'Mary Baum.\\n3. The court erred in fixing the value of the improvements. On cross-appeal the findings as \\u25a0 to the present value of the buildings should be reduced to $5,060.\", \"word_count\": \"1994\", \"char_count\": \"11186\", \"text\": \"Smith, J.\\nWilliam and Marguerite Baum brought this suit to recover from appellant Ingraham their undivided interest in lots 5 and 6, block 3, Griffith & Nix Addition to Fort Smith, Arkansas. The lots were owned by their father at the time of his death, and he- was survived by his wife and three children. The third child, Mary Baum, died without issue, and the plaintiffs claimed a part of this share also as heir at law of their deceased sister. The complaint contained a prayer for the restoration of the possession of the land and for an accounting as to rents.\\nIngraham admitted having possession of the lots since August 11, 1909, and alleged that he acquired the right to this possession at that time by virtue of a sale made to him under an order of the probate court of Sebastian County, which sale had been duly approved and confirmed.\\nAfter her husband's death, Mrs. Baum married one Turner McGilberry, and removed with her children to his home in Oklahoma, where they have since resided. McGilberry became the guardian of the children in Oklahoma, and in 1909 appointed one T. N. Beed as his agent to procure an order of the probate court for the sale of the lots above described. This sale was attempted to be had under the provisions of section 3813, Kirby's Digest, and the court directed the agent to sell the land privately. The land was sold privately without appraisement or other compliance with the general statutes regulating the sale of real estate owned by a resident minor, but the sale was reported to and approved by the court, and a deed was executed. The court below held the sale void, and referred the question of the rents and betterments to a master, whose report was excepted to by both parties, and the court made a finding on this report, from which both parties have appealed.\\nAt the time of the institution of the proceeding in the probate court to procure the order of sale, Mary Baum, the oldest child, was a minor, and the order of sale included her interest as well as that of the younger children, but, at the time of the execution of the deed, Mary Baum, had become of age, and she personally joined in the execution of the deed, together with her mother, who conveyed her dower interest.' Mary Baum's interest was described in the deed as being two-ninths, and there was a prayer in the answer and cross-complaint that the deed be reformed in this respect and made to cover the three-ninths, or one-third interest which Mary Baum individually owned, subject to the dower interest of her mother. This relief was granted, and the deed was reformed in accordance with the intention of the grantor, as found by the court, to convey her entire interest in the land. The cross appeal questions this action also.\\nAt the April, 1906, term of the probate court, Mc-Gilberry, as guardian, procured an order of the court for the sale of the lots, and offered them for sale pursuant to this order, but the sale then made was not approved for the reason that the bidder did not offer to pay three-fourths of the appraised value. The order under which the sale was finally made was procured by Reed on August 5,1909, a day of the July term, 1909. This order recited that a sale of the lots was necessary for the support and education of the minors, and that the property could be sold to better advantage at private sale. A private sale without appraisement or publication was made and approved by the court, and the deed mentioned above was executed by Reed pursuant to this authority.\\nSection 3813, Kirby's Digest, reads as follows:\\n\\\"When a nonresident minor owns real estate in this State, and has a guardian in the State or Territory in which, he resides, the court of probate in the proper county-may authorize such guardian, either in person or by his agent acting under power of attorney, to sell such real estate and receive the proceeds of such sale. Provided, before any order shall be made for the payment of money to a nonresident guardian, or for the sale of the property of his ward by him, he shall produce satisfactory evidence to the court that he has given bond and security as guardian, in the State in which he and his ward reside, in at least double the amount of the sum to be paid to him, or in double the amount of the appraised value of the property to be sold; and the proof shall consist of a copy of the record setting forth his appointment as guardian, and also a copy of his bond executed as such, duly authenticated. ' '\\nThe section quoted was section 37 of Act. No. 7i8 of the Acts of 1873, p. 185, which was entitled \\\"An Act Defining the Powers and Regulating the Duties of Guardians, Curators, and Wards.\\\" Section 27 of the same act authorized the leasing or sale or mortgaging of a minor's lands for his education. This is now section 3794 of Kirby's Digest. Section 28 of the Act of 1873 provides that when the lands are sold under the provisions of Section 27 \\\"such sale shall be advertised and conducted in the same maimer as now provided by law for advertising and for conducting sales of real estate of deceased persons made by executors and administrators for the payment of debts.\\\" This is now section 3795 of Kirby's Digest.\\nIt is true that section 37 of the Act of 1873 (section 3813 of Kirby's Digest) does not expressly prescribe how the sales shall be conducted which are there authorized. But the act should be construed as a whole. The Legislature had at first dealt with the estates of resident minors, and had provided how such property might be sold. The Legislature found it wise to prescribe terms under which that property might be sold, to protect the infant's interest. The whole subject was under the control of the 'Legislature, which, recognized that there would be nonresident minors owning property in .this State, whose lands should also be sold, and provision for that contingency was made in section 37. The Legislature did not there re-enact or re-state the terms under which such a sale might be conducted, but nothing appears in the act to indicate that the Legislature intended to dispense with the requirements in the one case that were thought wise in the other. The same considerations of public policy were alike involved. In addition, a proviso in section 37 (3813 Kirby's Digest) requires that before any order of sale shall be made for the payment of money to a nonresident guardian, or for the sale of the property of his ward by him, he shall produce satisfactory evidence that he has given bond *' in double the amount of the appraised value of the property to be sold. The appraisal of the property is one of the requirements for the sale of a resident minor's property, and is not, ordinarily, a thing that would be required in the case of a private sale.\\nIt is also insisted that a sale under section 3813 is not a probate sale within the meaning of section 3793, Kirby's Digest, which provides that all probate sales of real estate made pursuant to proceedings not in substantial compliance with the statute shall be voidable. This can not be true, as the sale can only be made in any event after an order to that effect has been made by the probate court. The case of Landreth v. Henson, 116 Ark. 361, is authority for holding that sales made under section 3813, Kirby's Digest, are subject to the provisions of section 3793.\\nWe think the testimony fully warranted the court in reforming the deed from Mary Baum. Her deed recites that she conveys all her interest, and it is apparent that a mutual mistake was made in stating the fractional part of the whole which she owned.\\nThe testimony is somewhat uncertain and conflicting on the question of betterments. Much of this testimony related to the enhanced value of the building material contained in the houses which Baum built on the lots, and to the per cent, of depreciation due to its age. It would -serve no useful purpose to discuss this testimony in detail, and, as it does not appear that the finding of the chancellor in this respect is clearly against the preponderance of the evidence, we affirm his finding as to values. .\\nThe complaint contained a prayer for the partition of the land, and this was ordered, subject to the widow's claim of .dower and the lien for. betterments. This was a proper order to make, as the court had. power to grant full relief.\\n\\u2022 Decree-affirmed. -\"}"
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+"{\"id\": \"1580457\", \"name\": \"McCarroll v. Falls\", \"name_abbreviation\": \"McCarroll v. Falls\", \"decision_date\": \"1917-05-21\", \"docket_number\": \"\", \"first_page\": \"245\", \"last_page\": \"253\", \"citations\": \"129 Ark. 245\", \"volume\": \"129\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T20:24:47.193825+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"McCarroll v. Falls.\", \"head_matter\": \"McCarroll v. Falls.\\nOpinion delivered May 21, 1917.\\n1. Life estate \\u2014 cutting timber for sale. \\u2014 A life tenant can not cut timber solely for purpose of sale.\\n2. Remainders \\u2014 vested remainder. \\u2014 A will devised to S. A. K. \\u201cone-fourth of my real estate on the death of my said wife.\\u201d By subsequent paragraphs in the will it was provided that if the testator\\u2019s wife remarried that she should take a life' estate in only one-half of his lands. Held, S. A. K. took a vested remainder under the will, and an interest which she could convey.\\nAppeal from Tell Chancery Court, Danville District; Jordan Sellers, Chancellor;\\naffirmed.\\nWilson \\u00e9 Chambers and Carmichael, Brooks, Poiuers & Rector, for appellants.\\n1. The whole will must be construed together to get the intention of the testator. 113 Ark. 500. By reading the whole will it will be found that the guiding influence in the mind of the testator was to keep the property in the McCarroll family \\u2014 the widow to hold for life or widowhood and the various devisees to take a contingent interest and not a vested interest. Borland on Wills & Adm. 289.\\n2. If there be a repugnancy in the provisions of a will the last controls. Borland on Wills, etc., p. 300.; 113 Ark. 500; 126 Ga. 740, 56 S. E. 93; 77 Neb. 108; N. W. 979; 28 Ark. 102. This is a rule of property now in this State. Under clauses 10 and 14 read together a contingent remainder was created. 81 Ark. 480.\\n3. All the clauses must be given some meaning, if possible. None can be stricken out. 22 Ark. 570; Borland on Wills, etc., 298, 300.\\n4. It must be presumed that the will was made for some purpose. 64 Ark. 351.\\n5. The interest devised in sections 10 and 14 read together constitute a contingent remainder, and at the death of Mrs. Jennie. McCarroll went to Yina Rogers, Delia Albright and Amanda Ford, children of Sarah E. Kelley. 2 Jarman on Wills, p. 459; Words & Phrases., \\u201cIf,\\u201d citing 33 Conn. 281-6; 39 Atl. 968; 185 Pa. 359; 64 Am. St. 654-6. The case in 92 N. W. 71 is directly in point. 101 N. W. 199; 69 Ark. 319. The word \\u201cheirs\\u201d is not necessary to create an estate of inheritance. 94 Ark. 615. Sarah E. Kelley would take nothing unless she were alive at the death of the life tenant. 44 Ark. 458. See 47 Ark. 117, 458; 49 Id. 129; 67 Id. 521; 77. Id. 338; 75 Id. 21; 98 Id. 573; 214 Fed. 935; 83 Id. 554; 90 Id. 152; 104 Id. 439. There never was seizin in Sarah E. Kelley, and hence no vesting of any estate. 88 Ark. 468.\\n6. The interveners are not estopped by the fact that they received part of the money paid by Falls and Montgomery. 51 Ark. 62. Title does not pass by estoppel, but must be by conveyance in writing.\\n7. The cutting of timber was not waste. .95 Ark. 246.\\nJohn M. Parker and Moore, Smith, Moore & Trieber, for appellees.\\n1. The cases cited herein and the unquestionable weight of authority is; courts will hold the remainder to be vested, if it can be done without violation of the plain intention of the testator. A provision that at or after the death of a life-taker that the property shall go to,, or pass to another, is not taken to indicate an intention to postpone the vesting of the estate in the remainder-man to the death of the first taker \\u2014 the intention is merely to postpone the possession and enjoyment. A vested remainder was created. 28 A. & E. Enc. Law (1 ed.) 339, 442; 101 N. T. 195; 72 Ark. 298; Kirby\\u2019s Digest, \\u00a7 733; 104 Ark. 448; 2 Jarman on Wills (5 Am. ed.) 406, 410, note; 90 Ark. 155; 104 Ark. 439; 41 N. E. 535; 52 N. E. 934; 132 N. W. 809; 113 U. S. 380; 43 S. W. 677; 68 Id. 421; 106 Mass. 578; 28 Barb. 432; 4 Sandf. 36; 62 S. E. 712; 91 N. E. 1010; 92 Id. 616, 619.\\n2. There is no estoppel.\\n3. Defendants are liable for waste. 95 Ark. 246.\", \"word_count\": \"2638\", \"char_count\": \"14652\", \"text\": \"Smith, J.\\nJames McCarroll died seized and possessed of the lands which form the subject-matter of this litigation. The lands were disposed of by him under a will which contained the following provisions:\\n\\\"Ninth. I hereby devise, give and bequeath unto R. Gr. McCarroll and R. E. McCarroll, my nephews, and E. J. Keathley, my niece, jointly, one-fourth of my real estate after the death of said wife.\\n\\\"Tenth. I hereby give, devise and bequeath to Sarah A. Kelley, my sister, one-fourth of my real estate on the death of my said wife.\\n\\\"Eleventh. I hereby give, devise and bequeath to Dorcas L. Albright, my sister, one-fourth of my real estate after,the death of. my said wife,\\n\\\"Twelfth. I hereby give, devise and bequeath to John M. McCarroll and W. S. McCarroll, my nephews, and Ada Clement, my niece, jointly, one-fourth of my real estate after the death of my said wife.\\n\\\"Fourteenth. If at the time of the death of my said wife, either of sisters, nephews or nieces shall be dead, then it is my will that the share herein devised to such one shall descend to his or her legal heirs in 7 the same manner as if he or she had been living at said time.\\n\\\"Fifteenth. In case of remarriage of my said wife, Jennie McCarroll, then it is my will, and I hereby devise, give and bequeath to my said wife, Jennie McCarroll, an undivided one-half of the real estate of which I may die possessed; the lots ordered to be sold and the land directed to be deeded away, except to be held, used, rented and enjoyed by her from the date of her marriage until her death, and that the other undivided interest shall then be vested in my sisters,nephews and nieces the same as is directed in case of the death of my said wife.\\\"\\nMrs. Sarah E. Kelley conveyed her undivided fourth interest in the lands to appellees, Falls and Montgomery, who also purchased from another devisee an undivided one-twelfth interest. Falls and Montgomery instituted this suit by filing a complaint in which they alleged their ownership of the interests stated, and further alleged that other devisees had contracted to sell, and had sold, a large amount of timber growing on said land, and that the same was being cut and removed without their consent and to their great damage. There was a prayer for an injunction and an accounting.\\nThe devisees named as defendants filed an answer in which they admitted cutting the timber, but alleged they had done so under a contract with Mrs. McCarroll, the life tenant, whereby they were authorized and directed to use such timber as was necessary to make improvements on the place, and that the timber had been cut and removed for this .purpose, and that the timber so cut and removed was insufficient to reimburse them for the improvements made upon the land, and that the cutting of the timber was in keeping with good husbandry.\\nAn intervention was filed by the children of Sarah E. Kelley, who alleged the death of their ancestor since the institution of the suit and in the lifetime of Jennie McCarroll, the widow of the testator. These interveners alleged their ownership of the interest bequeathed to Mrs. Kelley under paragraph 10 of the bill. Other defendants filed an answer and cross-complaint putting in issue the questions here to be decided.\\nThe court found that the widow had a life estate in all the lands, and that the persons named in paragraphs 9, 10, 11 and 12 had vested remainders in the interests there devised, and found specifically that Mrs. Kelley had a vested remainder in an undivided one-fourth interest, and that this interest which had been conveyed to Falls and Montgomery, together with another interest which they had also bought, gave them each an undivided one-sixth interest in the land, and that as the widow had died since the institution of the suit they had this one-sixth interest each in fee, and were entitled to all the benefits incident to such an estate.\\nThere was a finding that the defendants had committed waste to the amount of $800 by selling and removing timber, but that they were entitled to a credit of $50 for clearing land, and judgment was rendered for ' this amount, and a partition of the land was also ordered.\\nThe finding of the court below upon the subject of waste is attacked upon the ground that it is against the preponderance of the evidence. But, without setting out this evidence, which involves the question of the relative value of the land with the timber on it, and with the timber removed, we announce our conclusion to be that the finding of the court below is not clearly against the preponderance of the evidence and that most of the timber was cut for mere purpose of sale. This right the life tenant herself would not have had. Rutherford v. Wilson, 95 Ark. 246.\\nThe real question in the case is whether Mrs. Kelley took a vested, or a contingent, remainder under the will of McCarroll, and in the elucidation of this question counsel on both sides have filed briefs evincing much research and learning, and the discussion of this question will dispose of the real point at issue.\\nThe subject of remainders has been a favored one with the annotators, and in the selected cases on this subject there can be found citations to more than ^enough cases to furnish one a summer's reading, and an attempt to review these cases would be a work of supererogation, \\\"an affectation of learning.\\\" We shall content ourselves with a statement of our construction of this will and the reasons leading to the conclusion announced.\\nIn the case of Booe v. Vinson, 104 Ark. 439, 448, it was said:\\n\\\"It is also a well established principle that the law favors the vesting of estates, and, in the absence of a contrary intention of the testator appearing from the will, the estate will vest at the time of his death, and, if a will is susceptible of a dual construction, by one of which the estate becopaes vested and by the other it remains contingent, the construction which vests the estate will be adopted. Wilce v. Van Anden, 94 N. E. 42; Barker v. Barker, 135 S. W. 396; McKinley v. Martin, 75 Atl. 734; Van Denson v. Van Denson, 122 N. Y. Supp. 718, 133 App. Div. 357.\\\"\\nWe must hold, therefore, that paragraph 10 of this will gave Mrs. Kelley a vested remainder to an undivided one-fourth interest, unless the will, when considered as a whole, makes it plain that such was not the testator's. intention.\\nWe do not agree with learned counsel for appellant that the testator's \\\"main concern was about his nephews and nieces, rather than about his brothers and sisters,\\\" for the name of no nephew and niece is mentioned except where their parents were dead and they were given the interest which the parents .would have taken had they been alive.,\\nParagraphs 9, 10, 11 and 12, which each disposed of a fourth interest, do so in the present tense, and employ language so perfectly plain that no doubt could arise as to their meaning when read alone, and if any doubt exists it must arise out of language employed in the subsequent paragraphs of the will, and this, learned counsel for appellants say, is the effect of the fourteenth paragraph.\\nBut we think this fourteenth paragraph does not limit the estate conveyed in the tenth paragraph. The testator had in mind that he had given a vested interest under paragraphs 9,10,11 and 12, for, by this fourteenth paragraph he provided that the interest so disposed ,of should descend, not to the testator's heirs, but to the legal heirs of the prior takers \\\"in the same manner as if he or she had been living at ,said time. ' '\\nThe case of Archer v. Jacobs, 125 Iowa 467, 101 N. W. 195, is a splendidly considered case, on facts very similar to those of the instant case. It was there said (to quote from the syllabus):\\n\\\"2. A remainder is contingent where the right of the remainderman to succeed to the possession and enjoyment of the estate depends upon some contingency which may never arise, or where the person who is entitled to succeed to the possession and enjoyment at the termination of the life tenancy is not, and may never be, ascertained, or is not in being. In general, it is the present capacity of taking effect in possession, if the possession becomes vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, that distinguishes a vested from a contingent remainder.\\\"\\nIt was there further said:\\n\\\"4. The uncertainty whether a remainderman will outlive the life tenancy and come into actual possession does not make the remainder contingent.\\\"\\nA leading case on this subject, and one citec\\u00ed in many of the cases which have been annotated, is that of Haw ley & King v. James, 5 Paige, Chancery Reports (N. Y.) 318. That opinion is a treatise of the greatest learning, and on page 466 of the opinion it is said:\\n\\\"A remainder is vested in interest where the person is in being and ascertained, who will, if he lives, have an absolute and immediate right to the possession of the land upon the ceasing or failure of all the precedent estates, provided the estate limited to him by the remainder shall so long continue. In- other words, where the remainderman's right to an estate in possession can not be defeated by third persons, or contingent events, or by the failure of \\u00e1 condition precedent, if he lives, and the estate limited to him by way of remainder continues, till all the precedent estates are determined, his remainder is vested in interest. ' '\\nHere the interest given to Mrs. Kelley vested at the same instant and by the same grant as the life estate to the widow, and, although her right to the enjoyment of. the possession of this interest was postponed until the termination of the life estate, still this right, upon the termination of the prior particular 'estate, was presently fixed, and was ip no wise dependent upon the happening of any event.\\nWe think it clear, when paragraphs 9,14 and 15 are read together, that it was the intention of the testator that his widow should have the entire estate for her life if she remained unmarried, but should have only one-half thereof if she remarried. But this event did not affect the interest of any remainderman'; it only affected the time at which they would tak\\u00e9 the portion of the estate given them.' There was no uncertainty about the remaindermen, or the interest they would take. Mrs. Kelley's possession was postponed only that the widow might enjoy the life estate, but under this will she, and not another, was entitled to the possession of the property described in paragraph No. 10 upon the death of the widow, and there was no contingency which could /defeat her right to the interest'given her by paragraph 10 in the event she survived the life tenant. Her interest was, therefore, a vested one, and was, therefore, one which she had the right to convey.\\n\\\"We think the will was correctly construed by the court below, and the decree so construing said will is affirmed.\"}"
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+"{\"id\": \"1604165\", \"name\": \"Alma Jean Doty, Justice of the Peace v. Charles Goodwin\", \"name_abbreviation\": \"Doty v. Goodwin\", \"decision_date\": \"1969-02-17\", \"docket_number\": \"5-4840\", \"first_page\": \"149\", \"last_page\": \"151\", \"citations\": \"246 Ark. 149\", \"volume\": \"246\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T02:28:56.575314+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Alma Jean Doty, Justice of the Peace v. Charles Goodwin\", \"head_matter\": \"Alma Jean Doty, Justice of the Peace v. Charles Goodwin\\n5-4840\\n437 S.W. 2d 233\\nOpinion Delivered February 17, 1969\\nJoe Purcell, Atty. Gen. and Bon Langston, Asst. Atty. Gen. for appellant.\\nCamp & IAngle for appellee.\", \"word_count\": \"593\", \"char_count\": \"3392\", \"text\": \"George Rose Smith, Justice.\\nOn June 7, 1968, a state police officer issued a traffic ticket to the appellee Goodwin, charging him with reckless driving and directing him to appear in a justice of the peace court for trial. In the justice court Goodwin moved for a dismissal of the charge, on the ground that in misdemeanor cases a justice of the peace receives his fees and costs only when the accused is convicted. Such a provision of law is a denial of due process. Tumey v. Ohio, 273 U. S. 510 (1927). The justice denied the motion to dismiss, but on certiorari the circuit court sustained Goodwin's contention and prohibited the justice from proceeding further. The State, at the prosecuting Attorney's request, has taken an appeal to set the question at rest. Ark. Stat. Ann. \\u00a7 43-2720 (Repl. 1964).\\nThe circuit court was right. Under the Tumey case the presiding judge in a criminal case must not have a pecuniary interest in convicting the accused. There the court set aside a conviction in a mayor's court, because the mayor was entitled to recover costs only if the trial resulted in a conviction. The opinion pointed out that the practice existed in several states, including' Arkansas.\\nWe still have on the statute books a remnant of the condemned procedure. A justice of the peace receives certain fees and costs in criminal cases. Ark. Stal. Ann. \\u00a7 12-1731 (Repl. 1956). The fees must be paid by the defendant if he is convicted. Ark. Stat. Ann. \\u00a7 43-2405. The statute is silent as to the defendant's liability when he is acquitted, which is construed to mean that he is not liable in that eventuality. Land v. Jolley, 175 Ga. 788, 166 S.E. 217 (1932); Childers v. Commonwealth, 171 Va. 456, 198 S.E. 487 (1938); State v. Faulkner, 75 Wyo. 104, 292 P. 2d 1045 (1956). In misdemean-or cases \\u2014and reckless driving is a misdemeanor; Ark. Stat. Ann. \\u00a7 75-1003 and 1004 (Repl. 1957)\\u2014the county is not liable for the justice's fees. Section 43-2405. Thus the situation falls within the ban of the Tumey case.\\nThe State argues that the justice of the peace can recover fees and costs in any event, because the statutes require the prosecutor in misdemeanor cases to give bond for the payment of all costs. Section 44-301. We have held, however, that the bond requirement does not apply wheu the prosecutor is a law enforcement officer acting in the performance of his duties. Coger v. City of Fayetteville, 239 Ark. 688, 393 S.W. 2d 622 (1965); Thebo v. State, 161 Ark. 619, 256 S.W. 381 (1923). We adhere to that view, because obviously a police officer ought not to be required to give a bond for costs as a result of having issued a traffic ticket. Hence the cost-bond statute does not render inapplicable the principle of the Tumey case.\\nOf course the fact that a justice of the peace would have a pecuniary interest in a judgment of conviction, under \\u00a7 43-2405, does not prevent him from exercising the jurisdiction in misdemeanor cases given to him by \\u00a7 43-1405 if he elects to serve without compensation either upon a conviction or upon an acquittal. It is appropriate for us to point out that additional legislation on the subject seems to be needed.\\nAffirmed.\"}"
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diff --git a/arkansas/1609164.json b/arkansas/1609164.json
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+"{\"id\": \"1609164\", \"name\": \"Harvey v. Ledbetter\", \"name_abbreviation\": \"Harvey v. Ledbetter\", \"decision_date\": \"1951-06-04\", \"docket_number\": \"4-9457\", \"first_page\": \"27\", \"last_page\": \"35\", \"citations\": \"219 Ark. 27\", \"volume\": \"219\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T00:29:21.630692+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Harvey v. Ledbetter.\", \"head_matter\": \"Harvey v. Ledbetter.\\n4-9457\\n240 S. W. 2d 18\\nOpinion delivered June 4, 1951.\\nRehearing denied June 25, 1951.\\nMoore, Burrow, Chowning & Mitchell, for appellant.\\nCarl Langston and Philip DeSalvo, for appellee.\", \"word_count\": \"2314\", \"char_count\": \"13088\", \"text\": \"Ed. F. McFaddin, Justice.\\nThis is a suit filed on behalf of the appellee, Clifford Paul Ledbetter, a minor, seeking, inter alia, to redeem from tax sale a tract of 2% acres, hereinafter called \\\"the property.\\\" From a decree of the Chancery Court allowing the minor to redeem, appellants bring this appeal in which they claim, inter alia, that the minor had no title on which to base a redemption.\\nIn 1925 the Twin City Bank conveyed the property to C. W. Letbetter and Flora B. Letbetter, his wife. In December, 1932, C. W. Letbetter- and Flora B. Letbetter executed, acknowledged and delivered a deed of the property to their son, J. Clifford Ledbetter. Appellants claim that J. Clifford Ledbetter and Lois Ledbetter, his wife, contemporaneously executed and delivered an undated and unacknowledged deed of reconveyance of the same property to C. W. Letbetter and Flora B. Letbetter, his wife. Appellees deny the execution, as well as the delivery, of the said deed of reconveyance; and\\u2014as we see it\\u2014 the decision in this case turns on the fact question, whether such deed of reconveyance was actually executed and delivered.\\nJ. Clifford Ledbetter died intestate in 1935, survived by his wife, Lois Ledbetter, and one son, Clifford Paul Ledbetter. The said widow and minor are the appellees. The property forfeited to the State for nonpayment of 1938 taxes; and the tax title is now held by the appellants, Y. T. Harvey and Kichard H. Burleson. Mrs. Plora B. Letbetter died in 1948; and thereafter her husband, C. W. Letbetter (also one of the appellants), conveyed all his interest in the property to V. T. Harvey.\\nThe appellees' theory of the case is: (a) that J. Clifford Ledbetter was the owner of the property at the time of his death in 1935; (b) that the property forfeited for taxes in 1938; and (c) that the minor, Clifford Paul Led-better, has a right, under \\u00a7 84-1201, Ark. Stats., to redeem from the tax sale, even if the forfeiture for taxes was valid. The appellants' theory is: (a) that J. Clifford Ledbetter and wife executed and delivered the deed of reconveyance to C. W. Letbetter and Flora B. Letbetter; (b) that J. Clifford Ledbetter thereby conveyed all interest in the property, and his minor son, Clifford Paul Led-better, has no title on which to base the redemption from the tax sale ; (c) that C. W. Letbetter, as surviving spouse and owner of the estate of entirety, conveyed the property to the appellant, Harvey, who also has the tax title; and (d) that appellees have no interest in the property.\\nThe foregoing are the main and salient facts. There are other matters which cloud the issues. One is the void appointment by the Pulaski Probate Court of Mrs. Flora B. Letbetter, as administratrix of the estate of J. Clifford Ledbetter, and her attempted private sale of the property to V. T. Harvey. This void appointment and private sale are explained by the attorney who handled the matter and he is not an attorney of record in this Court. The attorney was not fully informed as to the facts. Another matter is the testimony of Mrs'. Lois Ledbetter and one of her relatives, that J. Clifford Ledbetter paid $2,500 in cash to his parents for the deed to the property. There is also the testimony of Mrs. Lois Ledbetter that her signature on the deed of reconveyance is a forgery. This testimony will be discussed hereinafter.\\nIn addition to insisting that there was execution and delivery of the said deed of reconveyance, the appellants have also argued the effect of Act 423 of 1941 on \\u00a7 84-1201, Ark. Stats.: that is to say, (a) appellants urge that the minor, Clifford Paul Ledbetter, cannot redeem from the tax sale because the tax sale proceedings were confirmed by the Chancery Court under \\u00a7 84-1315, el seq., Ark. Stats., in 1947; and (b) the appellants contend that such confirmation decree cut off the minor's right to redeem. In making these contentions, appellants necessarily contend that Act 423 of 1941\\u2014which amended \\u00a7 8719, Pope's Digest\\u2014had the effect of impliedly cancelling the minor's right to redeem, as allowed by \\u00a7 84-1201, Ark. Stats. Mr. Justice Holt agrees with the appellants in the contentions stated in this paragraph; and for those reasons only, he votes to reverse the Chancery decree.\\nWe of the majority hold that a minor's right to redeem under \\u00a7 84-1201, Ark. Stats., was not cut off by said Act 423 of 1941; but we have reached the conclusion that the deed of reconveyance to C. W. Letbetter and Flora B. Letbetter was actually signed by J. Clifford Ledbetter and Lois Ledbetter and was actually delivered to the grantees, C. W. and Flora B. Letbetter; and that such execution and delivery of the deed of reconveyance left the minor appellee no title with which to maintain this suit. For these reasons we hold that the Chancery decree should be reversed.\\nHere are some of the reasons impelling the conclusions reached:\\n(1)\\u2014In 1932 J. Clifford Ledbetter lived in Little Rock and was engaged in the business of making bonds for persons arrested and charged with crimes. He had no real estate in his own name, and he persuaded his mother and father to deed to him the property here in dispute, in order that he could be shown as an owner of real property in Pulaski County. Carlos Letbetter, a brother of J. Clifford Ledbetter, and a son of C. W. and Flora B. Letbetter, testified by deposition:\\n' ' Q. Now, did your mother and father, do you know, convey this property to your brother, J. Clifford?\\n\\\"A. Yes, I was present the day my brother made her a proposition of deeding the property to him so he could make additional bonds, and he in turn made a deed back to mother, and that this was for their protection, he said they could record the deed at any time.\\n\\\"Q. Did you see the deed in your mother's possession?\\n\\u00a3<A. Yes, I did, but I did not pay particular attention.\\n' ' ' Q. But you do know it was delivered by your brother to her?\\n\\u00a3\\u00a3A. Yes, sir.\\n\\u00a3\\u00a3Q. Was your brother's wife, Lois Ledbetter, present when this conversation was had between your mother and your brother ?\\n\\u00a3\\u00a3A. No, she wasn't.\\n\\u00a3\\u00a3Q. Where was the deed made up, do you know?\\n\\\"A. That I could not say for sure; I believe it was Joe Wills who made those deeds.\\n\\u00a3\\u00a3Q. Handing you this instrument marked Exhibit \\u00a3B' heretofore identified as a warranty deed, I ask if that is your brother's signature?\\n\\\"A. Yes, it is without a doubt. He always made his J and C with a sort of flourish, and capitalized the B after the d.\\n\\u00a3\\u00a3Q. Are you acquainted with your sister-in-law's signature ?\\n\\u00a3\\u00a3A. Not very well; apparently it is her signature as I remember it.\\n\\u00a3 ' Q. What did your brother say to your mother with relation to the payment for this property?\\n\\\"A. Well, there was no agreement made as to the payment in the transfer of this property because mother was doing it only as a favor to him in order to make additional bonds.\\n\\\"Q. What did he say regarding getting it back?\\n\\\"A. He said that in making the two deeds that any time she wanted to she could record her deed and the property would automatically be hers again.\\\"\\n(2)\\u2014C. W. Letbetter\\u2014father of J. Clifford Ledbetter and grandfather of the minor, Clifford Paul Ledbetter \\u2014testified by deposition that as engineer of the Missouri Pacific Railroad Company on the Sunshine Special trains, he was out of the city each day and necessarily left business matters to his wife, Flora B. Letbetter. He could not recall the details of the reconveyance of the property but did testify:\\n\\\"Q. Did your son Clifford pay you anything for this property?\\n\\\"A. Not one cent I remember of.\\n\\\"Q. What was the reason you conveyed this property to your son?\\n\\\"A. So he could own some property in order to go into business.\\n\\\" Q. In other words, did he tell you it was necessary he own some property to qualify as a surety?\\n\\\"A. That is what I remember.\\n\\\"Q. He did not own other property in the State of Arkansas ?\\n\\\"A. I don't think so.\\n' ' Q. And you conveyed it for that purpose ?\\n\\\"A. Yes, sir.\\n\\\"Q. Referring to the deed marked Exhibit 'B' signed by your son and wife, do you recall whether that deed'was delivered to you or to Mrs. Letbetter,\\u2014\\n\\\"A. I don't remember distinctly but I was simply giving Mm tbe property to use for the surety bond business and I believe he did execute a deed and give it back to me. ' '\\n(3) \\u2014All of the testimony of Mrs. Lois Ledbetter is considerably weakened by the fact that she denied that she ever signed the deed of reconveyance to C. W. Let-better and Flora B. Letbetter. Some of her admittedly genuine signatures were introduced in evidence, as also was the original deed of reconveyance; and a handwriting witness of considerable experience, after comparing the admitted signatures with the disputed one, testified that it was his opinion that the disputed signature was the genuine signature of Mrs. Lois Ledbetter. All of these instruments have been examined by us; and we believe the testimony of the handwriting witness to be true. With Mrs. Lois Ledbetter's testimony discredited on the matter of her signature, then her testimony on other vital points is considerably weakened.\\n(4) \\u2014The original deeds are in the transcript, and an examination of them has been most informative-\\u2014i. e. (a) the deed from C. W. Letbetter and wife to J. Clifford Ledbetter; and (b) the deed of reconveyance from J. Clifford Ledbetter and Lois Ledbetter to C. W. Letbetter and Flora B. Letbetter. These deeds most convincingly establish that they were prepared on the same typewriter by the same person and at the same time. The attorney alleged to have prepared the deeds has been dead several years; but the deeds are mute evidence of their own genuineness. It is true that the deed of reconveyance from J. Clifford Ledbetter and Lois Ledbetter to C. W. Let-better and Flora B. Letbetter is undated and unacknowledged; but these omissions do not affect the validity of the deed between the parties. A deed delivered passes the title between the parties though without date or acknowledgment, as the deed takes effect from delivery. See Floyd v. Ricks, 14 Ark. 286, 58 Am. Dec. 374, and Williams v. Kitchell, 212 Ark. 114, 204 S. W. 2d 873. See also 16 Am. Jur. 472.\\n,. (5')\\u2014Finally, the testimony is most convincing as to the delivery of the deed of reconveyance to C. W. Let-better and Flora B. Letbetter. Carlos Letbetter testified that he saw this deed in the possession of his mother, Mrs. Flora B. Letbetter, in her lifetime. After her death the deed was found in her trunk, along with (a) the deed whereby she received the property from the Twin City Bank, and (b) the deed that she and her husband executed to J. Clifford Ledbetter. These three deeds were in between the pages of the abstract of the property. Thus the disputed deed of reconveyance (i. e., from J. Clifford Ledbetter and wife to C. W. Letbetter and Flora B. Let-better) was found in the possession of the grantee, Flora B. Letbetter.\\nIn Morton v. Morton, 82 Ark. 492, 102 S. W. 213, Mr. Justice Wood, speaking for this Court, said:\\n\\\"The production of a deed by the grantee is prima facie evidence of its delivery. 2 G-reenl. Ev. \\u00a7 257; Maynard v. Maynard, 10 Mass. 455; Hatch v. Haskins, 17 Me. 391; Games v. Stiles, 14 Peters, 322, 10 L. Ed. 476.\\n\\\"In Tunison v. Chamblin, 88 Ill. 378, it is said: 'When a deed, duly executed, is found in the hands of a grantee, there is a strong implication that it has been delivered, and only clear and convincing evidence can overcome the presumption.' See, also, Ward v. Dougherty, 75 Cal. 240, 17 Pac. 193, 7 Am. St. Rep. 151; Griffin v. Griffin, 125 Ill. 430, 17 N. E. 782. See Haskill v. Sevier, 25 Ark. 152. ' '\\nTo the same effect see Carter v. McNeal, 86 Ark. 150, 110 S. W. 222, and Ellis v. Shuffield, 202 Ark. 723, 152 S. W. 2d 535.\\nIn the case at bar we conclude that the preponderance of the evidence establishes that J. Clifford Ledbetter and Lois Ledbetter, his wife, actually executed and delivered the deed which reconveyed the property to C. W. Letbetter and Flora B. Letbetter; that with the title thus reconveyed to C. W. Letbetter and Flora B. Letbetter, there remained no title in J. Clifford Ledbetter for his minor son to inherit from him; that the minor has no title to use as a basis for his attempted redemption of the tax title from Harvey; and that since C. W. Let-better, as surviving spouse of the entirety estate, has executed a deed to Harvey, his title should prevail.\\nTherefore, the decree of the Chancery Court is reversed and the cause is remanded, with directions to enter a decree in accordance with this opinion.\\nThe parents spelled the family name \\\"Letbetter.\\\" The son spelled it \\\"Ledbetter.\\\" The evidence contains explanation of the reason for the difference in spelling; but we regard the explanation as immaterial. In this opinion we will preserve the difference in spelling.\\nSee Bowles v. Dierks Lumber & Coal Co., 217 Ark. 892, 233 S. W. 2d 632.\"}"
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diff --git a/arkansas/1611997.json b/arkansas/1611997.json
new file mode 100644
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+"{\"id\": \"1611997\", \"name\": \"Berkley v. Rice\", \"name_abbreviation\": \"Berkley v. Rice\", \"decision_date\": \"1951-02-26\", \"docket_number\": \"4-9370\", \"first_page\": \"429\", \"last_page\": \"433\", \"citations\": \"218 Ark. 429\", \"volume\": \"218\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T23:08:59.223720+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Berkley v. Rice.\", \"head_matter\": \"Berkley v. Rice.\\n4-9370\\n236 S. W. 2d 714\\nOpinion delivered February 26, 1951.\\nJohn J. Cravens, for appellant.\\nDavid L. Ford and Marie E. Woolsey, for appellee.\", \"word_count\": \"1111\", \"char_count\": \"6488\", \"text\": \"Grieein Smith, Chief Justice.\\nThe controlling issue is whether the indorsement on a note showing, prima facie, that $100 had been paid, tolled the statute of limitation, thus entitling the holder to a lien on certain lands for the purchase price. It was stipulated that unless the note were barred the realty should be charged with the obligation.\\nA. E. Rice, plaintiff below and appellee here, was a brother of Mrs. Lydia Berkley, who died in November, 1948. Appellee and other heirs of their father and mother, W. E. and S. E. Rice, sold to Mrs. Berkley about 215 acres they had inherited. The deed was executed in 1920. Appellee accepted his sister's note for $1,333.33. Some payments were made and there were renewals, the last for $1,808.23, dated November 1,1936, and due eleven months later. Payment of $6.40 by check is shown as of July 6, 1937. The next indorsement is \\\"Nov. 14, 1947, by cash $100.\\\"\\nOn January 12th, 1948, Mrs. Berkley deeded the property to her two children: James W. Almond and Venia Shelby. Appellee brought suit while his sister was living, but she died without filing an answer. The cause was prosecuted as an action in rem and resulted in a decree fixing a lien on 109 acres claimed by James Almond under his mother's deed. Mrs. Shelby settled with appellee, procuring a release and dismissal. Her title to 106 acres is not questioned. Almond and his wife have appealed from a decree that with interest $2,885.63 was due on the note, and from an order directing sale of the property to satisfy the judgment.\\nNeither of the appellant's nor any of their witnesses had personal knowledge of any directions given by Mrs. Berkley concerning the $100 payment. Appellee had not questioned his sister's right of possession throughout the years, but testified that his sister had frequently told him the land was to stand good for the debt. Appellee moved onto the farm in 1945 with Mrs. Berkley's permission, remaining about sixteen months. The roof of the house was in bad shape and was replaced by appellee at a cost of $125 exclusive of his own labor. Relations with Mrs. Berkley were such that he assumed the improvement so made would balance fair rentals, but nothing was said by either concerning this item. Mrs. Berkley paid taxes for two years, tailing receipts in appellee's name. The receipt for 1946 was mailed to appellee by his sister who in a letter said that she had been to Ozark [on \\\"Wednesday the 5th\\\"] where taxes were paid, \\\"and I will send you the receipt.\\\" Admissibility of this testimony was questioned on the ground that the letter did not show what year was referred to. On redirect examination appellee testified that the 1946 receipt came in an envelope postmarked 1947. The other receipt covered 1945 taxes.\\nWhen appellee moved from the farm and returned to Charleston he left some of his personal belongings. Shortly thereafter Mrs. Berkley came to appellee with Harley Owens \\\"and wanted me to rent him the place, . . . so I let him have the place [for a year for $100\\\"]. On former occasions \\u2014 before the note was renewed in 1936\\u2014 Mrs. Berkley had permitted appellee to take such things as live stock, etc., and apply the value on the debt. When Owens paid the rent to appellee he applied it as a credit \\u2014 \\\"just like former transactions had been handled.\\\" In general, appellee's explanations were that Mrs. Berkley had always acknowledged the debt and contemplated that money or its equivalent coming into appellee's hands would be retained for credit purposes. There was no question in appellee's mind regarding Mrs. Berkley's intention that the rent payment was to be retained by him \\u2014 and, as he expressed it, ' ' that was all she owed me. ' ' With knowledge that the rent had been paid and retained by appellee Mrs. Berkley did not ask for an accounting.\\nAppellants, in contesting the Chancellor's finding that the statute of limitation was tolled by the rent payment, cite our holding in Buss v. Cooley, 205 Ark. 42, 167 S. W. 2d 867. We there said that an admission of a barred debt may be inferred from a partial payment, but [a promise to pay] is not to be implied where the payment is accompanied by circumstances or declarations of the debtor showing it was not his intention to acknowledge the debt or to pay the balance. But in Street Improvement District No. 113 of Hot Springs v. Mooney, 203 Ark. 745, 158 S. W. 2d 661, it was held that parol proof is admis- ' sible to show that, as between debtor and creditor, but one obligation exists, \\\"thus identifying the debt to which the promise related.\\\" In the Mooney case the court quoted with approval (p. 751) the statement from American and English Encyclopedia of Law that a mere acknowledgment of a claim as an existing obligation \\\"is such an admission as the law will imply therefrom a new promise to pay, which will start the statute anew, when it is not accompanied by anything negativing the presumption of an intention to pay the debt. ' '\\nWood on Limitations, vol. 1 (4th Ed.), p. 344, says that where subsistence of a debt is acknowledged certain requisites are indispensable, the first being that the acknowledgment must be in terms sufficient to warrant the inference of a promise to pay, hence \\\". . . the theory upon which the courts proceed is that the old debt forms a good consideration for a new promise, either express or implied, and that any clear and unequivocal admission of the debt as an existing liability carries with it an implied promise to pay, unless such inference is rebutted either by the circumstances or the language used.\\\"\\nAlthough appellee's testimony will not be regarded as undisputed \\u2014 he being an interested party \\u2014 there is no affirmative evidence, other than implications that might arise from Mrs. Berkley's deed, contradicting the assertion that she repeatedly told appellee the property was to pay the debt. The attending circumstances not only attest Mrs. Berkley's willingness that the rent money be retained by appellee, but imply a recognition of the old obligation. A fair inference is that in taking Owens to appellee and permitting the money to be paid to him, the debtor intended that the rent should apply on the old debt; therefore the Chancellor correctly sustained appellee's version of the transactions, and the decree must be affirmed. It is so ordered.\"}"
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diff --git a/arkansas/1616742.json b/arkansas/1616742.json
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+"{\"id\": \"1616742\", \"name\": \"In the Matter of Uniform Rules For Circuit and Chancery Courts\", \"name_abbreviation\": \"In re Uniform Rules for Circuit & Chancery Courts\", \"decision_date\": \"1976-12-13\", \"docket_number\": \"\", \"first_page\": \"782\", \"last_page\": \"784\", \"citations\": \"260 Ark. 782\", \"volume\": \"260\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T22:52:05.619868+00:00\", \"provenance\": \"CAP\", \"judges\": \"Byrd, J., dissents because he challenges the court\\u2019s authority to promulgate the rule.\", \"parties\": \"In the Matter of Uniform Rules For Circuit and Chancery Courts\", \"head_matter\": \"In the Matter of Uniform Rules For Circuit and Chancery Courts\\nDecember 13, 1976\", \"word_count\": \"813\", \"char_count\": \"4472\", \"text\": \"PER CURIAM\\nThe following is adopted as Rule 17 of the Uniform Rules for Circuit and Chancery Courts:\\nSec. 1. Whenever possible the necessity for election of special judges should be avoided by utilizing exchanges of circuits pursuant to Art. 7, \\u00a7 22 of the Constitution of Arkansas and Ark. Stat. Ann. \\u00a7 22-340 (Repl. 1962) or by assignment of a judge by the Chief of the Judicial Department pursuant to Ark. Stat. Ann. \\u00a7 22-142 (Supp. 1975). The procedures set out in the succeeding sections of this rule shall be utilized only where no exchange of circuits and no assignment of a judge has been made.\\nSec. 2. If it becomes necessary to elect a special judge of any circuit or chancery court in any county, notice shall be given to the practicing attorneys in that county by the clerk of the court in the most practical manner under the circumstances. Notice may be given by posting notice in a public place in the courthouse where the court is held or by telephone. The clerk may use both methods of giving notice to assure that as many attorneys as possible receive notice of the election. Personal notice must be given to all attorneys who have indicated to the clerk, in writing, that they desire personal notice when an election is to be held.\\nSec. 3. Whenever the judge of a circuit court shall fail to attend on the first day of a term of court, or the office is vacant on that day, the attorneys shall meet at 10:00 a.m. on the second day of the term in the courtroom where the court is held, to elect a special judge. Whenever a judge of a chancery court shall fail to attend on any day scheduled for the holding of that court according to the annual court calender prescribed by Ark. Stat. Ann. \\u00a7 22-406.2 (Supp. 1976), and whenever the judge of a circuit court shall fail to attend on any day scheduled for the holding of that court after the first day of the term, the attorneys shall meet at 10:00 a.m. in the courtroom where said court is held to elect a special judge. The attorneys present in the courtroom shall elect one of their number as special judge. The election shall be conducted by the clerk of the court, who will accept nominations from the attorneys present. The election shall be by secret ballot. The attorney receiving a majority of the votes cast shall be declared elected as special judge of the court. He shall immediately be sworn in by the clerk and shall immediately thereafter enter upon the duties of the office.\\nSec. 4. No attorney shall be elected special judge who is not an attorney regularly engaged in the practice oflaw in the State of Arkansas and duly licensed in this state to do so, and who is not a resident possessed of the qualifications required of an elector of this state, whether registered to vote or not. An attorney not qualified to serve as special judge shall not be permitted to vote in apy election held under this rule.\\nSec. 5. The authority of a special circuit judge elected after the commencement of a term shall extend only to those cases which, at the time of his election, are pending in the court over which he is to preside.\\nSec. 6. In a circuit court, a special judge shall serve until the end of the term during which he was elected or until the regular judge appears. If the regular judge does not appear prior to or at the beginning of a new term of the court, and there has not been an exchange of circuits or assignment of another judge by the Chief of the Judicial Department, another special judge shall be elected pursuant to this rule. In a chancery court, the special judge elected shall serve until the regular judge appears or until the Governor appoints a judge pursuant to Ark. Stat. Ann. \\u00a7 22-437 and 22-438 (Repl. 1962) and the appointee has taken office.\\nSec. 7. Where there is a vacancy in the office of circuit or chancery judge by reason of death of the judge, either at the time of the election of the special judge, or during the time the special judge would otherwise serve, the special judge elected under this rule or the judge assigned by the Chief Justice shall continue to serve as such until the Governor makes an appointment to fill the vacancy and the appointee has taken office.\\nSec. 8. For purposes of this rule, each division of a court in a county shall be considered to be a separate court.\\nByrd, J., dissents because he challenges the court's authority to promulgate the rule.\"}"
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diff --git a/arkansas/1621222.json b/arkansas/1621222.json
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index 0000000000000000000000000000000000000000..bd4f587c6bcd09163e3b9b1a966e2c672729117b
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+"{\"id\": \"1621222\", \"name\": \"ARKANSAS STATE HIGHWAY COMMISSION v. E. L. PERSON et ux\", \"name_abbreviation\": \"Arkansas State Highway Commission v. Person\", \"decision_date\": \"1975-06-30\", \"docket_number\": \"75-39\", \"first_page\": \"379\", \"last_page\": \"387\", \"citations\": \"258 Ark. 379\", \"volume\": \"258\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T17:43:25.889567+00:00\", \"provenance\": \"CAP\", \"judges\": \"Byrd, J., concurs in the result.\", \"parties\": \"ARKANSAS STATE HIGHWAY COMMISSION v. E. L. PERSON et ux\", \"head_matter\": \"ARKANSAS STATE HIGHWAY COMMISSION v. E. L. PERSON et ux\\n75-39\\n525 S.W. 2d 77\\nOpinion delivered June 30, 1975\\nThomas B. Keys, Philip N. Gowen, for appellant.\\nLightle, Tedder, Hannah & Beebe, for appellee.\", \"word_count\": \"2496\", \"char_count\": \"14752\", \"text\": \"John A. Fogleman, Justice.\\nAppellees recovered judgment for $56,000 against appellant for the taking of 3.32 acres of a 4.47 acre tract by eminent domain for construction of a controlled access highway to be known at Searcy Bypass. The property was located on U.S. Highway 67, two miles from Searcy. It had a highway frontage of 660 feet and was the site of a truck stop. All of the improvements, consisting of a rest\\u00e1urant and service station, were located on the part taken. Neither appellant's expert value witnesses nor those called by appellees found any sales that were actually comparable, and appellant's expert appraisal witness testified that there were none, although he referred to and relied upon one he called \\\"most comparable\\\" because it was the only commercial sale he found along the highway. For reversal, appellant lists three points which will be discussed in the order listed by appellant.\\nI\\nTHE COURT ERRED IN PERMITTING WITNESSES FOR THE LANDOWNER TO TESTIFY TO A SALE WHICH THEY ADMITTED REFLECTED A VALUE CREATED BY THE HIGHWAY CONSTRUCTION, AND WHICH THEY CONSIDERED IN ARRIVING AT THEIR OPINIONS AS TO THE BEFORE VALUE OF THE LANDS INVOLVED.\\nThe landowners called two expert witnesses on values. They were Tom Quattlebaum and Nick D'Auteuil. Quattlebaum stated that, in his opinion, the fair market value of the property before the taking was $67,300, and after the taking, $1,300. On cross-examination he stated that the depreciated value of the improvement was $44,800 and he assigned a value of $22,500, or roughly $5,000 per acre to the land. When asked how he arrived at that figure, Quattlebaum stated that he made an extensive study of all the land sales in the complete area and found that the land was closely held and sales erratic, ranging from $1,000 to $17,000 per acre. When asked where there was a $17,000 per acre sale, the witness pointed out a tract on an off-ramp of an interchange on the interstate highway. When further asked if he took that sale into consideration in arriving at his $5,000 value, he answered affirmatively. He also admitted that the highway construction caused that sale. Appellant's motion that the court admonish the jury to disregard that sale was denied.\\nLater, still on cross-examination, Quattlebaum stated that he could not find a sale that was truly comparable, so he took an overall view of the prices which ranged from \\\"a thousand to seventeen, twenty thousand dollars an acre. \\\" No motion to strike the value testimony of this witness, insofar as the land itself was concerned, was ever m\\u00e1de.\\nD'Auteuil stated his opinion that the fair market value of the property immediately before the taking was $75,500 and that the remaining 1.15 acres had a value of $1,500. He valued the land at $32,500, or approximately $8,000 per acre, but preferred to put it upon the basis of $50 per front foot. He testified on cross-examination that he searched the entire area but was unable to find anything comparable that had been sold, so' he started looking for comparable sales of commercial property that had sold about the time of the taking. When asked to tell of some of the sales he found, the third one he enumerated was the tract on .the interchange ramp. He was certain that the location of the interchange influenced that value. He admitted that, at the moment, he knew of no sale on Highway 67 that would reflect a value of $8,000 per acre other than the one influenced by the interchange, and that it had sold for $2,800 per acre about a year prior to the condemnation. Appellant moved to strike the value testimony of the witness as to this land because he considered the sale influenced by the highway construction and on the ground that he had not given a reasonable factual basis for the values he assigned to the land.\\nE. L. Person gave his opinion that the property was worth $90,000 before the taking and $1,000 after. He valued the land at $10,000 per acre. He referred to the same sale at the interchange ramp. Appellant moved to strike the landowner's testimony because he demonstrated no reasonable factual basis for his opinion as to value.\\nWe are unable to say it was shown that any of these witnesses had no fair or reasonable basis for his value testimony. But we need not elaborate upon other testimony, because the sole ground upon which appellant asks us to reverse the judgment is that the witnesses testified relative to a sale influenced by the highway construction.\\nThe qualifications of these witnesses are not questioned. Appellant had the burden of showing that there was no reasonable or logical basis whatever for their opinions. Arkansas State Highway Commission v. Bane, 250 Ark. 142, 464 S.W. 2d 603; Arkansas State Highway Commission v. Jones, 256 Ark. 40, 505 S.W. 2d 210; Arkansas State Highway Commission v. Stobaugh, 247 Ark. 231, 445 S.W. 2d 511; Arkansas Louisiana Gas Company v. Hardgrave, 252 Ark. 257, 478 S.W. 2d 772. The sale of the property along the ramp was only one item bearing upon the baisis of the values assigned by them to the property before the taking, so this factor would not justify striking the testimony, even though it would be significant as to the weight to be accorded it. Arkansas State Highway Commission v. Pruitt, 249 Ark. 682, 460 S.W. 2d 316; Arkansas State Highway Commission v. Sargent, 241 Ark. 783, 410 S.W. 2d 381. Consideration of a sale which would be impermissible direct evidence of value does not require that a landowner's or expert's opinion testimony be stricken where it is not based solely on that sale. Arkansas State Highway Commission v. Christello, 255 Ark. 717, 502 S.W. 2d 494; Arkansas State Highway Commission v. Potts, 240 Ark. 506, 401 S.W. 2d 3; Arkansas State Highway Commission v. Parks, 240 Ark. 719, 401 S.W. 2d 732, 26 A.R. 3d 775. Even though testimony pertaining to this sale might not have been admissible on direct examination, the fact that consideration was given to it was disclosed on cross-examination. In considering this sort of situation in Arkansas State Highway Commission v. Russell, 240 Ark. 21, 398 S.W. 2d 201, we referred to a holding that an expert witness could and should take into account a matter not independently admissible, quoting the language of Judge Learned Hand that it would be absurd to exclude a qualified expert's appraisal because he had considered inadmissible evidence and that he was allowed to appraise property because he was an expert and able to give proper weight to all data. Under authority of Russell, appellant was not entitled to have the value testimony stricken or to have the jury admonished not to consider the particular testimony. It should be noted that the witness involved in Russell was the landowner.\\nIt has been said that such a prohibition goes against the introduction of testimony and not against the knowledge a witness may have, so that it is not error to refuse to strike the testimony of a qualified expert witness when cross-examination reveals that he took into consideration his knowledge of sales, evidence of which was not admissible. Arkansas State Highway Commission v. Kennedy, 234 Ark. 89, 350 S.W. 2d 526.\\nThis case differs from Arkansas State Highway Commission v. Griffin, 241 Ark. 1033, 411 S.W. 2d 495, relied upon by appellant, and its companion, Arkansas State Highway Commis sion v. Cromer, 242 Ark. 462, 414 S.W. 2d 90 in which we held that testimony as to enhanced value of property taken occasioned by construction, or contemplated construction of the very improvement for which it was taken was inadmissible, because it included an element of value which is not properly a part of just compensation. No witness in this case indicated that he thought the Person property had been enhanced in value by the construction of the new highway or that this contemplated construction had any impact on its value, and it would appear that sales unrelated to the highway construction at prices as low as SI,000 influenced the witnesses in arriving at their opinions as to land values just as much as the SI7,000 sale did. It was only when there were no comparable sales, in the opinion of these experts, that they made a survey for other sales. Nothing anyone could do would ever take the knowledge they had thus gathered out of their minds.\\nOf couse, the principal qualification of a landowner to express an opinion is his familiarity with the property. When as here, he qualifies in this respect, the adverse party must show, by cross-examination that there is no reasonable or logical basis for his testimony. Arkansas State Highway Commission v. Sargent, 241 Ark. 783, 410 S.W. 2d 381; Arkansas State Highway Commission v. Shields, 249 Ark. 710 460 S.W. 2d 746. It is axiomatic that a landowner has more leeway than does an expert in fixing values. Arkansas State Highway Commission v. Mullens, 255 Ark. 796, 502 S.W. 2d 626.\\nII\\nTHE COURT ERRED IN PERMITTING THE LANDOWNERS' WITNESSES TO TESTIFY TO THE CONTRIBUTORY VALUE OF THE IMPROVEMENTS TO THE LANDS INVOLVED WHEN SAID WITNESSES HAD NOT INSPECTED SAID IMPROVEMENTS FOR APPRAISAL PURPOSES.\\nThese witnesses were experts, and seem to have had sufficient familiarity with the improvements on the property to express an opinion on the subject. No objection was made to the testimony of Quattlebaum in this regard until he had left the witness stand. It was during the testimony of D'Auteuil that a motion was made to strike the testimony. The denial of a motion so tardily made is not such an abuse of the trial court's discretion as would call for a reversal. Arkansas State Highway Commission v. Stallings, 248 Ark. 1207, 455 S.W. 2d 874. But Quattlebaum had known the property for about 10 years and had been in the buildings many times, having gone to the restaurant to eat and drink coffee while in school and to eat breakfast when going duck hunting. He obtained dimensions of the buildings from drawings made by one Terrell Huff, he had talked with the owner about the details of construction and had observed photographs of the buildings, but he had never inspected the improvements for appraisal purposes before their destruction. Mr. Huff testified that he was in the real estate business and had made an inspection of the property in June 1972, at which time he made measurements of the physical improvements, both outside and inside, putting the measurements on graph paper. This paper was turned over to Quattlebaum when Huff became disabled due to defective eyesight and had to retire. The graph was introduced in evidence. There is no challenge to its accuracy.\\nD'Auteuil had been in the construction business for several years. He had occasion to patronize the restaurant because it was the only one open after midnight and he had eaten early breakfast there. Equipment from a restaurant he owned had been put in the building in 1971, and he had occasion to be about the property then. He also obtained dimensions from Huff and had viewed photographs of the buildings, the accuracy of neither of which is questioned. There is no indication that appellant's complaint that the witnesses were simply stating Huff's appraisal of the property is well founded.\\nAn expert appraiser may base his testimony, at least in part, on hearsay. Arkansas State Highway Commission v. Bradford, 252 Ark. 1037, 482 S.W. 2d 107; Arkansas State Highway Commission v. Busby, 252 Ark. 383, 479 S.W. 2d 242; Arkansas State Highway Commission v. Davis, 248 Ark. 1168, 455 S.W. 2d 97. There was no abuse of the trial court's discretion in refusing to strike the testimony of these witnesses for lack of familiarity with the improvement. See Arkansas State Highway Commission v. Pullen, 243 Ark. 759, 421 S.W. 2d 890.\\nIll\\nTHE COURT ERRED IN PERMITTING THE LANDOWNER TO TESTIFY TO THE CONTRIBUTORY VALUE OF THE IMPROVEMENTS TO HIS LANDS WITHOUT GIVING A COST LESS DEPRECIATION FIGURE.\\nAppellee Person testified that he acquired the property in 1955. He related the history and described the type and nature of construction in considerable detail before expressing his opinion as to the total value of the property before the taking. He valued the buildings at $54,000. He stated that the cost of construction was $42,000. He felt that the improvements were worth more when demolished than when they were built, because the labor of his family and himself was not included in the cost of construction and because he had made purchases of some materials at advantageous prices. Person had once been in the building supply business. He stated that he had sold for $75,000 a building constructed at a cost of $40,000 on two inexpensive lots. Appellant moved to strike this witness's testimony as to the value placed on the improvements because the witness did not follow the proper methods in arriving at the evaluation of the improvements. This motion was not made until after Person's testimony had been concluded and appellees had rested their case.\\nAppellant relied upon Arkansas State Highway Commission v. Richards, 229 Ark. 783, 318 S.W. 2d 605, as mandating deductions for depreciation from the structural cost of buildings when testing their enhancement of the market value of a tract of real estate. This rule would certainly apply if Person had testified as to the current replacement or reproduction cost of the buildings. But he did not. He told of the original cost. It has become rather commonplace for buildings to bring a much higher price on sale than the cost of construction.\\nIt must be remembered that appellant is not objecting here to the introduction of the evidence as to cost of construction. When this evidence is admissible, as an aid to the jury in determining market value, the most that can be said about depreciation is that proper deduction must be made for depreciation by wear and tear and that the character and condition of the building are matters to be considered. See Arkansas State Highway Commission v. Richards, supra; Arkansas State Highway Commission v. Griffin, 241 Ark. 1033, 411 S.W. 2d 495. But Person gave reasons why he did not think there was any functional or economic depreciation, and it was proper for economic inflation of values to be considered. See Arkansas State Highway Commission v. Shields, 249 Ark. 710, 460 S.W. 2d 746; Arkansas State Highway Commission v. Griffin, supra. According to Person's testimony, no deduction for wear and tear was proper. There was no abuse of discretion in the court's denial of this motion to strike.\\nThe judgment is affirmed.\\nByrd, J., concurs in the result.\"}"
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diff --git a/arkansas/1633405.json b/arkansas/1633405.json
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+"{\"id\": \"1633405\", \"name\": \"Charles POE v. STATE of Arkansas\", \"name_abbreviation\": \"Poe v. State\", \"decision_date\": \"1971-09-27\", \"docket_number\": \"5608\", \"first_page\": \"35\", \"last_page\": \"39\", \"citations\": \"251 Ark. 35\", \"volume\": \"251\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T17:58:15.871505+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Charles POE v. STATE of Arkansas\", \"head_matter\": \"Charles POE v. STATE of Arkansas\\n5608\\n470 S.W. 2d 818\\nOpinion delivered September 27, 1971\\nLouis W. Rosteck, for appellant.\\nRay Thornton, Attorney General; Garner Taylor, Jr., Asst. Atty. Gen., for appellee.\", \"word_count\": \"1307\", \"char_count\": \"7196\", \"text\": \"John A. Fogleman, Justice.\\nAppellant first contends that his conviction and sentence of forgery and uttering under our habitual criminal . statute [Ark. Stat. Ann. \\u00a7 43-2328 \\u2014 2330 (Repl. 1964) (Supp. 1969)] should be reversed because that statute violates Article 2, Sections 3 and 8, of the State Constitution. We have previously sustained the statute against attacks on its constitutionality. Ferguson v. State, 249 Ark. 138, 458 S.W. 2d 383. Appellant argues, however, that the equal protection and due process clauses of the above sections have been breached in his case. He bottoms this argument upon the circuit judge's statement during trial that the judge had no experience with the statute. He contends that utilization of the statute is discretionary with the prosecuting attorney, and thus permits discriminatory application to different habitual offenders.\\nWe do not agree with this argument. The statute is not couched in language indicative of an intention that its invocation by prosecuting officers be discretionary any more than the statutes fixing punishment for the crimes themselves. The language in' all provide that one convicted \\\"shall\\\" be punished by a term of imprisonment within a prescribed range. See Ark. Stat. Ann. \\u00a7 41-1803, 1805, 1810, 1823 (Repl. 1964). Certainly the act as written is invulnerable to attacks for denial of equal protection or for violation of due process. See Graham v. West Virginia, 224 U. S. 616, 32 S. Ct. 583, 56 L. Ed. 917 (1912); McDonald v. Massachusetts, 180 U. S. 311, 21 S. Ct. 389, 45 L. Ed. 542 (1901); Moore v. Missouri, 159 U. S. 673, 16 S. Ct. 179, 40 L. Ed. 301 (1895); State v. Hicks, 213 Ore. 619, 325 P. 2d 794 (1958); State v. Bailleaux, 218 Ore. 356, 343 P. 2d 1108 (1959); Skinner v. Prather, 136 Kan. 879, 18 P. 2d 154 (1933); State v. Howell, 240 Ore. 558, 402 P. 2d 89 (1965), cert. denied, 383 U. S. 922, 86 S. Ct. 898, 15 L. Ed. 2d 676 (1966).\\nWe know that the statute has been invoked in this state in many instances. See Rowe v. State, 224 Ark. 671, 275 S. W. 2d 887; Jackson v. State, 226 Ark. 731, 293 S. W. 2d 699; McIlwain v. State, 226 Ark. 818, 294 S. W. 2d 350; Bowling v. State, 229 Ark. 876, 318 S. W. 2d 808; Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816; Higgins v. State, 235 Ark. 153, 357 S. W. 2d 499; Osborne v. State, 237 Ark. 170, 371 S. W. 2d 518; Miller v. State, 239 Ark. 836, 394 S. W. 2d 601; Cummings v. State, 239 Ark. 1027, 396 S. W. 2d 298; Walker v. State, 240 Ark. 441, 399 S. W. 2d 672; Thom v. State, 248 Ark. 180, 450 S. W. 2d 550; Flurry v. State, 248 Ark. 722, 453 S. W. 2d 402; Dolphus v. State, 248 Ark. 799, 454 S. W. 2d 88.\\nThe record does not disclose that the prosecuting attorney, in seeking application of the act in this case, acted arbitrarily, capriciously or wilfully discriminated against appellant or a class of which he was a member. We can only speculate why the circuit judge had no previous experience with the act. No support for appellant's position is disclosed other than the bare statement by the judge. The most that can be said is that there may have been some laxity in the enforcement of the act. In other jurisdictions laxity in enforcement, even though without apparent excuse, has been held insufficient to render application of such a statute to an individual defendant a denial of equal protection or due process of law, in the absence of any showing of arbitrary or capricious action or of a wilful intention to discriminate. State v. Hicks, 213 Ore. 619, 325 P. 2d 794 (1958); State v. Bailleaux, 218 Ore. 356, 343 P. 2d 1108 (1959); State v. Howell, 240 Ore. 558, 402 P. 2d 89 (1965), cert. denied, 383 U. S. 922, 86 S. Ct. 898, 15 L. Ed. 2d 676 (1966); Skinner v. Prather, 136 Kan. 879, 18 P. 2d 154 (1933); Sanders v. Waters, 199 F. 2d 317 (10th Cir. 1952); Oyler v. Boles, 368 U. S. 448, 82 S. Ct. 501, 7 L. Ed. 2d 446 (1961). See also, Ex parte Boman, 160 Tex. Crim. 148, 268 S. W. 2d 186 (1954); People v. Johnson, 412 Ill. 109, 105 N. E. 2d 766 (1952), cert. denied, 344 U. S. 858, 73 S. Ct. 98, 97 L. Ed. 666 (1952), 347 U. S. 955, 74 S. Ct. 681, 98 L. Ed. 1100 (1954), reh. denied, 347 U. S. 1022, 74 S. Ct. 873, 98 L. Ed. 1142 (1954); People v. Mock Don Yuen, 67 Cal. App. 597, 227 P. 948 (1924). It has been said that failure of a prosecutor to enforce the law as to some persons should not be converted into a defense for others charged with crime. State v. Hicks, supra. The United States Court of Appeals for the Fifth Circuit stated that it had never been held that one who is guilty of a crime cannot be punished merely because others equally guilty had not been prosecuted or convicted. Saunders v. Lowry, 58 F. 2d 158 (5th Cir. 1932). The Supreme Court of the United States has held that even conscious selectivity in enforcement of such an act which is not based upon unjustifiable standards or arbitrary classification does not offend against constitutional equal protection and due process standards. Oyler v. Boles, supra.\\nWe cannot sustain appellant's contentions on the record before us. We certainly are unwilling to say that the mere failure of prosecuting attorneys in one district of the state to previously invoke the act, whether because of lack of information of previous convictions in other cases or because of selectivity in enforcement, makes the present or subsequent application of the act a denial of equal protection or due process.\\nAppellant's remaining point for reversal is a contention that the evidence was insufficient to support the conviction. He says that the state failed to prove that he fraudulently obtained the possession of, or deprived another of, money or property or caused another to be injured in his estate or lawful right by forgery or uttering of a check. This argument is based upon testimony showing that long before the check was presented the person whose name was forged had closed his account in the bank upon which the check was drawn, that the name of the bank had been changed from that appearing on the check, and that one digit of the apparent drawer's account number was missing. The check was not paid when presented by a person identified as the defendant. Thus, says appellant, he did not deprive either the bank or the person whose name was signed to the check of any money or property or injure anyone in his estate or lawful right. The fallacy in this argument is that the forgery and uttering statutes do not require that the purpose of the forger or utterer be accomplished. The gist of both offenses is guilty intent. They are committed when a check is forged, in the first instance, and offered as genuine, in the second, with the intent to defraud, even though the fraud is not actually perpetrated. Ark. Stat. Ann. \\u00a7 41-1803, 41-1805 (Repl. 1964). Bennett v. State, 62 Ark. 516, 36 S. W. 947; Holloway v. State, 90 Ark. 123, 118 S. W. 256; Maloney v. State, 91 Ark. 485, 121 S. W. 728, 134 Am. St. R. 83, 18 Ann. Cas. 480.\\nThe judgment is affirmed.\"}"
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diff --git a/arkansas/1636849.json b/arkansas/1636849.json
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+"{\"id\": \"1636849\", \"name\": \"CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY and Charles KIRK v. Paul HUGHES, a minor, by his father and next friend, Lewis Hughes\", \"name_abbreviation\": \"Chicago, Rock Island & Pacific Railroad v. Hughes ex rel. Hughes\", \"decision_date\": \"1971-04-26\", \"docket_number\": \"5-5511\", \"first_page\": \"526\", \"last_page\": \"533\", \"citations\": \"250 Ark. 526\", \"volume\": \"250\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T19:24:23.076390+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY and Charles KIRK v. Paul HUGHES, a minor, by his father and next friend, Lewis Hughes\", \"head_matter\": \"CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY and Charles KIRK v. Paul HUGHES, a minor, by his father and next friend, Lewis Hughes\\n5-5511\\n467 S. W. 2d 150\\nOpinion delivered April 26, 1971\\n[Rehearing denied June 14, 1971.]\\nWright, Lindsey ir Jennings; By: William R. Overton, for appellants.\\nJames C. Cole, for appellee.\", \"word_count\": \"2239\", \"char_count\": \"12332\", \"text\": \"Carleton Harris, Chief Justice.\\nThis litigation relates to a railroad crossing accident. On May 24, 1968, a vehicle operated by Thelma Hughes, and in which her brother-in-law, Paul Hughes, appellee herein, was a passenger, was struck by a Chicago, Rock Island & Pacific Railroad Company train at a gravel road crossing in Malvern. Paul Hughes suffered injuries, and subsequently instituted suit against the railroad company and Charles Kirk, and Howard Smith, crewmen, for damages. On trial, the jury returned a verdict for Hughes in the amount of $20,000. From the judgment so entered, appellants bring this appeal. Two points are alleged for reversal, the first being that the trial court erred in submitting to the jury the issue of failure to keep a lookout. It is also asserted that the trial court erred in using modified versions of standard AMI instructions. We proceed to discuss these points in the order listed.\\nThelma Hughes testified that she was driving a 1967 Opel Cadet automobile, and that her son Ricky was riding in the front seat with her. Appellee was riding to the right of Ricky. The automobile was a station wagon, having one door on each side, and a lid that lifted up at the back. The back door had a handle on the outside but no handle on the inside. The three were on their way to a little league park, and Mrs. Hughes had crossed at this particular crossing before. She stated that on approaching the crossing, she came to a complete stop about ten feet from the track, heard no whistle blowing or bell ringing, and proceeded to change gears and start up on the track. The motor went dead with the automobile in about the middle of the track, the front wheels being completely over and the back wheels not having crossed the track at all. She attempted to start the car five or six times and then heard \\\"the roar and looked and saw the train coming\\\". She said that it was not traveling very fast and she attempted to start the car again, but without success. She then hollered \\\"jump\\\" and leaped out of the left side of the car, her son following immediately behind her. Paul \\\"went over the back seat\\\", but was unable to open the back door since there was no handle on the inside. The train struck the automobile, but was not traveling fast enough to overturn the vehicle, and came to a complete stop within fifty or sixty feet beyond the crossing. Appellee suffered injuries from the collision as heretofore stated.\\nWe think the court erred in submitting the issue of whether the train crew failed to keep a proper lookout. In Lovegrove v. Mo-Pac Railroad Co., 245 Ark. 1021, 436 S. W. 2d 798, we held on the question of failure to keep a constant lookout, the railroad company was entitled to a directed verdict if the undisputed testimony of the train crew reflected that such a lookout was being kept; we added that the jury might disregard the crew's testimony when it was inconsistent within itself or contrary to other accepted testimony. In the instant case, we are of the view that not only did the evidence given by the train crew show that a proper lookout was being kept, but also, the other evidence offered, on behalf of appellee, substantiated this fact.\\nWhat was the evidence? Charles Graves, classified as a brakeman, testified that he was seated on the front seat on the west side, or left-hand side of the engine. Charles Kirk is an engineer but was classified as a fireman at the time because there had been a reduction in force; however he had served as an engineer in his own right on other runs, and had passed all the requirements as an engineer. He was sitting on the right-hand side of the engine. Howard Smith is an engineer, and at the time, was observing from the left-hand side of the train. As to keeping a lookout, Graves testified:\\n\\\"Well, we came around the curve and Mr. Kirk was blowing the whistle in this curve and he made a reduction. He set the air brakes and the train slowed down and we, just as we came around the curve, I guess, I don't know approximately how far we were from the crossing, 275 to 300 feet from the Collie Road crossing \\u2014we call it the ballpark crossing, I saw this car pull up there. The car stopped right on the tracks.\\\"\\nHe said that the automobile was approximately 15 or 20 feet from the tracks when he observed it and that he pulled the emergency brake valve as soon as the car stopped, this putting \\\"the train in emergency\\\". Graves stated that the train was traveling around fifteen or fourteen miles per hour when he threw it into emergency; that it was moving about four or five miles per hour when it made contact with, the car and then traveled about an engine's length past the crossing, or 50 or 60 feet.\\nKirk testified that when the car came upon the track, he was able to see the hood and part of the front door, the train traveling around a slight curve. When asked how long it was between the time he saw the door and hood of the car and the time the train went into emergency, Kirk replied \\\"The train was in emergency. The brakeman Graves, had already pulled the emergency valve\\\". He said that he was entirely satisfied with the stop made by the train and it was the best stop that could have been made.\\nSmith testified that the train was traveling from fifteen to eighteen miles per hour as it approached the crossing; that there is a twenty mile per hour restricted speed at that portion of the track. He said that he first saw the automobile when it drove up to the crossing and stopped, and that the train was between a quarter and a third of a mile away. The witness stated that only a few seconds elapsed from the time the car pulled into view and stopped, and the train was put in emergency. His testimony was that the speed of the train was between two and three miles per hour at the time it struck the automobile.\\nThus the testimony by the members of the crew is all to the effect that the automobile was observed as soon as it could have been observed, and the train practically immediately put in emergency. The testimony of Mrs. Hughes is to the same effect. She said that after five or six attempts to start the car, she heard the roar, looked, and saw the train coming; that it was \\\"not very fast\\\". From the record:\\n\\\"Q. Was the train traveling very fast?\\nA. Well, when it come around the bend it started braking.\\nQ. Did you get any impression it was traveling at a fast speed or slow speed?\\nA. I couldn't tell how fast it was going when it come around the bend. It started slowing as it come around the bend.\\nQ. You have never measured the distance up to the bend, have you?\\nA. No, sir.\\\"\\nFurther, from the record:\\n\\\"Q. Did you see the train when it came around the bend as you were sitting on the track?\\nA. No. I was trying to start my car and heard the noise as the train started around the bend. I looked and saw it as it started around the bend.\\nQ. At that time when the train first came into sight, was it putting on its brake at that time?\\nA. Yes.\\nQ. In other words, as soon as he saw you he started putting on brakes. Is that what it amounted to?\\nA. Yes.\\nQ. Did you think the train was going to get stopped before it hit you?\\nA. Yes.\\nQ. I gather it slowed down to the point it was barely moving when it came in contact with your car?\\nA. Yes.\\nQ. Could 'y\\u00b0u hear the brakes squeaking and squealing or however you want to describe it?\\nA. Yes.\\nQ. Did they squeal all the time from the time you first saw it\\u2014could you hear that?\\nA. Just as it came around the bend it started applying his brakes.\\nQ. It kept slowing down as it got closer and kept getting slower and slower?\\nA. Yes.\\nQ. Did I understand you to say after you saw or heard the train coming around the bend you tried to start your car some more after that?\\nA. Yes.\\nQ. You know about how many times you tried to start it?\\nA. Two or three times.\\\"\\nThus, Mrs. Hughes stated that the train started braking as it came around the bend (when she first could have been observed) that it was traveling slowly; that the brakes were squealing the entire time from when first applied until the car was struck, and that it (train) was barely moving when contact was made. Appellee, Paul Hughes, was not looking and did not even know a train was approaching until his sister-in-law hollered \\\"jump\\\". We think the evidence herein set out clearly shows that there was no justification for the submission of the issue of whether a proper lookout was being maintained.\\nIt is next asserted that the court erred in giving AMI 305-A instead of following the \\\"Note On Use\\\", and giving AMI 305-B. 305-A, given, states \\\"It was the duty of the railroad company, its agents, servants and employees, before and at the time of the occurrence, to use ordinary care for the safety of Paul Hughes\\\". Appellants contend that B should have been given instead of A, 305-B reading as follows. \\\"It was the duty of all persons involved in the occurrence to use ordinary care for their own safety and the safety of others.\\\"\\nWe think appellants are correct in this contention. Several specific objections were made to the giving of 305-A, but it is sufficient to point out that the Note On Use states that A should be used when negligence on the part of the plaintiff is not an issue, and that B should be used when negligence on the part of the plaintiff is an issue. The negligence of Paul Hughes was an issue in this case, and in fact AMI 2109, instructing on comparative negligence, was given by the court at the request of appellants. The court gave no reason for using 305-A instead of 305-B, and we hold that error was committed.\\nFinally, it is asserted that the trial court erred in giving the jury a modified form of AMI 502, this modification consisting of adding a sentence to the instruction. AMI 502 reads as follows:\\n\\\"When the negligent acts or omissions of two or more persons work together as the proximate cause of damage to another, each of those persons may be found liable. This is true regardless of the relative degree of fault between them. If you find that negligence chargeable to the defendant railroad proximately caused damage to Paul Hughes, it is not a defense that some third person may also have been to blame.\\\"\\nThe court then added to this instruction the following sentence, \\\"However, in this case you are told that the negligence of Thelma Hughes, if any, cannot be chargeable to Paul Hughes\\\". We agree with appellant that this addition should not have been made, and is a clear violation of the per curiam order of this court dated April 19, 1965, wherein we stated' that if AMI contains an applicable instruction it should be used \\\"unless the trial judge finds that it does not accurately state the law\\\". The order then provides that the court shall state its reasons for refusing the AMI instruction. No reason was given by the court for adding the last sentence, and in addition to what has already been said, we think appellants are correct in stating that the addition was to the advantage of appellee. The word \\\"However\\\", according to Webster's Third New International Dictionary (Unabridged), means inter alia, \\\"nevertheless, notwithstanding\\\". In other words, it seems to qualify, or limit, the first part of the instruction, and to overly emphasize that the possible negligence of Thelma Hughes cannot be chargeable to Paul Hughes. Actually, of course, the additional sentence does not really add anything to the meaning of the instruction, for AMI 502 very definitely states that if negligence of the railroad proximately caused appellee's damages it is not a defense that some third person may also have been to blame. This \\\"third person\\\" can only have reference to Thelma Hughes, the driver of the automobile. The effect of the addition was simply to tell the jury twice that any negligence on her part could not be charged to appellee.\\nFor the reasons stated herein, the judgment of the Hot Spring County Circuit Court is reversed, and the cause remanded.\\nIt is so ordered.\\nThe court directed a verdict for Smith.\"}"
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+"{\"id\": \"1642778\", \"name\": \"Collins v. Heitman\", \"name_abbreviation\": \"Collins v. Heitman\", \"decision_date\": \"1955-12-12\", \"docket_number\": \"5-733\", \"first_page\": \"666\", \"last_page\": \"676\", \"citations\": \"225 Ark. 666\", \"volume\": \"225\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T19:37:41.731749+00:00\", \"provenance\": \"CAP\", \"judges\": \"Justice Smith dissents.\", \"parties\": \"Collins v. Heitman.\", \"head_matter\": \"Collins v. Heitman.\\n5-733\\n284 S. W. 2d 628\\nOpinion delivered December 12, 1955.\\nMartin K. Ful'lo and William H. Bonham, for appellant.\\nJohn L. Hughes, for appellee.\", \"word_count\": \"3655\", \"char_count\": \"21046\", \"text\": \"Lee Seamster, Chief Justice.\\nThis is an appeal by the appellant, from a decree of the Saline Chancery Court, which quieted and confirmed title to 40 acres of Saline County real property in the appellee, H. H. Heit man, and cancelled a prior deed to appellant, W. H. Collins, to the same property, as a cloud upon the appellee's title. The property is described as follows: southeast quarter of the northwest quarter, section 13, township 1 south, range 14 west, Saline County, Arkansas.\\nOn August 25, 1951, Mrs. Helen Thomas offered for sale at auction, certain lands owned by her, which were situated in Saline County, Arkansas. The auction sale was conducted by Ben Johnson, as auctioneer. Prior to the sale, Johnson had acquired a mortgage against the lands, taking over an indebtedness that had been negotiated by the firm of Rights ell, Collins, Barry & Company, Inc. In an effort to liquidate this indebtedness, Mrs. Thomas and Ben Johnson entered into an agreement, wherein, Johnson was to sell the Midland Farms, which was owned by Mrs. Thomas and consisting of 390 acres, at auction on terms of 50% cash and the balance due, with interest, six months thereafter. According to the terms of the contract, the proceeds of the sale were to be placed in escrow and applied to the liquidation of the indebtedness.\\nIn an instrument dated August 24,1951, Mrs. Thomas and Ben Johnson, acting through their attorneys, entered into an escrow agreement, whereby, Collins and Company, a partnership composed of John Collins and \\\"W. H. Collins, appellant herein, was designated as the escrow agent. For a fee of $500, the escrow agent was to handle all funds derived from the auction sale, and upon receipt of the purchase money, the escrow agent was to deliver to the purchasers of the lands, their deeds with title insured, and further, to pay Johnson any indebtedness owed by Mrs. Thomas on the mortgage. Any remaining money, after liquidation of the indebtedness, was to be delivered to Mrs. Thomas. Pursuant to this agreement, the auction sale was held on Saturday, August 25, 1951, at the Midland Farm premises.\\nAt the start of the auction sale, the auctioneer announced the terms and conditions governing the sale; he also gave notice that deeds for successful bidders would be available at the office of Collins and Company and could be procured after 2 P.M., Monday, August 27, 1951. This announcement also provided, among other things, that the owner of Midland Farms reserved the right to reject any bid or bids, on any lot, group of lots, or the entire farm. The appellee herein, H. H. Heitman, was the successful bidder at the sale for the 40-acre tract here in litigation, having submitted the highest bid in the sum of $5,910 and having that sum accepted by the auctioneer. Appellee reduced his bid to writing and delivered his check for one-half of this amount. His check was accepted for the required deposit, and he was issued a certificate of bid, showing the balance due on the purchase price.\\nOn the following Monday morning, August 27, 1951, a meeting was held in appellant's office, for the purpose of taking care of certain business that arose out of the auction sale. Among those persons present were, the attorney for Mrs. Thomas, the attorney for Ben Johnson, the appellant, W. H. Collins, who was the escrow agent, and other persons connected with the auction sale. At this time, the attorney for Mrs. Thomas rejected four of the bids that were received at the auction sale. One of the four bids rejected was the appellee's bid of $5,910, for the purchase of the 40-acre tract in question. On the same day, pursuant to the rejection of the bids, appellee was notified by phone that his bid had been rejected by Mrs. Thomas. His check in the sum of $2,955, which had been previously delivered by him as a down payment on his bid, was personally returned to him by Walter P. Watts, an official for the Ben Johnson Auction Company. The appellee accepted the return of his check and surrendered his certificate of bid, since he thought Mrs. Thomas had personally rejected his bid on the property.\\nSubsequently, on the same date, the appellant, W. H. Collins, submitted a bid in the sum of $6,250, for the purchase of the 40-acre tract of land in question. The attorney for Mrs. Thomas drew up an offer and acceptance; the .terms being $3,125, in cash and the balance due six months thereafter. The receipt of the earnest money was accepted by W. P. Watts, agent for Ben Johnson, and the offer was accepted in writing by the attorney for Mrs. Thomas. Mrs. Thomas was not present, nor did she have knowledge of this business transaction.\\nOn the same afternoon, appellee met Mrs. Thomas, and while conversing about the auction sale, she informed him that she had not rejected his bid on the 40-acre tract and it was her desire that appellee have the property for the purchase price bid at the auction. On the following day, Tuesday, August 28, 1951, Mrs. Thomas tendered to appellee a written statement to this effect. Shortly thereafter, the appellee met with appellant to discuss the matter of conflicting interests to the property.\\nOn August 31, 1951, Mrs. Thomas signed a letter ratifying and confirming her attorneys' acts in rejecting the four bids on August 27,1951, including the appellee's bid of $5,910, for the 40-acre tract. This letter also ratified and confirmed her attorney's act in accepting the bid of appellant, for the 40-acre tract. On September 5, 1951, Mrs. Thomas delivered to appellant a warranty deed to the property. This deed was filed for record in Saline County at 10:20 A.M. on September 10, 1951.\\nOn September 10, 1951, at 8:18 A.M., appellee filed suit against Mrs. Helen M. Thomas in the Saline Chancery Court, for specific performance of his alleged contract of sale of the 40-acre tract of land. Upon trial of the issues, the trial court found, in its decree dated May 12, 1952, that a valid sale had been made to appellee and ordered Mrs. Thomas to execute and deliver to appellee a deed to the 40-acre tract. Upon Mrs. Thomas' failure to act, the court appointed a commissioner to make the conveyance. On September 26, 1952, the commissioner executed a commissioner's deed to appellee for the 40-acre tract in question, pursuant to said decree.\\nOn October 1, 1952, appellee filed this action in the Saline Chancery Court against appellant, to set aside appellant's deed to the property in question, as a cloud upon his title. Appellee claimed title through his commissioner's deed of September 26, 1952. Appellant answered and filed a counter claim against appellee, inter posing the defense of innocent purchaser for value and without notice. The appellant claimed that his title to the property was superior to that of appellee. In a decree dated December 31, 1954, the chancellor held that appellee was the owner of the land by virtue of his purchase from Helen M. Thomas, at the auction sale conducted on August 25, 1951, and that appellee acquired title in fee by virtue of the commissioner's deed dated May 12, 1952. The chancellor further found that at the time appellant acquired his warranty deed from Mrs. Thomas, on August 27,1951, he was acting in the capacity of escrow agent for the parties, and he had actual knowledge of the sale of such lands to appellee, therefore, appellant was not a bona ficle or innocent purchaser without notice, at the time he acquired the deed to the lands from Mrs. Thomas. This appeal follows.\\nThe appellant lists three points for reversal, they are: (1) the appellee failed to prove a superior title as a matter of law; (2) the appellant was a bona fide purchaser for value; and , (3) the appellee is estopped from denying that appellant is an innocent purchaser for value.\\nThe evidence is undisputed that appellee submitted the highest bid for the 40-acre tract and this bid was accepted by the auctioneer and appellee delivered his check for the required down payment. The appellant contends that Mrs. Thomas had an indefinite time limit in which to reject the offers. However, the printed announcement merely stated \\\"that the owners of the property involved reserved the right to reject a bid or bids on any lot, group of lots, or the entire farm. ' '\\nArk. Stats. (1947), \\u00a7 68-1421 (2), covers sale by auction of personal property and provides as follows: \\\"A sale by auction is complete when the auctioneer announces its completion by the fall of the hammer, or in other customary manner: Until such announcement is made, any bidder may retract his bid; and the auctioneer may withdraw the goods from sale unless the auction has been announced to be. without reserve.\\\"\\nThe law that governs the sale of personal property by auction also governs the sale of real estate by auction. Such terms and conditions that may affect the rights of the parties must be announced and agreed upon before the completion of the sale. Unless otherwise provided, the sellers' right to reject any or all bids, must be exercised before the acceptance of the successful bid. The auctioneer is the agent of the seller and his act in accepting the bid is binding on the seller. The seller has no right to reject a bid after the bid has been accepted and the purchaser has delivered the required payment. The same rule applies to the purchaser, who has no right to reject the sale after he has submitted the successful bid and has delivered the required payment. In the instant ease, a contract was entered into when appellee's bid was accepted at the auction sale, without rejection by the seller, and appellee delivered the required payment. The contract was binding at this time.\\nIt is apparent from the record compiled in this case, that appellant and appellee trace their respective titles to Mrs. Thomas. The appellant contends that in a suit to quiet title, the plaintiff must prevail upon the strength of his record title, and, an equitable title is not sufficient against a subsequent purchaser with superior record title. In this statement of the law appellant is in error. The law governing this situation was clearly announced in Eickhoff v. Scott, 137 Ark. 170, 208 S. W. 421, where this court said: \\\"It is true, in an adversary suit, that the plaintiff must recover on the strength of his own title and not the weakness of the defendant's title. Knauff v. National Cooperage and Woodenware Co., 99 Ark. 137, 137 S. W. 823, and cases cited therein. This rule is applicable where the parties claim title from independent sources, and has no application in cases where the parties trace their respective titles to a common source. \\\"Where parties trace their title to a common source, the one must prevail who has the superior equity.\\\" Since both parties claim title through Mrs. Thomas and since appellee's title antedates and is superior to that of appellant, it necessarily follows that appellee is entitled to have same quieted.\\nThe appellant contends, in his second point, that he was a bona fide purchaser of the 40-acre tract, for value. We cannot agree with appellant. From the beginning he was closely identified with this auction sale. Appellant acquired his deed from Mrs. Thomas at a time when he was acting in the capacity as escrow agent for her, in the handling and conducting of the sale of the lands in question. In this capacity as such escrow agent, appellant had actual knowledge of the sale of said lands to appellee and therefore could not be considered a bona fide or innocent purchaser without notice at the time he acquired said deed from Mrs. Thomas. One who purchases real estate with the knowledge that another had a contract of purchase is not a bona fide purchaser, and if he acquired such knowledge at any time before payment of the consideration, he will not be protected as a purchaser in good faith. Valley Planing Mill Co. v. Lena Lumber Co., 168 Ark. 1133, 272 S. W. 860.\\nIn Vol. 66, Corpus Juris, Section on Vendor and Purchaser, page 1060, we find the following: \\\"A subsequent purchaser from a vendor with notice actual or constructive, of a prior contract of sale of the land takes the land subject to the contract whether he has a deed or not, and although he has paid a valuable consideration.\\\"\\nWe have often stated that an agent, regardless of how innocent his intentions may be, cannot place himself in a situation where personal interests conflict with.the duties owed his principal. In the recent case of McHaney v. McHaney, 209 Ark. 337, 190 S. W. 2d 450, 162 A. L. R. 1175, we said.: \\\"Everyone, whether designated agent, trustee, servant, or what not, who is under contract or other legal obligation to represent or act for another in any particular business or line of business, or for any valuable purpose, must be loyal and faithful to the interest of such other in respect to such interest or purpose. He cannot lawfully serve or acquire any private interest of his own in opposition to it. T.his is a rule of common-sense and honesty, as well as law. The agent.,is not entitled-.to avail himself of any advantage that his position may give him to profit beyond the agreed compensation for Ms services. He may not speculate for Ms gain in the subject-matter of the employ-' ment. He may not use any information that he may have acquired by reason of his employment, either for the purpose of acquiring property or doing any other act which is in opposition to his principal's interest.\\\"\\nThe cardinal principle of all agency is good faith. In accepting the office of depositary, appellant became the agent of both buyer and seller. This created a relation of confidence the depositary could not thereafter violate nor pervert to his own advantage or the detriment of either principal. Upon one claiming to be an innocent purchaser rests the burden of proving his good faith. Abbott v. Parker, 103 Ark. 425, 147 S. W. 70. We think the chancellor was correct in finding that appellant was not an innocent purchaser without notice, at the time he acquired a deed to the 40-acre tract from Helen M. Thomas. As escrow agent, the appellant had actual knowledge of the sale of said land to the appellee.\\nThe appellant is in no position to plead estoppel. He was aware of the sale of the land to the appellee before he expended any money on his alleged purchase. He attempted to purchase the property from the auctioneer, at a private sale, after he had received actual knowledge that the property had been sold to the appellee. The record reveals that appellant knew that Mrs. Thomas had not rejected the appellee's bid. In fact he knew that Mrs. Thomas had prepared a written statement, whereby, she informed appellee that she had not rejected his bid and she wanted appellee to have the property for the amount of the bid. The appellant did not expend any money for the purchase of the 40-acre tract until several days after he received notice from appellee of the latter's claim. Appellant was escrow agent for the parties and was charged with the duty of carrying out the terms and conditions of the escrow agreement. As such escrow agent, he was not entitled to avail himself of any advantage that his position gave him to profit beyond the agreed compensation for his services. It is uniformly held that no one can be permitted to purchase an interest in property -where he has a duty to perform that is inconsistent with the character of a purchaser. Culberhouse v. Shirey, 42 Ark. 25; Rogers v. Lockett, 28 Ark. 290; Ellsworth v. Benedict, 214 Ark. 367, 216 S. W. 2d 392.\\nUpon trial of this cause, the appellant did not plead estoppel. The appellant has failed to bring himself within any of the exceptions to the general rule. Therefore, the appellant cannot raise the plea of estoppel for the first time, upon appeal to this court. Gerard B. Lambert Co. v. Rogers, 161 Ark. 307, 255 S. W. 1089; Reeder v. Meredith, 78 Ark. 111, 93 S. W. 558.\\nFinding no error in the trial court's decree in cancelling appellant's deed and confirming title in appellee as against appellant, the decree is affirmed.\\nJustice Smith dissents.\"}"
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+"{\"id\": \"1650397\", \"name\": \"Bailey v. Commerce Union Bank\", \"name_abbreviation\": \"Bailey v. Commerce Union Bank\", \"decision_date\": \"1954-05-17\", \"docket_number\": \"5-408\", \"first_page\": \"686\", \"last_page\": \"693\", \"citations\": \"223 Ark. 686\", \"volume\": \"223\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T23:43:47.685638+00:00\", \"provenance\": \"CAP\", \"judges\": \"McFaddin and Ward, JJ., dissent.\", \"parties\": \"Bailey v. Commerce Union Bank.\", \"head_matter\": \"Bailey v. Commerce Union Bank.\\n5-408\\n269 S. W. 2d 314\\nOpinion delivered May 17, 1954.\\n[Opinion on rehearing delivered June 28, 1954.]\\nTalley S Owen and Dale Price, for appellant.\\nOwens, Ehrman \\u2022& McHaney and James M. McIIaney, for appellee.\", \"word_count\": \"2642\", \"char_count\": \"15116\", \"text\": \"George Bose Smith, J.\\nThis is an action in replevin brought by the appellee to recover possession of a house trailer. The trailer was originally sold by the \\\"Wiley Trailer Market to Paul C. Thompson, the seller retaining title to the vehicle. By subsequent assignments the seller's contract has passed to the appellee and the purchaser's interest has passed to the appellant. The complaint alleges that the unpaid balance of the purchase price amounts to $4,736.06.\\nThe defendant first filed a motion to- transfer the cause to equity, upon the ground that usury would be pleaded as a defense. Before the court acted upon that motion the defendant filed an answer which asserts that the contract is usurious and void upon its face. The plaintiff then moved that this defense be stricken, for the reason that the defendant was not a party to the original contract and therefore cannot plead usury. Upon these pleadings, without hearing any testimony, the court denied the motion to transfer and sustained the motion to strike the plea of usury. The ease then proceeded to a final judgment for the plaintiff. Upon this appeal the appellant attacks the court's rulings on the two motions.\\nThe court was right in denying the request for a transfer to chancery. A plea of usury raises no issue that cannot be effectively determined by a court of law. The debtor, it is true, by acting promptly may bring suit in equity to obtain cancellation of the contract. But this appellant failed to take that step, and instead it was the creditor who first put the debt in issue by seeking to replevy the property. The plea of usury thus became a defense available to the debtor. This defense is no more complicated than, for example, a plea of payment, and in no way does it require the exercise of powers peculiar to a court of equity. Under the doctrine of res judicata a judgment for the defendant in a court of law would settle the controversy with the same finality that would attend an equitable decree of cancellation. There was no occasion for the circuit court to surrender control of the case.\\nThe serious question is presented by the plaintiff's motion to strike the defense of usury: May one who purchases property already subject to a title retaining contract attack that contract as usurious?\\nAt common law the plea was not allowed. The courts reasoned that the purchaser had presumably received credit on the purchase price for the amount of the encumbrance and would be unjustly enriched if the debt were cancelled. (It conld of course be argued with equal force that, if the contract was void from the beginning, it is the creditor who is unjustly enriched by denying to the purchaser a valid defense. There is simply a choice of who shall bear the loss.) In 1877 we adopted the common law rule by declaring that a plea of usury is personal to the borrower. Pickett v. Merchants' Nat. Bank, 32 Ark. 346. We later held, in 1885 and again in 1886, that one who challenges a usurious contract must tender the debt plus lawful interest. Grider v. Driver, 46 Ark. 50; Tillar v. Cleveland, 47 Ark. 287, 1 S. W. 516.\\nThese two rules \\u2014 that the plea is personal to the borrower and that even the borrower must tender the debt with legal interest \\u2014 are mere common law pronouncements which the Legislature is free to abrogate if it likes. The General Assembly, at its next session after the decision in the Tillar case, undertook to abolish both rules, by the enactment of Act 39 of 1887. Ark. Stats. 1947, \\u00a7 68-609 \\u2014 68-611. Sections 1 and 3 of the Act are pertinent to the present case:\\n\\\"Section 1. Every lien created or arising by mortgage, deed of trust or otherwise, on real or personal property, to secure the payment of a contract for a greater rate of interest than ten percentum per annum, either directly or indirectly, and every conveyance made in furtherance of any such lien is void; and every such lien or conveyance may be cancelled and annulled at the suit of the maker of such usurious contract, or his vendees, assigns or creditors. The maker of a usurious contract may by suit in equity against all parties asserting rights under the same, have such contract and any mortgage, pledge or other lien, or conveyance executed to secure the performance of the same, annulled and cancelled, and any property, real or personal, embraced within the terms of said lien or conveyance, delivered up if in possession of any of the defendants in the action, and if the same be in the possession of the plaintiff, provision shall be made in the decree in the case removing the cloud of such usurious lien, and conveyances made in furtherance thereof, from the title to such prop erty. And any person who may have acquired the title to, or an interest in, or lien upon such property by purchase from the makers of such usurious contract, or by assignment or by sale under judicial process, mortgage or otherwise, either before or after the making of the usurious contract, may bring his suit in equity against the parties to such usurious contract, and anyone claiming title to such property by virtue of such usurious contract, or may intervene in any suit brought to enforce such lien, or to obtain possession of such property under any title growing out of such usurious contract, and shall by proper decree have such mortgage, pledge or other lien, or conveyance made in furtherance thereof, can-celled and annulled in so far as the same is in conflict with the rights of the plaintiff in the action. ' '\\n\\\"Section 3. Neither the maker of a usurious contract nor his vendees, assigns or creditors, or any other person who may have or claim an interest in any property embraced within the terms of said usurious contract, shall be required to tender or pay any part of the usurious debt or interest as a condition of having such contract, and any conveyance, mortgage, pledge or other lien given to secure its payment or executed in furtherance thereof, enjoined, cancelled and annulled, and any rule of law, equity or practice to the contrary is hereby abrogated. ' '\\nIt is difficult to see how the Legislature could have expressed itself more clearly. In 1875 the General Assembly, pursuant to the mandate contained in the Constitution of 1874, Art. 19, \\u00a7 13, had declared all usurious contracts whatever to be void. Ark. Stats., \\u00a7 68-608. During the next eleven years this court laid down the two rules that we have mentioned. By \\u00a7 1 of Act 39 of 1887, quoted above, it is declared that \\\"The maker of a usurious contract may by suit in equity against all parties asserting rights under the same, have such contract . . . annulled and cancelled. ' ' The same right is then extended to \\\"any person who may have acquired the title to, or an interest in, or lien upon such property by purchase from the makers of such usurious contract.\\\" By \\u00a7 3 it is declared that neither the maker nor his vendees, assigns or creditors shall be required to tender or pay any part of. the usurious debt or interest as a condition to. cancellation of the contract. In an abundance of caution the Legislature pointedly added that \\\"any rule of law, - equity or practice to the contrary is hereby abrogated. '\\nThis statute, with reference to the particular point now under discussion, has been considered in only one case, Hiner v. Whitlow, 66 Ark. 121, 49 S. W. 353, 74 Am. St. Rep. 74. There Hiner had bought mortgaged property and caused it to be conveyed to his wife. It is not clear whether she assumed the debt or took subject to it, as the court regarded that question as immaterial. In a suit brought by Whitlow to foreclose the mortgage Mrs. Hiner attempted to rely upon usury as a defense. We first referred to the common law rule which precludes one not a party to the original contract from pleading-usury \\\"unless allowed to do so by a statute.\\\" We then examined \\u00a7 1 and 2 of Act 39 and concluded that the common law rule had not been changed thereby. The opinion stresses the concluding- clause of \\u00a7 1, to the effect that the plaintiff may have the usurious contract can-celled \\\"in so far as the same is in conflict\\\" with his rights. The court's reasoning was that since the purchaser of mortgaged property acquires not the property itself but only the equity of redemption \\u2014 \\\"that part of the estate or interest in the property not covered by the mortgage\\\" \\u2014 there is no conflict between the purchaser's rights and the usurious lien.\\nWe have studied the statute and the Hiner opinion long and carefully, and we are wholly unable to reconcile the two. The final clause in \\u00a7 1 of the statute, which was emphasized in the Hiner opinion, can easily be harmonized with the rest of the Act. If, for instance, a usurious mortgage embraces three.tracts of land and the plaintiff has purchased only one tract, this clause limits his right of cancellation to the extent that the mortgage conflicts with his interest.\\nIf, however, this one clause is to be given the foree attributed to it by the Hiner case, then it completely nullifies the rest of \\u00a7 1 and all of \\u00a7 3, as far as an assignee of the contract is concerned. This is so for the reason that in every situation, without exception, it could be said that the purchaser of encumbered property acquires only the equity over and above the encumbrance. The result is not only to deny to the purchaser of ' ' an interest\\\" in the property the right of cancellation, a right plainly given by \\u00a7 1, but also to require the purchaser to pay the entire debt and usurious interest thereon, in the teeth of \\u00a7 3.\\nThe Hiner case has not been followed, nor even cited, in the fifty-five years since it was decided. It did not establish a rule of property in the sense that anyone has patterned his conduct in reliance upon the case. That is, it is pretty certain that no creditor, owning a usurious contract, has persuaded his debtor to transfer the prop-' erty to a third person for the sole purpose of immunizing the contract from attack. Yet, if the decision is allowed to stand, it could readily be utilized by an unscrupulous lender as a means of protecting usurious contracts; for the loan could ostensibly be made to a straw man, and the real borrower could then be required to assume the obligation. The Hiner case, to the extent that it construed Act 39 of 1887, is overruled.\\n\\\"We do not intimate that this appellee's conditional sales contract is in fact void for usury. That issue has not been investigated, since the defense of usury was. stricken from the defendant's answer and was therefore not explored at the trial. The statute, however, expressly gives the borrower the right to litigate the matter in a court of equity, and, as we have seen, this is a substantive right that can equally well be asserted in a court of law.\\nReversed and remanded for a new trial.\\nMcFaddin and Ward, JJ., dissent.\"}"
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+"{\"id\": \"1668813\", \"name\": \"Melvin G. MARROW v. STATE FARM INSURANCE COMPANY\", \"name_abbreviation\": \"Marrow v. State Farm Insurance\", \"decision_date\": \"1978-09-18\", \"docket_number\": \"78-68\", \"first_page\": \"227\", \"last_page\": \"239\", \"citations\": \"264 Ark. 227\", \"volume\": \"264\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T21:32:13.825776+00:00\", \"provenance\": \"CAP\", \"judges\": \"Harris, C J., and Byrd and Hickman, JJ.\", \"parties\": \"Melvin G. MARROW v. STATE FARM INSURANCE COMPANY\", \"head_matter\": \"Melvin G. MARROW v. STATE FARM INSURANCE COMPANY\\n78-68\\n570 S.W. 2d 607\\nOpinion delivered September 18, 1978\\n(Division II)\\n[Rehearing denied October 30, 1978.]\\nJ. B. Cobb, Memphis, Tenn., and William Wilson, for appellant.\\nLaser, Sharp, Haley, Young & Huckabay, P.A., for appellee.\", \"word_count\": \"3694\", \"char_count\": \"22346\", \"text\": \"John A. Fogleman, Justice.\\nThis appeal comes from a summary judgment against appellant Melvin G. Marrow in his suit against appellee State Farm Insurance Company for fraud in obtaining a settlement of appellant's claim against its insured Francisco Baltierrez for personal injuries resulting from a collision between an automobile driven by Baltierrez and another, occupied by Marrow and his family. Marrow contends that the record discloses that genuine issues of material fact existed, that the trial court granted the summary judgment prematurely because appellant's discovery was not complete and that the trial court erred in denying certain portions of his motion for production of documents and his motion for production of documents not previously produced. We disagree with appellant on the first of these contentions. The latter two are so interrelated that they must be considered together. When we do this, we find reversible error.\\nMarrow sued his attorney Harold Sharpe and appellant jointly. The action against Sharpe should be classified as a malpractice suit. This phase of the suit is not involved on this appeal. Appellant alleged that Sharpe had been employed to represent him and his family in seeking recovery from State Farm Insurance Company for his damages and those of his family and that, during negotiations for settlement of these claims, the adjuster for State Farm advised Sharpe that the Baltierrez liability coverage was limited to $20,000 for any one person injured and $40,000 for all persons injured. According to the allegations of the complaint, Marrow settled his claim for personal injuries for $20,000, believing that this was his maximum possible recovery because of the assertions Sharpe attributed to State Farm. Marrow further alleged that he later discovered that the policy limits were far in excess of those he had been led to believe were applicable. Further allegations were assertions that misrepresentations of the policy limits were fraudulently made by State Farm through its adjuster. Marrow had sought recovery of $200,000 based upon medical expenses in excess of $13,000 and severe and serious permanent injuries to his person, including a permanent loss of earning capacity.\\nMarrow has, at all times, admitted that no representative of State Farm had ever made any representation to him about the limits of the Baltierrez coverage. His action depends upon a showing that State Farm misrepresented the amount of the policy limits to Sharpe. It appears that all negotiations with the insurance company in making a settlement of Marrow's claim for personal injuries for $20,000 were conducted by Sharpe, who testified that his files in the case had been shredded. In a discovery deposition, Sharpe has denied that the insurance company or its agents ever made any representation to him about the amount of the policy limits. Sharpe stated that he had reached a conclusion as to the policy limits after talking with a representative of State Farm, and all his conversations were with Joe Fagan and James (Dutch) Meredith.\\nMarrow states unequivocally that he gave Sharpe authority to settle his claim for the amount of the Baltierrez policy limits, but for no less, whatever they were. He states, just as positively, that he was informed by Sharpe that the settlement was for the amount of the policy limits and that Sharpe had previously assured him that he could ascertain the amount of these limits from one Joe Fagan, a State Farm adjuster who lived in West Memphis. Marrow says that he did not realize that this was not true until there had been a settlement of a claim by his son-in-law for the death of Marrow's daughter as a result of the collision. By adding the amount paid in this settlement to the recovery on behalf of himself, his wife and his son, he discovered that the total paid all parties by State Farm was $41,000. Marrow testified that when he confronted Sharpe with this fact, Sharpe stated that the State Farm representatives had misled him and had lied about the amount of the policy limits. He then endeavored to investigate, or to cause an investigation to be made, to determine the true facts. It is admitted that the policy limits for personal injuries to one person were $50,000. This action was filed after Marrow became convinced that the policy limits were in excess of those he had been led to believe were applicable.\\nAn earlier motion for summary judgment was held premature. Before that motion was heard, Marrow's attorney had filed a request for production of documents. This first request was denied by the court as being too generalized because it might force the production of work product and other confidential matters. That motion had sought production of the entire file of State Farm concerning Marrow's claim. In its order, the court indicated that a particularized request should be granted. Appellant then filed a motion for production of the following documents:\\n1. All correspondence, memorandum, communications, or writings by State Farm Insurance Company as to the evaluation of or record of reserve for contingent liability growing out of the accident of their insured, Francisco Baltierrez, on July 4, 1971.\\n2. All correspondence between the defendant, Harold Sharpe, Attorney, and State Farm Insurance Company and the replies of State Farm Insurance Company as to:\\n(a) Evaluation of different claims against Francisco Baltierrez as a result of the accident of July 4, 1971.\\n(b) Offers of Settlement of the above\\n(c) Counter-Offers of Settlement.\\n(d) Any other written memorandum pertaining to negotiations and offers of settlement.\\n3. All documents, not privileged, pertaining to the value of the claim of Melvin Marrow against Francisco Baltierrez and his insurance company, the defendant, State Farm Insurance Company; including documentation or information which will lead to correspondence not privileged bearing on the same issues.\\n4. All inter-office memorandum pertaining to the evaluation of the claim of Melvin Marrow or the combined claims of Melvin Marrow and the members of his family against State Farm Insurance Company or their named insured, Francisco Baltierrez.\\n5. All correspondence from Harold Sharpe and the replies thereto after Melvin Marrow lodged a complaint with the Commissioner of Insurance and Banking or the Bar Association of Arkansas against Harold Sharpe.\\n6. All inter-office memorandum or notes or letters which might have caused Harold Sharpe to believe that Francisco Baltierrez had policy limits with State Farm Insurance Company in the amount of $20,000.00/140,-000.00.\\n7. All inter-office memorandum pertaining to the offers of settlement, counter-offers of settlement, or any other written memorandum pertaining to negotiations and offers of settlement.\\n8. All inter-office memorandum requesting, discussing, directing, or granting authorization to make offers of settlement.\\n9. All memorandum concerning phone conversations between defendant, State Farm Insurance Company, employees or agents and defendant, Harold Sharpe or his agents or employees pertaining to policy limits or offers of settlement.\\nState Farm objected to items 1, 3, 4, 6, 7 and 8. It also objected to item 2 (d). It agreed to produce other material specified in item 2, and all that requested in items 5 and 9. As to item 6, State Farm agreed to produce all its correspondence with Sharpe and all memoranda made by any adjuster concerning his negotiations with Sharpe. The trial court then ruled that, except for the written correspondence between representatives of State Farm and Sharpe and copies of written memoranda concerning conversations between State Farm and Sharpe made by the representatives of State Farm having the conversations, the requests were for matters that were either privileged, or the need for them had not been satisfactorily shown.\\nState Farm then filed the motion for summary judgment that resulted in the judgment from which this appeal was taken. Appellant then moved for an order requiring State Farm to produce the following documents:\\n1. The memorandum of 7/30/71 which was referred to in the memorandum dated 9/15/71 to Res. Supt. James Reese from Joe Fagan, West Memphis CSO, as follows: \\\"After receiving a copy of your memo of 7/30/71 setting forth the best procedure to follow in this claim, I contacted Danny Doler and discussed the claim with him in the presence of his mother. According to our strategy, I advised Danny and his mother that we were dealing with limited funds, . . . . \\\"\\n2. Written memorandum made as a result of a phone conversation between James Reese and Joe Fagan on Spetember 15, 1971 which was referred to on Page 3 of the memorandum dated 9/15/71, heretofore described. Also on Page 4 of this same memorandum, reference is made to a meeting between Joe Fagan and Harold Sharpe to discuss the claim of Mr. Marrow and his family. The plaintiff requests any notes or memorandum made by Mr. Fagan in this meeting.\\n3. The office memorandum dated 11/1/71 to Joe Fagan, West Memphis, Arkansas, CSO from Res. Supt. James C. Reese indicates that the two men discussed the case by phone on October 15, 1971. Plaintiff requests production of any written memorandum of such conversation.\\n4. Plaintiff requests a copy of Joe Fagan's partial closing report and any memorandums made of a conversation between Joe Fagan and James Reese, made from the office of Attorney, Harold Sharpe conveying Mr. Sharpe's \\\"low dollar figure\\\" for settlement; or any written memorandum made in conjunction with or incident to this conversation.\\n5. Reference is made in a memorandum dated 12/3/71 from James Reese to Wayne Hill concerning a conversation between Mr. James Reese and Attorney, Sharpe. Plaintiff requests production of any memorandum or notes concerning said conversation.\\n6. A memorandum dated 12/15/71 from Wayne Hill to James C. Reese, contains references to frequent contacts between Wayne Hill and Attorney Sharpe between the dates of 12/3/71 and 12/15/71. Plaintiff requests the production of any notes or memorandum made by Wayne Hill in conjunction with these frequent visits during this period.\\n7. In the letter dated 12/15/71 from Attorney Sharpe to Jim Reese, reference is made to a phone conversation which occurred during the first several days in December. A note is also entered at the end of this letter stating that \\\"Sharpe called 12/20/71.\\\" Plaintiff requests production of any notes or memorandum made by Mr. Jim Reese in connection with either of these phone conversations.\\n8. Reference is made in the letter dated 4/5/72 from Wayne Hill to James Reese to a phone conversation of 4/5/72 between Mr. Hill and Mr. Reese. Plaintiff requests production of any notes or memorandum of this conversation made by Mr. Reese or Mr. Hill.\\n9. In the memorandum dated 5/2/72 from James Reese to Mr. Jack Christensen, Res. Supt. for the defendant, State Farm, Northern Illinois, there is reference to a memorandum prepared by Mr. Christensen dated 4/28/72. Plaintiff requests production of said document.\\n10. Plaintiff previously requested and the defendant, State Farm, agreed to produce \\\"all correspondence from Harold Sharpe and those replies thereto after Melvin Marrow lodged a complaint.\\\" Defendant produced a letter addressed to Mr. Melvin Marrow from Mr. George M. Polk, showing carbon copies of the letter being addressed to Mr. R. O. Noel and Mr. Troy Phillips, employees of defendant, State Farm in the \\\"Home Office Complaint Department.\\\" Plaintiff requests copies of all correspondence to or from Mr. Noel, Mr. Phillips, and Mr. George M. Polk concerning the complaint filed by Mr. Marrow.\\nThis motion was entitled: \\\"Plaintiff's Motion for Production of Documents not Previously Produced.\\\"\\nA hearing was held on these later motions. The court first granted the summary judgment and then denied the last motion of appellant for production of documents, but both actions were incorporated in the judgment from which this appeal is taken. The reasons for the denial were not stated.\\nIn approaching the questions raised on this appeal as to the denial of appellant's request for documents not previously furnished, we must consider the permissible scope of discovery. We have never sanctioned an outright and unadulterated \\\"fishing expedition\\\" under Ark. Stat. Ann. \\u00a7 28-356 (Repl. 1962). Price v. Edmonds, 231 Ark. 332, 330 S.W. 2d 82. The later case of Arkansas State Highway Com'n. v. Stanley, 234 Ark. 428, 353 S.W. 2d 173, relied upon by appellant, did not overrule Price (relied upon by appellee) or abrogate the principle upon which that holding was based. The two decisions are harmonious and easily reconciled. The request in Price was that Edmonds, a utility rate payer, be permitted to inspect all the books and records of a utility commission charged with the operation of the electric power distribution system, the waterworks and the sewer system of the City of West Memphis, in connection with his suit to enjoin the commission from entering into any contract with, or making any payment to, any concern in which one or more of the commissioners had an interest. Ark. Stat. Ann. \\u00a7 28-356 was not mentioned in the opinion but it was the governing statute. In Stanley, we were treating the same section of the discovery statute, but the request there was for entry upon the lands of a condemnee by the condemnor for the purpose of making test drillings to determine the extent of mineral deposits thereunder, because the landowner had contended that the lands taken from him contained valuable mineral deposits. Our recognition there that the legislature intended that the section be given a liberal construction under the rule of Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947), was in nowise a limitation on the Price decision. Hickman recognized that the knowledge essential to proper litigation was knowledge of relevant facts. In Stanley, we stated tha the two controlling factors in granting and refusing an order for discovery were relevancy and good cause, citing Barron & Holtzoff, Federal Practice & Procedure (1961) \\u00a7 793. See also, Case Note, Trial Practice \\u2014 Federal Rule 34 \\u2014 Showing of \\\"Good Cause\\\" for Discovery, 8 Ark. Law Rev. 125. We found that both existed in Stanley. Although we have consistently adhered to the rule of liberal construction of this section, we have also adhered strictly to the rule that in order for a litigant to be entitled to discovery under its provisions, he must show good cause. See Drill v. Morris, 235 Ark. 40, 357 S.W. 2d 13; Tumlinson v. Harville, 237 Ark. 113, 372 S.W. 2d 385; Case Note, Trial Practice, Federal Rule 34 \\u2014 Showing of \\\"Good Cause\\\" for Discovery, supra. Furthermore, we have not deviated from our position that relevancy is one of the two controlling factors. See Kuhl v. Arkansas State Board of Chiropractic Examiners, 236 Ark. 58, 364 S.W. 2d 790. Of course, relevancy is not limited to the question whether the documents themselves constitute evidence, if they may reasonably be expected to lead to the discovery of evidence. Ark. Stat. Ann. \\u00a7 28-348 (b) (Repl. 1962); Tumlinson v. Harville, supra. See also, Case Note, supra, 8 Ark. Law Rev. 125, 126. It is significant that we have not eliminated the requirement of a showing of good cause from our statute, as has been done in other jurisdictions, so cases from those jurisdictions involving the application of a statute or rule which does not contain this requirement are not to be considered, even though it seems that, even in the absence of this requirement, a showing of necessity is required.\\nAs in all matters pertaining to discovery the trial court has a wide latitude of discretion in determining the existence of the controlling factors in any case, and that discretion will not be controlled by this court in the absence of abuse which is prejudicial to the appealing party. Tumlinson v. Harville, supra; Curbo v. Harlan, 253 Ark. 816, 490 S.W. 2d 467; Dunaway v. Troutt, 232 Ark. 615, 339 S.W. 2d 613; Rickett v. Hayes, 251 Ark. 395, 473 S.W. 2d 446. Yet we have not hesitated to find an abuse of discretion where there has been an undue limitation of substantial rights of the appellant under the circumstances prevailing, if subsequent developments have not mooted the question. Rickett v. Hayes, supra.\\nIn this case, we find an abuse of discretion in the denial of appellant's last motion for production of documents. In so doing, we consider the fact that appellant, if he has any claim against State Farm, is placed in the position of having to prove it by the testimony of officers and agents of State Farm and by documents, papers and letters, written by them and kept by State Farm. In such a case, the scope of discovery permitted should be broader than otherwise and appellant here should be permitted to inspect any writing in the files of the insurance company which might lead to admissible evidence. See Connecticut Mutual Life Ins. Co. v. Shields, 17 FRD 273 (S.D., N.Y., 1955); Dow Chemical Co. v. Monsanto Co., 256 F.S. 315 (S.D., Ohio, 1966).\\nIt is readily apparent to us that, under the circumstances, appellant's discovery has been unduly limited. The goal of all discovery is to permit a litigant to obtain whatever information he may need to prepare adequately for issues that may develop without imposing an onerous burden on his adversary. United States v. Ling-Temco-Vought, Inc., 49 FRD 150 (W.D., Pa., 1970). A motion for production of documents must be considered in the light of the particular circumstances which give rise to it and the need of the movant for the information requested. Straughan v. Barge MVL No. 802, 291 F.S. 282 (S.D., Tex., 1968). That the information sought is not otherwise available to the party making the request, and that evidence pertaining to the issue, if there is any, would likely be in the files of State Farm, are very pertinent circumstances. Chitty v. State Farm Mutual Automobile Ins. Co., 36 FRD 37 (E.D., S.C., 1964). See also, Rekeweg v. Federal Mutual Ins. Co., 27 FRD 431 (N.D., Ind., 1961); Royal Exchange Assurance v. McGrath, 13 FRD 150 (S.D., N.Y., 1952); Turmenne v. White Consolidated Industries, Inc., 266 F.S. 35 (Mass., 1967).\\nFrom an examination of the record as abstracted, it seems clear to us that appellant was entitled to several, if not all, of the items requested in his motion for production of documents not previously produced and that denial of the motion in toto was an abuse of discretion because it constituted an undue limitation on his right of discovery. We have no hesitation in saying that the requests for items 1, 3 and 4 should have been granted because they would be calculated to lead to discovery of relevant evidence, whether favorable or unfavorable to Marrow. We speak with assurance on these items because the relevant portions of the documents giving rise to the requests were abstracted as a part of appellant's brief in response to the first motion for summary judgment filed by State Farm. If the record actually discloses the contents of documents and writings furnished, as stated in appellant's motion, in regard to items 2, 5, 6, 7 and 10, assuming that the conversations and contacts men tioned related to the Baltierrez policy or the claims arising out of the automobile collision, those requests should be granted. We do not speak with assurance on these items because the underlying facts are not stated in any part of the abstract of the record. We suggest that, if there is any serious question about the relationship of the requested items to this litigation, the material be submitted by State Farm to the trial judge, in camera, for a determination by him whether it should be furnished to appellant for inspection or copying by him. See Olson Rug Co. v. N.L.R.B., 291 F. 2d 655 (7th Cir., 1961).\\nWe should add that the trial court's ruling from which the appeal is taken was not in any way based upon the \\\"work product\\\" privilege and it does not appear that any of the requested material falls within that category. See Curbo v. Harlan, 253 Ark. 816, 490 S.W. 2d 467; Drill v. Morris, 235 Ark. 40, 357 S.W. 2d 13; Virginia Electric & Power Co. v. Sun Shipbuilding & Dry Dock Co., 68 FRD 397 (E.D., Va., 1975).\\nBut little need be said about the point that appellant reserved for last in his brief. We simply do not agree that the evidence that can be gleaned from the depositions and the material obtained by discovery are sufficient to show that there was a prima facie showing of fraud on the part of State Farm, or that a genuine issue of fact existed on that issue. Taken collectively, they may justify a reasonable suspicion in Marrow's mind. But this does not create an issue on the question of fraud, even when we consider Marrow's testimony that Sharpe said that an agent of State Farm had misled him. Appellant characterizes this statement as double hearsay. We do not quibble about that classification, but, even though Sharpe's testimony to this effect would probably be admissible in the case against Sharpe, his statement to Marrow clearly would not be admissible against State Farm.\\nAppellant misapplies Rule 801 (d) (2) (iv) of Ark. Stat. Ann. \\u00a7 28-1001 (Supp. 1977). The statement in question is a statement by Sharpe which Marrow proposes to offer against State Farm, but it is clear that Sharpe has never been an agent of State Farm. The subsection upon which appellant relies relates to admissions by an adverse party. While Sharpe was an adverse party, he certainly could not make ad missions or. behalf of State Farm. This double hearsay is not admissible under Rule 805. It cannot possibly be said that each part of it conforms with an exception to the hearsay rule.\\nWithout the alleged statement of Sharpe, it is difficult to see how it could seriously be argued that there was a genuine issue of fact as to fraud.\\nThe judgment is reversed and the cause remanded for further proceedings consistent with this opinion.\\nWe agree.\\nHarris, C J., and Byrd and Hickman, JJ.\"}"
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+"{\"id\": \"1681401\", \"name\": \"Phillips v. Phillips\", \"name_abbreviation\": \"Phillips v. Phillips\", \"decision_date\": \"1963-03-04\", \"docket_number\": \"5-2884\", \"first_page\": \"225\", \"last_page\": \"231\", \"citations\": \"236 Ark. 225\", \"volume\": \"236\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T19:27:44.769213+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Phillips v. Phillips.\", \"head_matter\": \"Phillips v. Phillips.\\n5-2884\\n365 S. W. 2d 261\\nOpinion delivered March 4, 1963.\\nG. W. Lookadoo and M. C. Lewis, Jr., for appellant.\\nSam L. Anderson, for appellee.\", \"word_count\": \"1984\", \"char_count\": \"11023\", \"text\": \"Sam Bobinson, Associate Justice.\\nAppellant, Maggie Phillips, and appellee, Henry Phillips, married April 19, 1946. Henry filed this suit for divorce on October 7, 1958. Maggie filed an answer and cross complaint denying the allegations of the complaint and asking that she be granted a divorce. The trial court denied Henry a divorce on his complaint, but granted Maggie a divorce on the cross complaint. Neither side has appealed from that part of the decree granting the divorce, but property rights are involved and Maggie has appealed from that part of the decree dealing with the property, and the failure of the court to award alimony, and has asked for an additional attorney's fee.\\nAt the time of the marriage, Maggie owned a piece of property of almost a city block in area on Albert Pike Street in Hot Springs, hereinafter called the Albert Pike property. This property, obtained by Maggie in a settlement with a former husband, cost $6,500.00; $2,500.00 had been paid on the purchase price, leaving a balance of $4,000.00 owed at the time of the conveyance to Maggie.\\nAbout two months after the marriage to appellee, Phillips, Maggie conveyed the property to a third party, who in turn conveyed it to Maggie and appellee as an estate by the entirety. In explaining her reason for creating the estate by the entirety in the property, at one point Maggie testified: \\\"Well, you see, it ivas like this: He said to me, 'if something would happen to you,' he wouldn't get anything, so he wanted to have his name on the deed, and he promised me he'd be good to me, and I said, 'Well, all right then, we'll just put your name on, add your name on the deed, ' and we just added his name on the deed. ' '\\nAt another point she testified:\\n\\\"Q. . Will you state why that transaction took place, why the deeds were made which put title in Mr. Phillips' name?\\nA. Yes, because, you see, he told me when we got married, you see, that I put his name on the paper because he told me if I didn't, well, he didn't feel like working, didn't feel like helping, and he was always fussing, so I thought if it would take that to go ahead and get along, you know, as wife and husband should get along, I'd put his name on, and I thought that any time he didn't do right, I could take it back off, see. Instead it wasn't that way, and then after I put his name on there, he started getting smart and not doing right. ' '\\nAgain she testified:\\n\\\"Q. Would you have put his name on the property other than the fact that you all were married?\\nA. No, I put his name only in there because he said-that if I would put his name in there he would be good to me, and he was a fussin ' all the time so I put his name on there.\\\"\\nMaggie contends first, that an estate by the entirety was created in the property in consideration of, or by reason of the marriage, and that the property should be reconveyed to her in pursuance to Ark. Stats. 34-1214 which provides: \\\"In every final judgment for divorce from the bonds of matrimony granted to the husband, an order shall be made that each party be restored to all property not disposed of at the commencement of the action, which either party obtained from or through the other during the marriage and in consideration or by reason thereof; and where the divorce is granted to the wife the court shall make an order that each party be restored to all property not disposed of at the commencement of the action, which either party obtained from or through the other during the marriage and in consideration or by reason thereof;... \\\"\\nThe above part of Ark. Stats. 34-1214, adopted in 1898, was copied from Section 462 of the Kentucky Code of Practice, adopted by Kentucky in 1854. In Phillips v. Phillips, 9 Bush (Ky.) 183, and Flood v. Flood, 5 Bush (Ky.) 167, the Kentucky Court construed Section 462 to mean: \\\"... the word 'consideration' in this act, [means] 'the act of marriage, or some agreement or contract touching or relating to the act of marriage,' and the expression 'by reason thereof' 'to relate to such property as either party may have obtained from or through the other by operation of the laws regulating the property rights of husband and wife. ' ' '\\nSubsequently, in 1876, Kentucky adopted Section 425 of the Code which amended the 1854 act by adding the words \\\"and any property so obtained without valuable consideration shall be deemed to have been obtained by reason of the marriage. ' '\\nIn McNutt v. McNutt, 78 Ark. 346, 95 S. W. 778, it was pointed out that our statute 34-1214, passed by the General Assembly in 1893, was adopted from Kentucky's 1854 Code and not from the Kentucky Code as amended by the act of 1876; that at the time of our adoption of the Kentucky Code it had been construed as above mentioned in the Phillips and Flood cases, and that we adopted along with the act the construction which had been placed on it by the Kentucky Court. The McNutt case has been followed consistently. Dickson v. Dickson, 102 Ark. 635, 145 S. W. 529; Harbour v. Harbour, 103 Ark. 273, 146 S. W. 867; Turner v. Turner, 219 Ark. 259, 243 S. W. 2d 22; McClure v. McClure, 220 Ark. 312, 247 S. W. 2d 466.\\nIt will be seen from the testimony of Mrs. Phillips in the case at bar, that the estate by the entirety was not created in consideration of the act of marriage. In fact, there is no substantial evidence that the property was ever mentioned or considered by the parties before the marriage, nor was Henry's claimed interest in the property created by reason of the operation of law.\\nNext, Mrs. Phillips contends that if an interest in the property was not obtained by Phillips in consideration or by reason of the marriage within the meaning of the statute, it was conveyed to him as trustee and that he holds it in trust for her. The conveyance was made to Phillips 14 years before Mrs. Phillips made any claim that he was holding the property in trust. Even if it is assumed that by reason of the husband and wife relationship and no consideration being paid, Phillips was holding an interest in the property in trust for his wife, the direct testimony, including that of Mrs. Phillips, along with the circumstantial evidence, overcomes such presumption and proves by a preponderance of the evidence that the conveyance to Phillips was an outright gift. The effect of Mrs. Phillips' testimony on that point is that Mr. Phillips did not want to do any work on the property unless he owned an interest, and for that reason in addition to his promise to be good to her, and to keep peace in the family, she made the conveyance.\\nIn Spradling v. Spradling, 101 Ark. 451, 142 S. W. 848, the Court said: \\\"A wife, however, may make a direct gift or transfer of her property to her husband, and it will be sustained if not made through improper or undue influence. If the evidence clearly shows that it was the intention of the wife by such transfer to make a gift to her husband, then such transaction will be upheld. In such cases inquiry will be directed to the circumstances under which the instrument of transfer was executed by the wife. If it clearly appears that the transaction between the husband and wife was fairly entered into, and it was her intention to make him a gift, it will be held as binding as a transaction made between other parties.\\\"\\nThe enhancement in value of the property is not, in itself, sufficient to show the intention of the parties, but it does shed some light on the intention of the parties when borrowing money to improve the property. Mrs. Phillips owned only a $2,500.00 equity in the property at the time of the conveyance of the interest to Phillips. Subsequently, considerable improvements were made and the property is now worth between $50,000 and $75,000. Money was borrowed on the property several times for the purpose of buying and improving other property and to improve the Albert Pike property. Phillips signed the notes and obligated himself personally for the repayment of such loans. There is no showing that Mrs. Phil lips ever informed the banks at the time of obtaining loans that Phillips was not a bona fide owner of an interest in the property. We cannot say that the Chancellor's finding that Phillips owns an estate by the entirety is contrary to a preponderance of the evidence.\\nIn the year 1958, the parties borrowed money on the Albert Pike property for the purpose of constructing a store building oh leased property located on Highway 270 in G-arland County, west of Hot Springs, and to open a store in the building. Henry claims that he is the sole owner of the 270 store, and Maggie contends that she is a partner in that business. The Chancellor found in favor of Henry on this point. We have reached the conclusion that the preponderance of the evidence supports Maggie on this issue.\\nEver since they were married, with the exception of one period of about a year, Henry and Maggie have operated a store at one place or another. Maggie is the one that had the \\\"know how\\\". She had been operating a store or a market since she was a teen age girl. About 1953 they borrowed the necessary money and built a brick store building on the Albert Pike property. Later they sold the store to one Johnson. During the time Johnson was operating the store on the Albert Pike property, Henry and Maggie decided to open the store on Highway 270. It was then that they borrowed money, both being obligated for its repayment, and built and opened the 270 store.\\nThe store was opened in December and Maggie worked there until about the following May. In the meantime Johnson had given up the store on the Albert Pike property and Maggie opened it again. In June she had to go to the hospital for an operation, and while there, Henry moved all the groceries and most of the fixtures to the 270 store.\\nMaggie was certainly a partner in establishing the 270 store and the evidence does not show that the parties dissolved the partnership, nor has it been dissolved by operation of law. Therefore, the parties are still partners in the 270 store, and Maggie is entitled to an ac counting1 from Henry on the operation of the store. Likewise, since Henry is an owner of an estate by the entirety along with Maggie in the Albert Pike property, he is entitled to an accounting from her on that property! Appellee makes no contention that Maggie is not the owner of the store on the Albert Pike property.\\nMaggie was granted the use of the house in which she lives, rent free, but was awarded no alimony. We believe that since she was awarded no alimony, she should also have rent free, that part of the store building in which she operates a store.\\nAppellant was allowed an attorney's fee of $650.00 in the trial court. She is allowed an additional sum of $500.00 as attorney's fee in this' court.\\nThe cause is reversed with directions to enter a decree not inconsistent herewith.\"}"
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+"{\"id\": \"1697128\", \"name\": \"Warren v. Wheatley\", \"name_abbreviation\": \"Warren v. Wheatley\", \"decision_date\": \"1960-02-15\", \"docket_number\": \"5-2038\", \"first_page\": \"707\", \"last_page\": \"713\", \"citations\": \"231 Ark. 707\", \"volume\": \"231\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T23:48:36.895779+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Warren v. Wheatley.\", \"head_matter\": \"Warren v. Wheatley.\\n5-2038\\n331 S. W. 2d 843\\nOpinion delivered February 15, 1960.\\nRichard W. Hobbs, for appellant.\\nR. Julian Glover, Wooton, Land & Matthews, Earl J. Lane and Wood, Chesnutt <S> Smith, for appellee.\", \"word_count\": \"2045\", \"char_count\": \"11885\", \"text\": \"Jim Johnson, Associate Justice.\\nThis is a taxpayer's suit. The action was brought by appellant, H. C. (Dusty) Warren, County Judge of Garland County, in his individual capacity as taxpayer of Garland County, against the Board of Governors of the Ouachita General Hospital, an institution owned and operated by Garland County, and against Dr. George C. Coffey, to rescind the purchase by Ouachita General Hospital of a lot adjoining the hospital from Dr. George C. Coffey.\\nIt was stipulated by the parties that there was no fraud or collusion in the purchase of the lot for the use of the hospital and that the lot was worth the $15,000 purchase price, or more.\\nAppellant alleged that the Ouachita General Hospital was not a legal entity and could not purchase real property; that Garland County could not legally purchase this property in the manner in which it was purchased; that the County Court did not approve the purchase of the property; that a specific appropriation of the Garland County Quorum Court was required for this purpose and that none was made; and that a portion of the funds expended for the purchase of the property was procured from monies specifically appropriated by the Quorum Court of Garland County for care of charity patients and for operation and maintenance of the hospital in violation of law.\\nAs a separate cause of action against appellee, Hill A. Wheatley, Chairman of the Board of Governors of Ouachita General Hospital, appellant alleged that appellee, Hill A. Wheatley, had taken assignment from the seller, appellee, Dr. George C. Coffey, of a $10,000 note for the balance of the purchase price and had profited to the extent of $100 interest on the said note at the time it was paid, in violation of his duties as a member of the Board of Governors of the hospital.\\nTrial of the action in the Garland Chancery Court, in conjunction with another case involving this appellant and one of the appellees, resulted in dismissal of appellant's complaint for want of equity and this appeal followed.\\nAppellees alleged that the purchase of the lot for the use of the hospital was necessary for the efficient operation of the hospital; that the funds for the purchase of the lot where procured from cash revenues of the hospital from paying patients not subject to appropriation by the Quorum Court of Garland County; that the conveyance of the lot to the Ouachita General Hospital was, in effect, a conveyance to Garland County because the hospital was wholly owned by Garland County; that the purchase of the lot was approved by J. M. Lowery, County Judge of Garland County, at the time of the purchase; and that the purchase of the hospital's note for value by appellee, Hill A. Wheatley, and his receipt of the sum of $100 interest on the note was not a violation of his duties and obligations as a member of the Board of Governors of the hospital.\\nFrom the record on trial de novo we find that it is undisputed that the purchase of the lot for the use of the hospital was necessary for the efficient operation of the hospital. The Board should be commended for its interest in the welfare of the people of Garland County as evidenced by providing them this additional necessary facility at no expense to the taxpayer. The record reflects that the funds for the purchase of the lot were procured from cash revenues of the hospital from paying patients and therefore not subject to appropriation by the Quorum Court of the county. It is true that tax funds and funds from paying patients are mingled in the same bank account and that all payments are made from this common account. Even though we believe the better practice to be the establishment of a separate bank account for the public and private funds, we cannot say from this record that tax money was used in the purchase of the lot. The evidence is undisputed that the hospital's expenses for authorized purposes regularly exceed the Quorum Court's appropriation.\\nThe proof shows that from the inception of the hospital the expenditures of the hospital for care of charity patients consistently exceeded the appropriations for the care of charity patients both from Garland County and from the City of Hot Springs, and that during the six month period ending December 31,1958, the total receipts from the city and county for charity patients were $17,000 and the expenditures for charity patients were $27,859.63. Unrestricted cash funds of the hospital made up this deficit. The proof further shows that during this six month period the hospital received $13,500 from the one mill maintenance and operation tax and that total operating expenses were $222,202.54, exclusive of the purchase of the lot. This deficit was also made up from unrestricted cash funds of the hospital received from paying patients and other sources.\\nIt is obvious, therefore, that the funds for the purchase of the lot did not come from monies appropriated for other specific purposes by the Quorum Court of Garland County.\\nAppellant's argument on this point is primarily based on the fact that all monies from every source, including the restricted tax monies, were placed in one general bank account for convenience in accounting and administration of the affairs of the hospital. The hospital's accountant testified that separate ledger sheets were kept for the various funds, including the charity appropriations and the one mill maintenance tax, and that these funds were segregated on the books of the hospital. The hospital Administrator testified that on the day before the final payment for the lot was made, the hospital bank account amounted to $35,832.32, and that on the day the final payment of $10,000 was made, the balance in the bank account after this payment and after deposit of a check for $13,500 for one mill maintenance tax monies was.' $26,127. The records clearly reflect, therefore, that no part of the one mill maintenance tax or the charity appropriations was used by .the hospital in the purchase of the lot.\\nSince the members of the Board of Governors are trustees of the funds appropriated for the Ouachita General Hospital, and since the record reveals that at no time here involved did the common bank account fall below the amount contributed to the hospital from public sources, the money remaining will be deemed to have included the tax money. See: Chambers, Adm. v. Williams, Adm., 199 Ark. 40, 132 S. W. 2d 654; Powell v. Missouri & Ark. Land & Mining Co., 99 Ark. 553, 139 S. W. 299; Restatement Trusts 2d, Section 202 J, pages 451 and 452.\\nAppellant argues, and very forcefully so, that the Chancery Court erred in holding that the Ouachita General Hospital was a legal entity and could take title to real property. It was admitted by the pleadings and stipulations entered into between counsel that the Ouachita General Hospital was not a legal entity. Of course, we agree with appellant that the rule that before a grantee can take title to real property the grantee must be a legal entity is so basic that no citations are necessary. However, in this case the record reveals that the Ouachita General Hospital is wholly owned and operated by Garland County. That appellee, Dr. Coffey, did not prepare the deed to the Ouachita General Hospital. He did not have it prepared or have his attorney approve it. He relied solely upon the Board of Governors and the then County Judge J. M. Lowery as to the manner in which the conveyance was made and the transaction handled and as to the validity thereof. That twice during the course of the trial a correction deed from Dr. Coffey to Garland County was offered to appellant, H. C. Warren, County Judge of Garland County, and these offers were refused. Based upon this state of the record rela tive to the title to the property here in question, we are of the view that the offer of the correction deed should have been accepted and now should be accepted by the County Judge on behalf of the county. There can be no doubt from this record that the county, from the date of the purchase of this property, has held the equitable title while the legal title remained in Dr. Coffey in trust for the county. This transaction created an implied trust. Such trusts are those whieh are deducible from the transaction as a matter of clear intention but not found in the words of the parties or which are superinduced upon the transaction by operation of law as a matter of equity, independent of parties' particular intention. Hunt v. Hunt, 202 Ark. 130, 149 S. W. 2d 930.\\nThe remaining question is whether the appellee, Hill A. Wheatley, indirectly transacted business for profit with the Ouachita General Hospital while acting as a public officer and chairman of the hospital's Board of Governors. The appellant argues that Wheatley violated his duties and obligations as a member of the Board of Governors of the hospital because he took an assignment of the hospital's note to Dr. George C. Coffey for the balance of the purchase price of the lot and received payment in full of the note plus $100 interest due thereon.\\nThe proof shows that Hill A. Wheatley did not enter into a contract with the hospital Board in connection with the purchase of the lot. Mr. Wheatley, in his private capacity, purchased a note bearing interest at 6 per cent per annum secured by a lien on real property. The note was paid and he received the interest called for under the note. Mr. Wheatley's contractual relations were with Dr. Coffey and not with the hospital Board.\\nThere can be no question but that Mr. Wheatley's transaction with Dr. Coffey placed him in a position of doing indirectly that which he could not do directly, i. e., do business with the hospital. He assumed a position in which his personal interest, as the holder of the note, might conflict with his fiduciary duty as a member of the Board of Governors. There was, therefore, a breach of trust. The exact situation is discussed in Restatement of Trusts 2d, \\u00a7 170, comment i: \\\"If the trust estate includes property which is subject to an encumbrance, the trustee violates his duty to the beneficiary if he purchases the encumbrance for himself individually.\\\"\\nIn these circumstances the fiduciary cannot make a profit from the transaction. If, for example, he has bought the encumbrance at a discount he cannot recover its face value from the trust estate, for by doing so he would realize a profit. But the receipt of simple interest, at a rate not shown to be excessive, is not regarded as a profit to the fiduciary. The rule is stated in the Restatement, supra, \\u00a7 206, comment h: \\\"If he [a trustee] purchases the encumbrance for less than its face value he cannot enforce it against the trust estate for its full face value, but he is entitled only to receive the amount which he paid for it vjith interest thereon\\\" (our italics).\\nThe rule was applied in Trimble v. James, 40 Ark. 393, where an administrator had saved the estate by purchasing claims at a discount, though he was compelled to borrow money at ruinous rates of interest in order to do so. We held that he was entitled to recover his actual outlay only, with interest, saying: \\\"The administrator is entitled only to actual advances, with simple interest at six per cent till repayment, without intervening rests.\\\" It follows that Mr. Wheatley is entitled to retain the $100 which he received as interest, as it represents only simple interest at a rate not shown or suggested to be excessive.\\nFrom what we have said above, the decree of the Chancellor is modified only to the extent indicated and affirmed, and the cause is remanded with directions to enter orders consistent with this opinion.\"}"
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diff --git a/arkansas/1705575.json b/arkansas/1705575.json
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+"{\"id\": \"1705575\", \"name\": \"King v. Hill\", \"name_abbreviation\": \"King v. Hill\", \"decision_date\": \"1957-04-22\", \"docket_number\": \"5-1252\", \"first_page\": \"747\", \"last_page\": \"750\", \"citations\": \"227 Ark. 747\", \"volume\": \"227\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T22:18:44.287882+00:00\", \"provenance\": \"CAP\", \"judges\": \"Harris, C. J., disqualified and not participating.\", \"parties\": \"King v. Hill.\", \"head_matter\": \"King v. Hill.\\n5-1252\\n301 S. W. 2d 9\\nOpinion delivered April 22, 1957.\\nWiley A. Brant on, for appellant.\\nJohn Harris Jones, for appellee.\", \"word_count\": \"1023\", \"char_count\": \"5955\", \"text\": \"George Rose Smith, J.\\nTwo separate suits against the appellee, George W. Hill, were consolidated hy the court below for the purpose of passing upon the defendant's plea of res judicata in each case. The chancellor sustained the plea in both cases and dismissed the complaints without a trial on the merits. The plaintiffs in each suit have appealed.\\nIn one of the complaints Thomas W. Morgan and his wife assert that they own two lots in Jefferson county, that Hill owns the property lying north of the plaintiffs ' lots, and that Hill is encroaching on the Morgans' land by maintaining thereon a butane gas tank and a portion of a fence that extends across the boundary line between the two tracts. The plaintiffs ask that Hill be required to remove the encroachments and to respond in damages for his wrongful use of the plaintiffs' land.\\nTo this complaint Hill pleads as res judicata the decree that was affirmed by this court in Morgan v. Hill, 224 Ark. 39, 272 S. W. 2d 67. That was also a dispute between these two neighbors. There, however, Morgan asserted in his complaint that the two tracts were separated by a public road and that Hill was maintaining fences and other obstructions in the public thoroughfare. Hill denied the existence of the alleged public street and successfully contended that he had title by adverse possession to the land within his fences.\\nWe agree with the chancellor's conclusion that Morgan's present complaint against Hill presents essentially the same issues that were involved in the earlier litigation between these parties. Although Morgan averred in the first case that a public street lay between the two properties, Hill denied this assertion and insisted that the parties were really adjoining landowners. According to the transcript in that case, which was considered at the hearing below, Hill testified in the former litigation that his land extended clear over to Morgan's property, that a fence separated the two, and that the butane gas tank owned by Hill was located on his side of the line. Thus Hill defended and won the prior case upon the theory that only a private boundary line was involved and that he owned the land on his side of the fence that marked the boundary. By his present complaint Morgan concedes that the parties are adjoining-landowners, but he contends that the division fence is on his side of the true boundary line. It is evident that this question \\u2014 the correct location of the boundary between the two tracts \\u2014 was within the issues presented by the former case and is therefore not open to re-examination. Timmons v. Brannan, 225 Ark. 220, 280 S. W. 2d 393. On .this branch of the case the decree is affirmed.\\nThe other complaint now before us was filed by Love King and others. These plaintiffs allege that they own property fronting on Thirty-second Street, that certain of Hill's fences and a part of his residence encroach upon the street, and that the plaintiffs have suffered special damages as a result of the interference with public trav el. The prayer is that Hill be required to remove the obstructions complained of. This is the same grievance that Morgan asserted in his first suit against Hill. Hill contends, and the chancellor held, that the earlier case was in effect a class suit on the part of Morgan and that the present plaintiffs, as members of the class, are therefore concluded by the prior decree.\\nThis contention is not sound. We may concede, without having to decide, that Morgan, had he chosen to do so, might have brought a class suit on behalf of himself and everyone else whose rights were affected by Hill's encroachments upon the public street. But Morgan did not frame his complaint on that theory. He did not purport to act for anyone except himself, which negatives the suggestion that his suit was a representative one. Rest., Judgments, \\u00a7 86, Comment b. Morgan alleged that he had suffered special injury from Hill's conduct ; without that allegation he would have had no standing in court. Ruffner v. Phelps, 65 Ark. 410, 46 S. W. 728. As far as the earlier complaint disclosed, Morgan was asserting only a cause of action personal to him. Had his neighbors examined that complaint they would not have been pointedly informed that the litigation was to afford them their only day in court.\\nHill argues that since a decree in Morgan's favor, requiring the removal of the obstructions in the street, would have afforded the plaintiffs the same relief they now seek, the earlier suit should be treated in substance as a class action. It is said that Hill should not be required to defend more than one suit involving the same fact situation. This argument was rejected, in similar circumstances, in Connor v. Thornton, 207 Ark. 1113, 184 S. W. 2d 589. There one inhabitant of a residential area had unsuccessfully brought suit to enjoin the operation of a sawmill, asserting it to be a nuisance. Later on other residents unsuccessfully brought an action for damages said to have been caused by the operation of the mill. In still a third suit the owners of the mill contended that the prior cases, though not representative in form, should be treated as class actions binding all in habitants of the area. In denying this contention we said: 'While it is unfortunate that a decree involving persons who have for the third time been required to defend must be set aside, we are not willing to say that plaintiffs in the Circuit Court action (which was not designated as a class suit) were acting for all property owners in the affected area. ' ' It follows that King and his coplaintiffs are not concluded by the earlier decree in favor of Hill. With respect to these appellants the decree is reversed and the cause remanded for further proceedings.\\nHarris, C. J., disqualified and not participating.\"}"
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diff --git a/arkansas/1734182.json b/arkansas/1734182.json
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--- /dev/null
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+"{\"id\": \"1734182\", \"name\": \"Jessup v. Hancock\", \"name_abbreviation\": \"Jessup v. Hancock\", \"decision_date\": \"1964-12-21\", \"docket_number\": \"5-3412\", \"first_page\": \"866\", \"last_page\": \"869\", \"citations\": \"238 Ark. 866\", \"volume\": \"238\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T22:12:26.145075+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Jessup v. Hancock.\", \"head_matter\": \"Jessup v. Hancock.\\n5-3412\\n385 S. W. 2d 24\\nOpinion delivered December 21, 1964.\\nTr a,nth am & Knauts, for appellant.\\nKirsch, Cathey & Broiun, Alfred J. Holland, for appellee.\", \"word_count\": \"1021\", \"char_count\": \"6080\", \"text\": \"Jim Johnson, Associate Justice.\\nThis is an action to oust a school director for usurpation of office. The facts are undisputed. Appellee Ed Hancock was a school director of the Knobel School District in Clay County on September 24,1963, when he was defeated for re-election by appellant Stephen Jessup. At the time appellant owned no real property in the school district, but purchased property on September 25th, the day following the election, and thereafter took the oath of office. On December 13th, 1963, appellee filed suit in Clay Circuit Court, \\\"Western District, against appellant, the complaint being in the. nature of an information by way of quo warranto, alleging that appellant was ineligible to serve as school director, that appellee was entitled to continue to serve until his successor was chosen, that appellant had usurped the office, and prayed that appellant be removed and appellee restored to office. In its judgment of March 30, 1964, the trial court found that appellant's acquisition of real property after the election was not sufficient to meet the requirements of Ark. Stat. Ann. \\u00a7 80-504.1 (Repl. 1960) (\\\"Director to be owner of real estate\\\"), and ordered appellee, restored to office. From the judgment comes this appeal.\\nAppellee filed his complaint under the provisions of Ark. Stat. Ann. \\u00a7 34-2203 (Repl. 1962) which states:\\n\\\"Whenever a person usurps an office or franchise to which he is not entitled by law, an action by proceedings at law may be instituted against him, either by the State or the party entitled to the office or franchise, to prevent the usurper from exercising the office or franchise. ' '\\nAppellant contends that the trial court had no jurisdiction to hear this matter and should have dismissed the complaint, asserting that appellee's suit was in fact an election contest. Our decision in Faulkner v. Woodard, 203 Ark. 254, 156 S.W. 2d 243, is clearly controlling. Quoting from Wood v. Miller, 154 Ark. 318, 242 S.W. 573, we said in the Faulkner case that: ' \\\" This is not, in fact, a contest of an election, for, as was said in Wheat v. Smith, 50 Ark. 266, 7 S.W. 161, there is nothing to contest concerning the result of the election. Appellee was elected, as condeded, but appellant is contesting his eligibility to hold the office, . . .\\\" '\\nAppellant's second point urged for reversal is that he did not have to own real estate on the exact day of the election, that is, September 24,1963, but could comply with Ark. Stat. Ann \\u00a7 80-504.1 if he owned real estate at the time he was commissioned by the County Clerk to enter upon his duties as such director.\\nSome of the statutes relative to school directors are: \\u00a7 80-504 (\\\"A school director shall be a bona fide resident and qualified elector of the school district in which he serves\\\"), \\u00a7 80-504.1 (\\\"Hereafter, no person shall be eligible to be a member of any school board in the State unless such member is the owner of real property in the school district in which he serves\\\"), and \\u00a7 80-505 (\\\"Each school director elected or appointed shall, within ten [10] days, after receiving notice of his election or appointment subscribe to the following oath: . . . The County Clerk upon receipt of oath prescribed for school director, shall immediately commission such persons and they shall enter at once upon their duties as school directors.\\\").\\nThis is a case of first impression in this jurisdiction. Our research reveals an excellent annotation in A.L.R. which thoroughly discusses the question here presented: \\\"Time as of which eligibility or ineligibility to office is to be determined,\\\" 88 A.L.R. 812, supplemented by 143 A.L.R. 1026. The marrow of the annotation is that where a constitution or statute specifies the time when the conditions of eligibility must be present, as where it is required that qualifications for public office exist at the time of election, the courts uniformly hold that a person not qualified at the time of election cannot make himself eligible subsequent to the election. On the other hand, if the constitution or statute requires such conditions (of qualification) to exist at the time of the commencement of the term of office or the time of the induction of the candidate into office and assumption of the duties (as distinguished from the time of election), it is clear that existence of conditions of eligibility at the commencement of the term or induction of the candidate into office is sufficient to qualify him for the office, irrespective of their existence at the time of the election. Where time for existence of conditions of eligibility is not specified, one group of courts takes the view that the word ' ' eligible\\\" relates to time of election, whereas another group of courts, constituting the majority, takes the view that ' ' eligible ' ' has reference to capacity not of being elected to office, but of holding office, and that therefore, if qualified at the time of commencement of the term and induction into office, disqualification of the candidate at the time of election is immaterial.\\nOur statute \\u00a7 80-504.1, \\\"Hereafter, no person shall be eligible to be a member of any school board in this State unless such member is the owner of real property in the school district in which he serves,\\\" does not specify that this condition of eligibility must exist at the time of election. After review of a number of cases from other jurisdictions, it is our view that the better rule is that, where it is not otherwise specified in our statutes or constitution, eligibility means being qualified at the time of commencement of the term and induction into office. This is consistent with this court's reasoning in Jones v. Duckett, 234 Ark. 990, 356 S.W. 2d 5, and Johnson v. Darnell, 220 Ark. 625, 249 S.W. 2d 5, which, while not in point here, do relate to eligibility and commencement of term of office.\\nReversed and the cause dismissed.\"}"
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diff --git a/arkansas/1748152.json b/arkansas/1748152.json
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--- /dev/null
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+"{\"id\": \"1748152\", \"name\": \"CITY OF NORTH LITTLE ROCK et al v. Jack L. GRAHAM et al\", \"name_abbreviation\": \"City of North Little Rock v. Graham\", \"decision_date\": \"1983-03-14\", \"docket_number\": \"82-257\", \"first_page\": \"547\", \"last_page\": \"549\", \"citations\": \"278 Ark. 547\", \"volume\": \"278\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T01:03:29.406009+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hickman, J., concurs.\", \"parties\": \"CITY OF NORTH LITTLE ROCK et al v. Jack L. GRAHAM et al\", \"head_matter\": \"CITY OF NORTH LITTLE ROCK et al v. Jack L. GRAHAM et al\\n82-257\\n647 S.W.2d 452\\nSupreme Court of Arkansas\\nOpinion delivered March 14, 1983\\n[Rehearing denied April 11, 1983.]\\nJim Hamilton, City Atty., for appellants.\\nCharles L. Carpenter and Charles L. Carpenter, Jr., for appellees.\\nGill, Skokos, Simpson, Buford ir Owen, P.A., for amicus curiae Arkansas Municipal League.\", \"word_count\": \"818\", \"char_count\": \"4743\", \"text\": \"Richard B. Adkisson, Chief Justice.\\nAppellee, Jack L. Graham, brought suit on behalf of citizens and taxpayers of North Little Rock to declare the \\\"public safety fee\\\" collected pursuant to City Ordinance No. 5202 unconstitutional as an illegal exaction and asked that appellant, the City of North Little Rock, be required to refund monies illegally collected pursuant to the ordinance. The Pulaski Chancery Court granted the relief requested. On appeal we affirm.\\nOn January 5,1981, the North Little Rock City Council enacted Ordinance No. 5202 for the purpose of raising $700,000 so that the policemen and firemen of North Little Rock could receive salaries and benefits commensurate with those received by Little Rock policemen and firemen. The $700,000 was to be collected by assessing a $3.00 per month \\\"public safety fee\\\" on the water bill of each household, business, and apartment residence in North Little Rock. The ordinance also provided that persons receiving $6,000 or less in salary be exempt from the charge. Approximately $343,620 was collected beginning on January 26, 1981, and was placed in the general fund of the city.\\nOn April 13, 1981, the city council adopted Ordinance No. 5240 which proposed a city sales and use tax and provided that Ordinance No. 5202 would be repealed \\\"when and if the citizens of North Little Rock approve the levy of the said sales and use tax.\\\" The voters approved Ordinance No. 5240 on May 19, 1981, but it did not go into effect until July 1, 1981, pursuant to Ark. Stat. Ann. \\u00a7 19-4514 (e) (1) (Repl. 1980). Meanwhile, the city continued to collect the \\\"public safety fee\\\" until the end of June, although it later refunded the amounts collected between May 19 and July 1.\\nThe first question which we must decide is whether the public safety fee created by Ordinance No. 5202 was a fee or a tax. If it was a tax, the ordinance is void as an illegal exaction, since it was never voted upon by the voters as required by Ark. Stat. Ann. \\u00a7 17-2002 (Repl. 1980). If it was a fee, it was a valid enactment outside the scope of Ark. Stat. Ann. \\u00a7 17-2002 which has no application to fees.\\nTaxes are enforced burdens exacted pursuant to statutory authority. Miles v. Gordon, 234 Ark. 525, 353 S.W.2d 157 (1962). Municipal taxes are those imposed on persons or property within the corporate limits, to support the local government and pay its debts and liabilities, and they are usually its principal source of revenue. 16 E. McQuillin, Municipal Corporations \\u00a7 44.02 (3rd ed. 1979).\\nThere is a distinction between a tax imposed for general revenue purposes and a fee charged in the exercise of police power. Parking Authority of Trenton v. Trenton, 40 N.J. 251, 191 A.2d 289 (1963). An example of a fee charged in the exercise of police power is found in Holman v. City of Dierks, 217 Ark. 677, 233 S.W.2d 392 (1950). In Holman we held that an \\\"annual sanitation charge\\\" of $4.00 per business and residence which was to pay for fogging the city with an insecticide three times a year was a fee \\\"for services to be rendered\\\" and not a tax. In Vandiver v. Washington County, Ark., 274 Ark. 561, 628 S.W.2d 1 (1982) we considered whether an annual $15 charge for emergency medical services was a fee or a tax. We concluded that it was a fee, but we note that in that case the people had voted on and approved the charge.\\nHere, it is undisputed that the people never voted on the $3.00 charge and that the charge is to pay for a salary increase for policemen and firemen. Therefore, it is a payment exacted by the municipality as a contribution toward the cost of maintaining the traditional governmental functions of police and fire protection. See Olustee Co-operative, Association v. Oklahoma Wheat Utilization Research & Market Development Comm., 391 P.2d 216(Okla. 1964). It is not for a specific, special service such as the spraying for insects but is a means of raising revenue to pay additional money for services already in effect. Therefore, we conclude that this $3.00 charge is a tax and not a fee.\\nOther issues presented by this case are either rendered moot by our decision or were not argued on appeal. The trial court's order is therefore affirmed.\\nAffirmed.\\nHickman, J., concurs.\"}"
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diff --git a/arkansas/1875350.json b/arkansas/1875350.json
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+"{\"id\": \"1875350\", \"name\": \"CITY OF MARIANNA, Martin CHAFFIN, Don CAHOON, Ed BROWN, Robert \\\"Bub\\\" DAVIS, Donnie EDWARDS, and Wilson KELL v. THE ARKANSAS MUNICIPAL LEAGUE, Administrator, MUNICIPAL LEAGUE DEFENSE PROGRAM\", \"name_abbreviation\": \"City of Marianna v. Arkansas Municipal League\", \"decision_date\": \"1986-07-14\", \"docket_number\": \"86-131\", \"first_page\": \"473\", \"last_page\": \"474-B\", \"citations\": \"289 Ark. 473\", \"volume\": \"289\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T19:27:57.942941+00:00\", \"provenance\": \"CAP\", \"judges\": \"Holt, C.J., not participating.\", \"parties\": \"CITY OF MARIANNA, Martin CHAFFIN, Don CAHOON, Ed BROWN, Robert \\u201cBub\\u201d DAVIS, Donnie EDWARDS, and Wilson KELL v. THE ARKANSAS MUNICIPAL LEAGUE, Administrator, MUNICIPAL LEAGUE DEFENSE PROGRAM\", \"head_matter\": \"CITY OF MARIANNA, Martin CHAFFIN, Don CAHOON, Ed BROWN, Robert \\u201cBub\\u201d DAVIS, Donnie EDWARDS, and Wilson KELL v. THE ARKANSAS MUNICIPAL LEAGUE, Administrator, MUNICIPAL LEAGUE DEFENSE PROGRAM\\n86-131\\n712 S.W.2d 305\\nSupreme Court of Arkansas\\nOpinion delivered July 14, 1986\\n[Supplemental Opinion on Denial of Rehearing September 29, 1986.]\\nDaggett, Van Dover, Donovan & Cahoon, by: Robert J. Donovan, for appellant.\\nWinston Bryant and William G. Fleming, for appellee.\", \"word_count\": \"585\", \"char_count\": \"3570\", \"text\": \"Robert H. Dudley, Justice.\\nThe appellants, the City of Marianna, its mayor and aldermen, filed this suit against the Home Indemnity Company and appellee Arkansas Municipal League, administrator for the Municipal League Defense Program. The suit seeks an order requiring the Home Indemnity Company and appellee Municipal League Defense Program: (1) to pay all costs incurred in defending a voting rights action that was filed against appellants by third parties in a United States district court; (2) to pay for any liability which might be assessed in that suit; and (3) to enter a declaratory judgment determining which of the defendants' coverage is primary and which is secondary. After various pleadings were filed, each of the parties filed a motion for summary judgment. The trial court granted summary judgment dismissing appellee Municipal League Defense Program from this suit. In addition, the trial court granted that part of appellants' motion asking that Home Indemnity Company be ordered to pay the costs of defending the United States district court action. No action has been taken yet by the trial court on that part of this lawsuit which seeks a declaratory judgment that Home Indemnity Company is liable for damages. In summation, there are still issues pending in the trial court between appellants and the Home Indemnity Company. Appellants seek to appeal only that part of the action involving appellee Municipal League Defense Program.\\nWe dismiss the appeal because the order appealed from is not a final order, a jurisdictional requirement which we are obliged to raise even when the parties do not. 3-W Lumber Co. v. Housing Authority for the City of Batesville, 287 Ark. 70, 696 S.W.2d 725 (1985).\\n718 S.W.2d 946\\nARCP Rule 54(b) provides that when multiple parties are involved, or where more than one claim is presented, the trial court may direct the entry of a_/z\\u00abc/judgment as to one or more but fewer than all of the parties and claims only upon an express determination that there is no just reason for delay and upon the express direction for the entry of the judgment.\\nHere, the order appealed from dismissed neither all of the parties, nor all of the claims. Rule 54(b) specifically applies. Inasmuch as the order did not comply with the rule, no final judgment has been entered and no appeal may be taken at this stage of the proceeding.\\nAppeal dismissed.\\nHolt, C.J., not participating.\"}"
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diff --git a/arkansas/1882742.json b/arkansas/1882742.json
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+"{\"id\": \"1882742\", \"name\": \"William Scott WELLS v. STATE of Arkansas\", \"name_abbreviation\": \"Wells v. State\", \"decision_date\": \"1990-10-29\", \"docket_number\": \"CR 90-154\", \"first_page\": \"471\", \"last_page\": \"475\", \"citations\": \"303 Ark. 471\", \"volume\": \"303\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T22:01:47.884183+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William Scott WELLS v. STATE of Arkansas\", \"head_matter\": \"William Scott WELLS v. STATE of Arkansas\\nCR 90-154\\n798 S.W.2d 61\\nSupreme Court of Arkansas\\nOpinion delivered October 29, 1990\\nWilliam R. Simpson, Jr., Public Defender, and Thomas B. Devine III, Deputy Public Defender, by: Didi H. Sailings, Deputy Public Defender, for appellant.\\nSteve Clark, Att\\u2019y Gen., by: Joseph V. Svoboda, Asst. Att\\u2019y Gen., for appellee.\", \"word_count\": \"1163\", \"char_count\": \"6649\", \"text\": \"Dale Price, Justice.\\nWilliam Scott Wells was convicted of kidnapping under Ark. Code Ann. \\u00a7 5-11-102 (1987) and sentenced to life imprisonment. He argues his conviction of a Class Y felony was error as there was uncontroverted evidence the victim was voluntarily released in a safe place. We affirm.\\nDena Daniel testified that on June 21, 1989, she drove to a service station to buy gasoline for her automobile. The appellant saw her leave and followed her home. According to Daniel, the appellant approached her in her garage while she was unloading her car and invited her to a party. When she did not consent, he pulled a pistol out of his pants, pointed it at her and forced her into his automobile. With the pistol in his lap, he then drove to the Governor's Inn, a west Little Rock Motel. Upon entering the lobby, Daniel ran toward a group of women at the desk and started screaming. The appellant turned, walked out of the lobby and left the area.\\nOfficer Stubenrauch, Little Rock Police Department, testified he spotted appellant's car and license plate number which had been reported to police. He pursued him for some distance before the appellant, who was attempting to flee, wrecked his car. The officer identified a .9 millimeter automatic or semiautomatic weapon as being the same weapon he found in the glove box of the appellant's car.\\nLittle Rock Police Detective Larry Winn testified about a sworn statement taken from the appellant in the early morning hours of June 22,1989, in which the appellant indicated he had been told by \\\"Asmodeus\\\" (Satan) to go out and find a girl with blondish-red hair. His statement indicated he never pointed his gun at Daniel, but that he had shown it to her. The appellant told the police that subsequently he intended to put the gun in his mouth and fire it.\\nAlso found in the vehicle were a suicide note the appellant had written and a gray tote bag which contained six yellow tent stakes and links of rope. Daniel testified the appellant carried the bag with him as the two were entering the motel lobby. The appellant told the police in his sworn statement he planned to tie Daniel down with the rope and stakes. At trial he denied carrying this bag into the motel.\\nThe felony classification of kidnapping varies from a Class Y to a Class B, depending upon certain additional factors. Ark. Code Ann. \\u00a7 5-1 l-102(b) (1987), the decreased penalty kidnapping statute, provides in pertinent part:\\nKidnapping is a Class Y felony, except that if the defendant shows by a preponderance of the evidence that he or an accomplice voluntarily released the person restrained alive and in a safe place prior to trial, it is a Class B felony.\\nThe trial judge instructed the jury on the two alternative punishments, and the jury convicted the appellant of a Class Y kidnapping offense. The appellant diaims he voluntarily released Daniel alive in what he considered a safe place, the Governor's Inn. He claims nothing further was required to effect her freedom. He also contends that Daniel's release was voluntary, reasoning that while he may not have encouraged her to seek help, he did not prevent her from doing so. Testimony established the appellant did not have a hand on Daniel, an arm around her or a gun pointing at her when the two entered the motel. He contends that he did not tell her what to do, where to go or threaten her if she did not obey him.\\nIn determining the sufficiency of the evidence upon appeal, the court not only considers the testimony that tends to support the verdict, but also views the testimony in the light most favorable to the appellee. Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977); Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other, forcing or inducing the mind to pass beyond suspicion or conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). The standard of review in a criminal case is not whether the evidence eliminates a reasonable doubt, but simply whether the finding of fact is supported by substantial evidence. Broyles v. State, 285 Ark. 457, 688 S.W.2d 290 (1985).\\nThe state contends there is no evidence showing appellant voluntarily released Daniel so as to invoke Ark. Code Ann. \\u00a7 5-11-102(b) relying upon Woods v. State, 302 Ark. 512, 790 S.W.2d 892 (1990). There, the victim had been kidnapped and raped by the defendant in his car parked near the Arkansas School for the Blind. Hearing the victim scream, the school's coach opened the vehicle door and the victim scrambled to safety. The defendant argued that since he was no longer holding the victim and she was able to get out of the car on her own, the trial court should have allowed the voluntary, safe release instruction. We disagreed and found it was not error for the court to refuse to give that instruction since the issue of a voluntary, safe release was not raised by the evidence.\\nThe state argues that in this case, as in Woods, supra, it was the action by the victim herself that effectuated her escape rather than any action by the kidnapper which ultimately resulted in the safe release. The appellant did not take Daniel to the motel lobby with the intention of terminating the kidnapping. Rather, the appellant took Daniel through the lobby because the room he had rented was adjacent to the lobby area and one had to walk through the lobby in order to gain access to the room. Once in the lobby, Daniel was able to get away from appellant and run over to a group of people at the desk. The record reflects the only reason the appellant released his physical grip from Daniel's neck as they were entering the motel was so that he could open the door to the motel. He could not do this with his other hand or hold Daniel at gun point because he was carrying the tote bag containing the rope and tent stakes.\\nWe hold there was substantial evidence to support the appellant's conviction of a Class Y kidnapping offense inasmuch as he did not voluntarily release his victim.\\nIn accordance with Rule 11 (f) of the Supreme Court Rules, there were no adverse rulings to the appellant involving prejudicial error.\\nAffirmed.\"}"
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diff --git a/arkansas/1882892.json b/arkansas/1882892.json
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+"{\"id\": \"1882892\", \"name\": \"Bernays vs. Feild et al.\", \"name_abbreviation\": \"Bernays v. Feild\", \"decision_date\": \"1874-11\", \"docket_number\": \"\", \"first_page\": \"218\", \"last_page\": \"225\", \"citations\": \"29 Ark. 218\", \"volume\": \"29\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T17:45:35.119196+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Bernays vs. Feild et al.\", \"head_matter\": \"Bernays vs. Feild et al.\\n1. Vendor's Lien: Is assignable.\\nTlie lien of a vendor who executes a bond for title, inures to the benefit of an assignee of tlie purchase money note.\\n2. \\u2014In case of reassignment to vendor without recourse..\\nThe effect of the reassignment, to the vendor, of the purchase money note, without recourse, is to unite in him the debt and the right to enforce satisfaction under the lien for which he had contracted. This case distinguished from Williams v. Christian, 23 Ark., 25S. \\u2022\\nS. \\u2014 When the vendor has pcvrted with his security.\\nBut when the vendor, who also held under a title bond, has transferred it before the reassignment of the note, the foregoing rule does not apply.\\n4. Estoppel Equitable.\\nThe vendors of land whose bond for title had been assigned required their vendee t,o pay a note for the purchase money, which they had transferred to a nonresident, to a confederate receiver, before they would comply with the conditions of their bond in favor of the assignee ; and by that and other acts induced the assignee to pay other incumbrances and accept a deed to the land. Afterward the note which they had required paid to the receiver was reassigned to them. Held, that they were estopped to enforce it against the assignee of their bond for title.\\nAPPEAL from tbe Pulaski Chancery Court\\nHon. T. D. W. Yonley, Chancellor.\\nPose & Garland, for appellants.\\nM. W. Benjamin, contra.\", \"word_count\": \"2357\", \"char_count\": \"13338\", \"text\": \"Walker, J.\\nThe material facts out of which the questions of law arise in this case, are: that James Douglass, the owner of certain lots of land in the city of Little Rock, sold them to Eeild and Dolly, for the price of $550, and for the payment of which they executed to Douglass several promissory notes, thereafter to become due, and Douglass, in consideration thereof, executed to Eeild and Dolly his bond, conditioned, that if Eeild and Dolly should pay him the notes so executed, he, Douglass, would convey the lots to them by deed. Thereafter, Eeild and Dolly sold the lots to Rector, for the sum of $8,500, who in part payment of that sum assumed to take up the notes executed by Eeild and Dolly to Douglass, and execute to him his (Rector's) own notes, which was done, and to secure the further payment of said sum, Rector executed to Eeild and Dolly his note for $1,422, in consideration of which Eeild and Dolly executed to Rector their bond, reciting the consideration and the amount due by note as part of the purchase money, and covenanted that upon the payment of said note they would assign to Rector, Douglass' bond to them for title.\\nRector, for the consideration of five thousand dollars in confederate money, sold said lots to Bernays, and assigned Eeild and Dolly's bond to him, and also by a written indorsement on the bond requested Field and Dolly to assign to Bernays, Douglass' bond, as the note for $1,422 had been fully discharged by payment to Rutherford. In compliance with this request, Feild and. Dolly assigned Douglass' bond to Bernays, who, as the legal holder of the same, and upon the payment of Rector's notes to Douglass, procured from him a deed for the lots. The deed appears to have been executed on the 12th of June, 1863, and nearly three years after Feild and Dolly had assigned the note to Benedict, Hall & Co., residents of the city of New York, who, all the while until January, 1866, were the legal owners of the note, at which time Feild and Dolly settled their liabilities as assignors and took an assignment of the note from Benedict, Hall & Co., without recourse to them.\\nUpon the hearing of the cause in the court below, a decree was rendered in favor of Feild and Dolly, for the sum paid by them to Benedict, Hall & Co., against Bernays, decreed a specific lien on the lots for the payment of the same, with order of sale; that the cross bill of Rector and Bernays be dismissed, and that Bernays be enjoined from collecting a judgment in his favor against Rector for the money paid by him to Douglass.\\nFrom this decree both Bernays and Rector appealed.\\nIt is contended, on the part of Feild & Dolly, that the specific lien reserved by them upon the lots for the payment of the purchase money, and which passed by assignment of the notes to Benedict, Hall & Co., by force of the re-assignment of Benedict, Hall & Co. to them, reverted to them, and remained as perfect as if no assignment had ever been made. Whilst it is contended on the part of Bernays: 1. That the re-assignment to Eeild & Dolly was without recourse, and that no lien passed with the debt by virtue of such assignment. 2. That if such would, ordinarily, be the effect of the assignment, and that the lien did follow the debt, still, by the acts and conduct of Eeild & Dolly in this case, the lien was discharged, and that they are estopped by such acts from asserting their rights under it.\\nDouglass, who executed his bond for title upon the payment of the purchase money, held the naked legal title to the lots with a specific lien upon the lots for the payment of the purchase money; and the effect of the subsequent sales and assignment communicated subsequent liens upon the property for the payment of the purchase money upon the after sales, to be satisfied in their order, in the nature of subsequent mortgages. Moore v. Anders, 14 Ark., 626; Smith v. Robinson, 13 id., 534; Sullivan v. Hardy, 16 id., 145; Veasy v. Watkins, 18 id., 553.\\nAnd this lien enures to the benefit of the assignee of the note given for the payment of the purchase money, as fully as it did to the vendor. Moore v. Anders, 14 Ark., 626; Sullivan v. Hardy, 16 id., 145.\\nBenedict, Hall & Co. most clearly held a lien upon these lots for the payment of the note assigned to them; but it is contended that the re-assignment without recourse did not carry with it the lien, and in support of this position we have been referred to the case of Williams v. Christian, 23 Ark., 225.\\nWithout intending to question the correctness of that decision under the state of case there presented, we feel satisfied that it has no application in a case like the present.\\nIn the case of Williams v. Christian, the vendor assigned the note without recourse, which was construed to mean that the assignee relied solely upon the solvency of the payer of the \\u2022bill. But in this case the assignment was made to the vendor who had assigned the note, the effect of which was to unite in the vendor the debt and-the right to enforce satisfaction under the lien for which he had contracted. In the case of Kelly v. Payne, 18 Ala., 371, it was held that, \\\"If the vendor indorse the note and afterwards take it up, on the failure of the vendee to pay on maturity, or if the note comes back to his possession as his own, then, both the debt and the security for its payment are-united again in the vendor, and he may enforce payment by subjecting the lands to its satisfaction.\\\"\\nUpon the authority of this decision, as well as upon principle, we must hold that by force of such assignment, the rights of Feild & Dolly became as full and perfect as if no assignment had ever been made; and may be as fully enforced unless they shall be found to have waived their rights, \\u00f3r are estopped from asserting them, of which we will proceed to consider.\\nIn 1860, Feild & Dolly assigned the note of Rector for $1,422, to Benedict, Hall & Co., who sent it out to Wait for collection. The note was seized upon by Rutherford, the confederate revenue collector, and paid off by Rector in confederate money. Bernays, in his answer, which is responsive to the allegations of the bill, and being uncontradicted becomes evidence, says, that the note of Rector for $1,422, then under the control of the confederate receiver, was expressly required by Feild & Dolly to be paid off as an indispensable requisite to the contract then about to be made, and without which they would not part with their title bond on Douglass; and it was agreed that this should be done: and Feild & Dolly aver in their bill, that they caused Douglass to make to Bernays a deed for the lots. .\\nEector assigned Eeild & Dolly's bond to Bernays, and requested, by written indorsement on the bond, that they should assign Douglass' bond to Bernays, as the note had been fully discharged and paid by Eutherford, the confederate receiver; in accordance with which request, Eeild & Dolly assigned Douglass' bond for title to said Bernays, (in the language of the assignment) \\\" with all and singular the rights and privileges we hold therein.\\\" These terms, in any fair interpretation, embrace all interests, all rights, and could scarcely have been more explicit, if in express language they had said \\\"rights of lien.\\\" Eeild & Dolly, at this time, had no interest in the note; they had transferred it to nonresidents, who could scarcely, in view of then existing circumstances, have had any knowledge of what was transpiring within the confederate lines. Eector was interested in making this payment in depreciated confederate currency. Eeild & Dolly were interested in being relieved from their responsibility as indorsers. All of these acts tended to give assurance to Bernays, to consummate his purchase of the lots, and to pay the Eector notes to Douglass in order to get, as he supposed, a clear title, at least so far as related to Eeild & Dolly; who, not only assigned to Bernays their bond for title, which in effect entitled him to all the rights held by Eeild & Dolly under it, but also in express terms they assigned all the rights and privileges which they had acquired under the bond.\\nThese several acts, we think, were amply sufficient to induce Bernays to pay off the incumbrance created by Eector's notes to Douglass for the purchase money, and accept the title from Douglass, which otherwise he would not have done; and when such is the ease, the party inducing such contract is estopped from setting up any claim then existing against it, under the rule in equitable estoppels, which is, that \\\" where one by word or conduct willfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous conduct, the former is concluded from averring against the latter a different state of things as existing at the same time.\\\" 1 Spear's Equity, 550; Prather v. Frazier, 11 Ark., 249.\\nThe sale, as held in Kelly v. Payne, 18 Ark., above referred to with approval, rests upon the assumption that a re-assignment of the debt to the vendor unites in him the debt and the security for its payment and is inapplicable in this case, because before the time of the re-assignment of the note, Eeild & Dolly had parted with their security for payment by assignment to Bernays, and a deed had been made to him by Douglass to whom the bond was delivered and in effect canceled. It may have been, and probably is, true that all of the parties acted under the belief that the note of $1,422 was paid. Such, however, was not the effect of the payment to Butherford, the confederate states receiver, and ignorance of the law, under the state of case here existing, will not prevent an equitable estoppel. Tolen v. Nelson, 27 Barbour, 505.\\nThus considering the question of lien, we must hold that there exists none which can be asserted as against the lots so purchased by Bernays, and that the court below erred in rendering a decree in favor of Eeild & Dolly for the sum paid by them to Benedict, Hall & Co., and charging the lots conveyed to Bernays with the payment thereof.\\nBector, who was a defendant in the original bill, filed his cross bill against Eeild & Dolly and Bernays. And Bernays also filed a cross bill against Bector; both of which were dismissed with costs upon final decree.\\nBector, in his cross bill, sets forth no facts upon which he could claim the interposition of a court of chancery. He seeks to enjoin several notes executed by him to Douglass, and which were paid for and assigned by Douglas to Bernays, who had a clear right to an action at law against Rector, who should have made his defense at law, or have averred such facts as showed he had a defense which he could only assert in a court of equity, which he failed to do.\\nBernays had obtained a judgment at law against Rector, on the notes assigned to him by Douglass, and clearly had no right to further redress. It appears that his cross bill was dismissed, and we think properly. But upon what ground, after having dismissed both cross bills, the court proceeded to render a decree perpetually injoining Bernays' judgment at law, we are at a loss to conceive. The decree perpetuating the injunction must be reversed.\\nEeild & Dolly's right to equitable relief was based upon their right of lien upon the land which they had sold to Rector, and we have held that they had parted with their lien by the transfer of Douglass' bond to Bernays, and were estopped from asserting the lien. Thei-r right to a decree in equity must fail. Whatever rights they may have acquired by force of the reassignment of Rector's note to them by Benedict, Hall & Co., are clearly at law.\\nLet the decree dismissing the cross bills of Bernays and Rector be affirmed, and a decree rendered reversing that part of the decree which injoins Bernays' judgment against Rector, and a decree dismissing Eeild & Dolly's bill be rendered in this court, with costs.\"}"
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diff --git a/arkansas/1885723.json b/arkansas/1885723.json
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--- /dev/null
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+"{\"id\": \"1885723\", \"name\": \"NORWOOD and WIFE v. HOLLIMAN, Adm'r., etc.\", \"name_abbreviation\": \"Norwood v. Holliman\", \"decision_date\": \"1872-06\", \"docket_number\": \"\", \"first_page\": \"445\", \"last_page\": \"452\", \"citations\": \"27 Ark. 445\", \"volume\": \"27\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T23:48:50.424812+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"NORWOOD and WIFE v. HOLLIMAN, Adm\\u2019r., etc.\", \"head_matter\": \"NORWOOD and WIFE v. HOLLIMAN, Adm\\u2019r., etc.\\nDescents and Distributions. \\u2014 J. H. died, leaving surviving him six children, one of whom was E. H.; an administrator was appointed; E. H. married and diedj leaving surviving him his wife, Harriet L., and one minor child; the child died, leaving the said Harriet D. her sole heir, who afterwards intermarried with O. N. On petition in the Probate Court by the said C.N. and Harriet L., malting the administrator of J. H. party defendant, and asking- that the said Harriet L. be declared entitled to one sixth interest in all the real and personal estate of which the said J. H. died seized, and that the administrator be ordered to turn over the same to the said Han-iet L.: Held, on general demurrer, by the administrator:\\nFirst. That if Harriet L. was entitled to the estate descending to her from her former husband, it ought to come to her through his administrator, freed from his debts; and that the Probate Court had no power to declare that one sixth of the real estate of the said J. H. should be turned over to the said Harriet L., as the administrator only holds the estate for the payment of debts.\\nSecond. That the petition for distribution should have affirmatively, shown the condition and liabilities of the estate of the said J. H.;. what, if anything, remained for distribution after the payment of the debts; that all the distributees should have been made parties defendant and should allege a tender of bond as required by law. . \\u00ae\\nAPPEAL FROM OUACHITA CIRCUIT COURT.\\nIIon. George W. McCown, Circuit Judge.\\nEnglish English, Leake and Garland for Appellants.\\n\\\"We submit:\\nFirst. That the demurrer in the court below should have been overruled, as being general and not specifying the grounds of objection to the complaint. See section 112, Code of Practice.\\nSecond. That the bond to refund, to be given by an heir and distributee, under section 2, p. 49 Chapters Digest, is not'a prerequisite, but is discretionary with the administrator to demand, and the court to order such bond given.\\nThird. That, under chapiter 56, Goidd\\u2019s Digest, appellants were noj only entitled to the personalty claimed in the petition, and dower in the interest of Holliman in the lands owned by his father at the time of his death, (one sixth) but, under chapter 10, \\u201c Chapters Digest,\\u201d to the land absolutely..\\nU. M. Pose, for Appellee.\\nThe demurrers confessed everything stated in the petitions, but nothing not therein stated. They were properly sustained, because:\\nFirst. It did not appear that the Probate Court had any jurisdiction in the premises, it not appearing that the letters in either case had been issued by the Probate Court of Ouachita county.\\nSecond. It did not appear, with any degree of certainty, what the estate was that was to be distributed.\\nThird. It did not appear that the debts were paid, and that the estate was in a condition for distribution.\\nFourth. Mrs. Norwood and her husband could not bring these suits as heirs, or claiming as such. Take the first case for example. They could not sue in their own names for the distributive share of Elijah B. in the estate of his father. Tliis could only be done by the administrator of Elijah B. So that the assets coming to him might be first applied to the payment of his debts. By this proceeding the applicants would have intercepted the estate, and cut off the creditors, which cannot be done. Pryor vs. Byburn, 16 Ark., 672 ; Slocomb vs. Blackburn, 18 Id., 319 ; Atkins vs. Guice, 21 Id., 179; Lemon vs. Bector, 15 Id., 436; Pope vs. Boyd, 22 Id., 535 ; Anthony vs. Peay, 18 Id., 30; Worsham vs. Field, Id., 448.\\nFifth. The petitioners should have tendered a refunding bond, as required by statute. Gould\\u2019s Big., ch. 4, sec. 150; Chapters of Digest, p. 48 ; Keith \\u00a7 Jolly, 26 Miss., 131; Cannon vs. Benson, Id., 395 ; Logan vs. Bichardson, 1 Penn., S. B., 372.\\nSixth. No one was made defendant except the administrator, whereas all parties in interest should have been brought in, and should have had ten days\\u2019 notice of the application i Gould\\u2019s Dig., ch. 4, sec. 154 ; Chapters of the Digest, p. 49, sec. 6 ; Murff vs. Frazier, 41 Miss., 418 ; Valentine vs. Wetherill, 31 Barb., 655;' Cargile vs. Harrison, 9 B. Mon., 518 ; Haiokins vs. Craig, 1 Id., 27 ; Boyettvs. Kerr, 7 Ala., 9 ; Porter vs.- Porter, 7 How.,'(Miss.) 106; Shattuck vs. Young, 2 S. M, 130 ; Bobinson\\u2019s Appeal, 1 Chip., (Vt.) 357\\nSeventh. This being an ancestral estate, on the part of the father, certainly as to lands under the statute of descents contained in Goidd\\u2019s Digest, on the death of Eugenie Maria it went \\u201cto the line on the part of the father, whence it came, not in postponement, but in exclusion of the mother\\u2019s line.\\u201d Kelly vs. McGuire,-lb Ark., 555.\", \"word_count\": \"2473\", \"char_count\": \"14288\", \"text\": \"McClure, C. J.\\nIn November of 1868, James Holliman died, leaving surviving him six children, one of whom was Elijah B. Holliman; the names of the other five do not appear of record. The estate, real and personal, of James Holliman, deceased, seems to have been worth $25,000 or $30,000. In February of 1869, Richard T. Holliman, the appellee in this suit, was appointed administrator on the estate of James Holliman, deceased.\\nIn January, 1871, Charles M. Norwood, and Harriet L., his wife, filed their petition in the 'Probate Court of Ouachita county, asking that the said. Harriet L. Norwood be declared entitled to a one-sixtli interest in all the real and personal estate -of which James Holliman died seized, and that the administrator of said estate, Richard T. Holliman, be ordered to pay and turn over to the said Harriet L. Norwood, one sixth interest of said estate of James Holliman, deceased. The administrator,'Richard T. Holliman, is made a party defendant to this complaint, and it alleges that Elijah B. Holliman was a son of James Holliman, deceased; that in December of 1868, said Elijah B. Holliman died, leaving surviving him his wife, the said Harriet L. (the present appellant) and one child, Eugenia Maria Holliman; that said child, Eugenia Maria Holliman, died in August, 1870, leaving the said Harriet L. her sole heir; that in December of 1869, she, the said Harriet L., intermarried with her present husband, Charles M. Norwood. These are the facts upon which she bases her complaint, and upon which she bases her claim to the relief asked. In the Probate Court the administrator filed a general demurrer, which was by the court sustained. An appeal was taken to the Circuit Court; the demurrer was again sustained, \\u2022and an appeal taken to this court.\\nSection 112 of the Code, in declaring the effect of a demurrer, says: \\\" The demurrer shall distinctly specify the grounds of the objection to the complaint; unless it does so, it shall be regarded as objecting, only, that the complaint does not state facts sufficient to constitut\\u00e9 a cause of action.\\\" It is in this light we shall examine this case. . \\u2022\\nThe question presented, then, is : do the facts stated entitle the appellants to the relief asked? A response to this inquiry involves the examination of two statutes. The first of which is the tenth section of the statute regulating descent and distribution, as found in Gould's Digest (page 422), which is as follows: \\\" In cases where the intestate shall die without descendants, if the estate come by the father, then it shall ascend to tlie father and his heirs; if by the mother, the estate, or so much thereof as came by the mother, shall ascend to the mother and her heirs; but if the estate be a new acquisition, it shall ascend to the father for his lifetime, and then descend, in remainder, to the collateral kindred of the intestate, in the manner provided in this act; and in default of a father, then to the mother for her lifetime; then to descend to the collateral heirs, as before provided.\\\"\\nThe estate in this instance -was not a \\\" new acquisition;\\\" it came by the \\\" line of the father.\\\" The facts alleged by Harriet L. Norwood, in her complaint, would not allow her to the relief asked under this statute, and there could be no error in sustaining a demurrer to the complaint, for the facts stated do not, to use the language of the code, \\\" constitute a. cause of action.\\\"\\nThe counsel for the appellants urge that the line of descent and distribution, as fixed by the section just quoted, has been, superseded, and that the facts alleged in the complaint entitle her to the relief asked tinder the provisions of section one of the chapter in the new digest (page 65), regulating the descent and distribution of the property of deceased persons, dying intestate. The section thus alluded to is, in substance, as follows \\u2014 that the property shall descend :\\nFirst. To his children, or their descendants, in equal parts.\\nSecond. .If there be no children or their descendants, then to Iris father, mother, brothers and sistei's, and their descendants in equal parts, etc.\\nUnder the provisions, of this section the appellants claim that at the death of Elijah 13. Ilolliman the one-sixth interest of the estate of James Ilolliman, deceased, which, by the law, passed to tli\\u00e9 said Elijah B., descended to Eugenia Maria Holliman; and that at the death of the said Eugenia, there being no children, or their descendants, or father (living), that this one-sixth interest in the estate of James Holliman passed to Harriet L. Norwood, the mother of said Eugenia Maria Ilolliman, as her sole heir.\\nCounsel for tlie parties .to this suit insist that the question thus presented involves the validity of tho chapters of what is called the \\\"new digest.\\\" While wc have no disposition to evade a question presented by the record in this ease, wo think it better to first examine the question presented by the demurrer, and see if the complaint would be sustained under either of the statutes from which we have quoted; for if it shall appear that the complaint does not state facts sufficient to constitute a cause of action under either statute, it might he claimed, that so much of the decision as related to the constitutionality and validity of the statutes was a mere obiter dictum. This being true, and the validity of the chapters of the digest being a matter of some doubt in the mind of the profession, we prefer to settle the question of their legality in a case where the opinion of the court would not be regarded as mere dictum.\\nFrom the beginning to the end of the complaint there is nothing in it which advises the court of the condition of the estate of James Holliman, deceased. It is true that the complaint states that the estate was worth some twenty-five or thirty thousand dollars; but what its liabilities were, is nowhere stated, nor is it' alleged that the administrator had, or would have, a single dollar to distribute among the heirs of James Holliman, deceased, after the payment of his debts. Without these facts appearing affirmatively, the court below could not do otherwise than sustain the demurrer.\\nCounsel for the appellee urge that Mrs. Norwood and husband cannot bring the suit, on the ground that the toleration of such a practice would intercept the estate of Elijah B. Holliman, deceased, and cut off Ms creditors. In this we agree with Mm.\\nMrs. Norwood had no right to bring such an action. If she was ' entitled to the estate descending to her former husband, it ought to have come to her through his administrator, freed from Ms debts. The Probate Court had no power to declare that one-sixth of the real estate should be turned over to Mrs. Norwood, as the administrator only holds the estate for the payment of debts.\\nSection one of the chapters of the new digest (page 48) declares that an executor or administrator shall not be compelled to make distribution until one year after the date of his letters. Section two of the same chapter declares that an administrator shall not be compelled to make distribution within two years after the date of his letters, unless-ordered to do so by the court, until bond and security be given by the legatee or distributee, etc.\\nCounsel for the appellee insists that the complaint should recite a tender of the bond required by section two, before he is entitled to an order for distribution. In this view-we agree with him. The complaint, as has been stated, does not mention the names or residences of any one of the \\u2022other distributees. This, we think, it should do, as section six of the chapter, now under discussion, declares that the distributees not applying for distribution, shall be notified in writing of such application ten days before any such order shall be made, etc. The thirty-third section of the same chapter also shows conclusively that the other distributees should be made parties, as it provides that guardians ad litem should be appointed for such of the heirs as are not residents of the county. There are many reasons why the other distributees should be made parties to any suit or proceeding which has for its purpose the distribution of the effects of an estate. The order of distribution, when made by the court, is in the nature of a judgment, and ought to settle the rights and interests of all the distributees. If this proceeding had been for the partition of an estate, the distributees would have had to have been made parties defendants, and we can see no reason for the relaxation of such a rule where the complaint asks for the distribution of an estate. \\\"That portion of Gould's Digest, page 129, which relates to legacies and distribution, is very similar to the chapter of the new digest on this subject; and so far as the old or new digest, on the subject of administration, is concerned, the complaint does not come within either. These things being true, the discussion of the constitutionality or the unconstitutionality of the chapters of 'the new digest becomes unnecessary, and all argument upon that subject, from this point onward, would be nothing but dictum, and treated as such by the profession. While it might, to some extent settle conflicting opinions, held by members of the bar, it is our experience that dictums, upon questions not necessarily before the court, seldom give the universal satisfaction as though the opinion had been prepared in a case where the question was directly involved.\\nThe judgment of the Ouachita Circuit Court is affirmed.\"}"
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+"{\"id\": \"1887772\", \"name\": \"Lusk v. Perkins & George\", \"name_abbreviation\": \"Lusk v. Perkins & George\", \"decision_date\": \"1886-11\", \"docket_number\": \"\", \"first_page\": \"238\", \"last_page\": \"247\", \"citations\": \"48 Ark. 238\", \"volume\": \"48\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T23:02:42.173312+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Lusk v. Perkins & George.\", \"head_matter\": \"Lusk v. Perkins & George.\\n1. Pleading and Practice: Reply.\\nA reply to an answer is not admissible unless the answer contains a counter claim or set-off, and if filed, should be stricken out.\\n2. County Warrants : Cancellation, notice, etc.\\n\\u2022 The notice of the order of the county court, calling in county warrants for cancellation and re-issue, must be published in more than one newspaper, or the holders of the warrants will not be barred by failing to present them within the time required by the order; and in the absence of any record evidence to the contrary, parol evidence to prove that it was published in only one newspaper is admissible.\\n3. Service of Notice: Recital of, in judgment.\\nThe recital in a judgment, based upon constructive notice by publication previously ordered by the court, \\u201cthat due and legal notice of said order had been given as required ly law,\\u201d will be construed, in connection with the previous order, and if that direct insufficient, notice the recital is not evidence of proper notice.\\n4. Same : Same. Order for publication of notice.\\nNo presumption can be indulged in favor of the legality of the notice of an order of the county court for calling in county warrants. It. is an order which seeks to conclude the rights of parties by publication or constructive service, and a strict compliance with the requirement of the statute must be shown.\\n5. Same : Evidence of purpose for which it was issued.\\nCounty warrants regularly issued are themselves evidence of the purpose for which they were issued.\\n6. Same: Issued during the war, receivable for fines. Mandamus.\\nA county warrant issued during the war for ordinary county expenses is receivable in payment of fines; andan officer charged with the . collection of the fine may be compelled by mandamus to receive it.\\nAPPEAL from Sevier Circuit Court.\\nHon. H. B. Stuart, Judge.\\nJones f Martin, for appellant.\\n1. All fines are payable in county scrip. Mansf. Dig., sec. 5860; US Ark., 870. The constable should have received it, if valid, and mandamus was the proper remedy. 88 Ark., 317; 33 ib., J/jO.\\n2. The scrip upon its face shows that it was regularly issued for the legitimate expenses of the county, and until the prima facie case thus made is rebutted by evidence, it must be treated as a valid warrant. 38 Ark., 877.\\n3. The order calling in the warrants shows that it was to be published in but one newspaper. This was not a compliance with the statute, and could not aflect the scrip- holder. Mansf. Dig., sec. 11]\\u00a1,8; 33 Ark., 71\\u00a1.0; 10 Fed. Rep., 891.\\n4. The court erred in not permitting appellant to prove that there was no such evidence of the publication of the order as is required by the statute. 10 Fed. Rep., \\u25a0891.\\nCompton Compton, for appellees.\\nParol testimony was clearly inadmissible to contradict the order and judgment of the board of supervisors, which recited that \\u201c due and legal notice of said order having been given as required by law.\\u201d 11 Ark., 368; Ilf. ib., 9; .If, ib., 181\\u00a1,.\\nThis court will presume, in the absence of evidence to the contrary, that there was proof before the board of the publication in more than one newspaper. See 39 Ark., -337 ; 17 ib., 530; 1/3 ib., 310.\", \"word_count\": \"2955\", \"char_count\": \"17183\", \"text\": \"Gatewood, Special Judge.\\nAppellant Lusk was fined by appellee Perkins, a justice of the peace, of Sevier county, and in payment of said fine tendered to appellee, George, as constable, a county warrant issued in 1862, by order of the Sevier county court, for ordinary county expenditures; which warrant the appellee, George, as constable, refused to receive.\\nThe warrant had been presented to the county treasurer of Sevier county, and indorsed \\\"not paid for want of funds.\\\"\\nThis suit was in the Sevier circuit court, for the purpose of obtaining a mandamus to compel George, as constable, to receive said warrant in payment of said fine, and for a restraining order against the justice of the peace, Perkins, 4o restrain him from issuing an execution against appellant for said fine. The appellees answered, admitting the allegations of the complaint, except as to that part which alleges the warrant was issued \\\"for the legitimate expenses and liabilities of said county, and not in aid of the rebellion or other unlawful purpose;\\\" as to which they \\u2022say, \\\"they have no knowledge or information sufficient to form a belief; \\\" and they deny that said warrant was issued for legitimate county purposes.\\nThey set up as a further defense, that the board of supervisors of Sevier county, on the 9th day of July, 1873, made an order calling in for the purpose of examination, cancellation and reissuance, all outstanding warrants of the \\u2022county; that the notice required by law, and the order of said court were duly given, and that the warrant tendered to the constable was never presented to the board of supervisors, in accordance with said order, and was therefore void.\\nA general demurrer was filed with the answer, which does not appear to have been acted upon by the court.\\nA reply was filed by appellant, admitting the making of the order by the board of supervisors, denying that the order fixed the time for presentation of the warrants three, months from its date, and denying that the notice of said order was given as required by law.\\nUpon motion of appellees, the court struck out the reply of appellant, to which he excepted. A trial was had and appellant offered to prove by the clerk and sheriff' both of whom were clerk and sheriff in 1873, when the order calling in the warrants was made, that the order of the board of supervisors was published in only one newspaper in the state: by the sheriff'that he published the notice in only one newspaper in the state, and the same fact by the clerk, and by him also, that there was no record in his office that any notice at all of the order of the board had ever been published. An objection to this testimony was interposed by appellees, and sustained by the court; to-which ruling of the court appellant excepted.\\nAppellant asked eight declarations of law, the first seven of which being condensed, asked the court to declare that section 1148 of Mansfield's Digest required that-the order of the board of supervisors of Sevier county, should be published in newspapers of the state, and before the order could be effectual to bar the warrant presented,, the notice required by the statute must have been published in more than one newspaper in the state. Eighth \\u2014that the warrant in evidence, is proof of its own issue- and of the purpose for which it was issued, unless contradicted by proof; the court refused to give, in any form,, either of these instructions, and appellant excepted.\\nAppellees asked two declarations of law: First \\u2014 that the allegation in plaintiff's complaint, that the warrant tendered to defendant, George, as constable, in payment of his fine, was issued by order of the county court of Sevier county, to pay the legal expenses and legitimate liabilities of the county, and not in aid of the rebellion or other unlawful purposes, was a a material allegation in said complaint, and being contoverted by the defendant, the court must find for the defendant, unless said allegation has-been proven.\\nThe second instruction asked for, is quite lengthy, but in substance is as follows: \\\"That the judgment or order of a court of record being rendered by public authority, is presumed to be faithfully recorded, and is the only proper legal evidence of itself, and is conclusive of the fact of the rendition of the judgment, and all legal consequences resulting therefrom; and if it appears from the record of the judgment of- Sevier county court, read in evidence in this cause, that due and legal notice had been given of the order of the county court, calling in the warrants of the county, said record is conclusive evidence of that fact, and parol evidence is not admissible to contradict the record, and the court will find for defendants.\\\"\\nThe court gave both declarations of law asked for by defendants; to the giving of which appellant excepted. Judgment was rendered for appellees. Motion for new trial was filed, which was overruled; bill of exceptions setting out evidence, exceptions, etc., were taken, and an appeal prayed and granted.\\nAppellant complains of error by the court: Eirst \\u2014 in striking out his reply to appellees' answer.\\nSecond \\u2014 in refusing to permit him to prove by the sheriff and the clerk of the county, that the order of the board of supervisors was published in only one newspaper in the state; and that there was no record evidence that any notice at all of the order had ever been published.\\nThird \\u2014 in refusing to declare the law, as asked by him, and declaring it as asked for by appellees.\\nThe court did not err in striking out the reply of appellants. \\\"There can be no reply except upon the allegation of a counter claim or set-off.\\\" Mansfield's Digest, see. 50J\\u00a1.3; Newman on Pleading and Practice, page 627.\\nA reply improperly filed should be stricken out. Cannon v. Davies, 33 Ark., 56; Abbott v. Rowan, ib., 593.\\nDid the court err in refusing to permit appellant to introduce proof showing that the order of the board of supervisors of Sevier county had been published in but one newspaper in the state, and that there was no record evidence that said notice Had ever been published? Section 1147, of Mansfield's Digest, empowers the county court to call in the outstanding warrants of the county, for the purpose of redeeming, cancelling or classifying them, or for any lawful purpose.\\n1. Pleading and Practice: Reply.\\n2. Service op Notice: Recital of, in judgment.\\nSection 1148, of same, provides for giving notice to the holders of county warrants when to present the same for redemption, cancellation, reissuance or classification; the sheriff of the county to give the notice \\\"by putting up at the court house door, and at the election precincts in each township of said county, at least thirty days before the time appointed by the order of said court for presentation of said warrants, a true copy of the order of said court in the premises, and publishing the same in newspapers printed and published in the state of Arkansas, for two weeks in succession, the last insertion to be at least thirty days before the time fixed by said court for the presentation of said warrants.\\\" Allen v. Bankston, collector, 33 Ark., 740, was a case in which the county court of Desha county had made an order calling in county warrants similar to the one made by the board of supervisors of Sevier county, in this case, but the sheriff published the notice in but one newspaper in the state. Allen failed to present bis warrants, although he had personal notice of the order. In that case this court held that \\\" when the notice \\u2022of an order of the county court, calling in warrants for cancellation is published in only one newspaper, the warrants will not be barred by the failure of the holder to present them within the time required by the order, though he have actual notice of it. That the statute manifestly requires the order to be published in more than one newspaper, leaving the selection of the paper to the discretion of the sheriff.\\\"\\nThe publication of the order of the board of supervisors of Sevier county for the length of time required by law in more than one newspaper in the state, was essential to the validity of the order,\\nThe appellant offered to prove that it was published in but one newspaper, and that there was no record evidence that it had ever been published, but he was not permitted to make this proof. The proof tendered, if made, would have shown that the law had not been complied with in the publication of the order, and as a result from this proof, that the warrant tendered in payment of his fine was not invalidated by the order of the board of supervisors of Sevier county, and was a proper tender in payment of his fine. In the absence of any record evidence showing that the order had been published in more than one newspaper, it is difficult to comprehend how a noncompliance with the law in the publication of said order could have been shown, other than in the manner proposed by appellant. He should have been permitted to introduce the testimony proposed. Its exclusionaby the court was therefore error.\\n3. coukty 'ctneenlti\\u00b0eloscri\\u00bf Proof of.s*\\nIt appears that the board of supervisors in making an order reissuing some of the warrants presented, after reciting the previous order of the board, say, \\\" and due and legal notice of said order having been given as required by law,\\\" which recital appellees contend is sufficient evidence itself that the notice of the order had been published in more newspapers than one in the state. The order of the board of supervisors of Sevier county, calling in the outstanding warrants of the county, was made July 9, 1873, and fixed the 10th of October as the time for presenting the warrants, and directed the sheriff to have the order published \\\" in the official journal of the district, designated by the governor for the publication of legal notices.\\\" The words, \\\" due and legal notice of said order having been given as required by law,\\\" in the order of October 10th, refers to, and must be read with, the order made July 9,1873, which directed the sheriff to publish the notice \\\" in the official journal of the district, designated by the governor for the publication of legal notices,\\\" and meant a publication in only one paper, to wit: \\\"The official journal of the district:\\\"\\n/ 4. Same: Same: Orel e r f o i publication of notice.\\nThere can be no conclusiveness or even presumption ; indulged in favor of the legality of the notice given of the : order of the board of supervisors of Sevier county. It is of a class of orders which seeks to conclude the rights of parties by public notice, or constructive service, and a strict compliance with the requirements of the statutes must be shown. \\\" It is a rule without qualification or exception, that when it is sought to conclude a party by constructive service by publication, a strict compliance with the requirements of the statute is required; nothing can be taken by intendment, and every fact necessary to the exercise of jurisdiction based on this mode of service must affirmatively appear in the mode prescribed by statute.\\\" Cissell v. Pulaski county, and cases there cited; 10 Fed. Rep., 891.\\nThis court, while hot using this language, has, in effect, held this statute for calling in county warrants must be strictly complied with. Fry, collector, v. Reynolds, 33 Ark., 450; Howell v. Hogins, collector, 37 Ark., 110; Allen v. Bankston, 33 Ark., 740.\\nThe declaration of law asked by appellant in his first seven instructions should have been given in some form, and the declaration contained in appellees' second instruction was not applicable to the case, and should have been refused.\\n5. Same: Purposes for which issued.\\nIt is alleged in appellant's complaint that the warrant in controversy was issued by the county court of Sevier county \\\"for the legitimate expenses and liabilities of the county, and not in aid of the rebellion or other unlawful purpose.\\\" Appellees contend that this was a material allegation in the complaint, and being denied, it devolved upon appellant to prove it, and not having done so, judgment must be rendered on the pleadings against appellant. Was this a material allegation? \\\" A material allegation in a pleading is one essential to the claim or defense, and which could not be stricken out from the pleadings without leaving it insufficient.\\\" Mansf. Dig., sec. 5073; Newman on Pleading and Practice, 503. It would have been sufficient to allege, in the language of the warrant itself, that it was issued \\\" for ordinary county expenditures,\\\" and the words, \\\" for the legitimate expenses and liabilities of the county, and not in aid of the rebellion or other unlawful purposes,\\\" were unnecessary and surplusage, and might well be stricken out, leaving a good complaint standing. The warrant was copied in full in the complaint, and there was no more occasion for such an allegation as this than there would be in declaring upon a note to set out the \\u2022original consideration, with the further allegation it was not executed for an immoral or illegal purpose.\\nBut if this had been a material allegation, the proof sustaining it was made when the warrant copied in the complaint was received in evidence. It was not denied that the warrant was regularly issued by the county court of Sevier county. County courts are not authorized to issue warrants except in payment of county indebtedness, and the warrant having been regularly issued was evidence of the purpose for which it was issued. Appellant's eighth instruction should have been given.\\nThe fine imposed upon appellant was a debt to be paid into the county treasury of Sevier county for county purposes, Mansf. Dig., sec. 5860, and the warrant tendered was receivable in payment of this debt. Ib., llJfi.\\nThe judgment of the court below is therefore reversed and remanded, with instructions to grant appellant a new trial, and to proceed in the case in accordance with this opinion.\\n6. Same: Receivable for fines.\"}"
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+"{\"id\": \"1888722\", \"name\": \"Sellmeyer v. Welch\", \"name_abbreviation\": \"Sellmeyer v. Welch\", \"decision_date\": \"1886-05\", \"docket_number\": \"\", \"first_page\": \"485\", \"last_page\": \"488\", \"citations\": \"47 Ark. 485\", \"volume\": \"47\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T22:26:41.781740+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Sellmeyer v. Welch.\", \"head_matter\": \"Sellmeyer v. Welch.\\nMarried Woman : Her earnings, etc.\\nThe earnings of a married woman arising from her services done and performed on her sole account become her separate property, and she may appropriate them if she chooses to the payment -of her husband\\u2019s debts, and where she does so appropriate them she is bound by it and can not reclaim them.\\nAPPEAL from Clay Circuit Court.\\nHon. W. H. Cate, Circuit Judge.\\nJ. E. Riddick for Appellant.\\nThe instruction given by the court is clearly erroneous. A married woman has the right to spend her personal wages as she pleases, and if she chooses to spend them in the payment of board for her husband and son, it is her own concern, as she has a perfect right to do so. The proposition is too plain to require citation of authorities. . The court seems to have failed to note the distinction between the executed and executory contracts of married women. Courts sometimes refuse to enforce executory contracts of married women, but where such contracts have already been performed, and they attempt to ignore them, the question is different. If this be true, the'.court erred both in the instruction'given by him and in refusing those asked by appellant. Const. 0/1874, art. g, sec. 7; Collins, trustee, v. Wassell, 34 Ark., 17; Scott et al. v. Ward, trustee, 35 Ark., 480; Roberts and wife v. Wilcoxson & Rose, 36 Ark., 355; Walker v. Jesstip, admr., 43 Ark., 163; Bisp ham's Equity, sec. 10 r; Bishop on Married Women.\", \"word_count\": \"932\", \"char_count\": \"5185\", \"text\": \"Cockrill C. J.\\nMrs. Welch, a married woman, sued Sellmeyer on an account for $135 for her services as cook for himself and laborers on a railroad. Sellmeyer pleaded payment.\\nUpon the trial, Mrs. Welch testified that she had contracted with Sellmeyer, who was a railroad contractor, to cook for him and his hands, not to exceed fifteen in number, for the sum of $25 per month, and the board of herself and family; the said family consisting of a husband and son; that she cooked for about forty hands for a period of three months; that her services were reasonably worth $50 per month, and that no' part of the same had been paid.\\nSellmeyer, on his part, testified that he employed the plaintiff, who was a married woman, to cook lor work-hands that he boarded; that among the men boarded by him were the husband and son of the plaintiff; that after the performance of said service by the plaintiff, he had a settlement with her and ascertained that there was due'her the sum of 38x35, the amount claimed in the complaint; he found also that her hus band and son were indebted to him in the sum of $70, for board, and that thereupon the plaintiff agreed to pay the board of her husband and son, and did pay for the same out of the amount due her, leaving still a balance of $65, which was paid her in cash. He denied that he was to board her husband and son free in addition to wages paid.\\nIn rebuttal, Mrs. Welsh denied that she had accepted the board of her husband and son in part payment of her wages.\\nThe defendant asked the following instructions :\\n1. \\\"If plaintiff accepted board of her husband and son in payment of her debt from defendant to her, then she is bound by said settlement, and it will be considered a payment.\\n2. \\\"If the jury find that the contract between Mrs. Welch and defendant, Sellmeyer, was to pay her a certain amount per month, and that the defendant settled this amount with plaintiff, partly by cash and partly by furnishing board for her husband and son, which board of her husband and son was furnished at her request, and was accepted by her in satisfaction of part of her debt, then that was binding upon her and she cannot now claim a second payment.\\\"\\nThese instructions were refused, and exceptions saved by Sellmeyer.\\nThe court then, upon its own motion, instructed the jury as follows:\\n\\\" If the jury find from the evidence that the indebtedness from Sellmeyer to plaintiff was for wages for the personal labor of plaintiff, and that she is a married woman, then this indebtedness will be held to be her separate property and she cannot charge or encumber it, or bind it for the payment of the board of her husband and son.\\\"\\nThere was a verdict and judgment against the defendant for $55 ; and after exceptions properly saved he has appealed.\\nThe earnings of a married woman arising from labor and services done and performed on her sole account become her separate property. Mansf. Dig., Sec. \\u2021625. It has been held that she may sell her separate real estate to pay her husband's debts, (Scott v. Ward, 35 Ark., 480; Roberts v. Wilcoxson, 36 Ib., 355), and there is no rule of law or public policy that prevents her from devoting the earnings of her labor to the same purpose if she desires to do so; and, where there is no other objection to the contract, an executed agreement by a married woman to pay a debt due by her husband and son for board is binding upon her. The court erred therefore in giving the instruction in effect that the appellee could not legally part with her earnings in payment of her husbartd's- and son's debts, and also in refusing to give the instructions prayed by the appellant.\\nLet the judgment be reversed and the case remanded for a new trial.\"}"
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diff --git a/arkansas/1889860.json b/arkansas/1889860.json
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+"{\"id\": \"1889860\", \"name\": \"Ricky SCOTT v. STATE of Arkansas\", \"name_abbreviation\": \"Scott v. State\", \"decision_date\": \"1989-03-13\", \"docket_number\": \"CR 89-17\", \"first_page\": \"214\", \"last_page\": \"218\", \"citations\": \"298 Ark. 214\", \"volume\": \"298\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T22:41:05.938025+00:00\", \"provenance\": \"CAP\", \"judges\": \"Glaze, J., concurs.\", \"parties\": \"Ricky SCOTT v. STATE of Arkansas\", \"head_matter\": \"Ricky SCOTT v. STATE of Arkansas\\nCR 89-17\\n766 S.W.2d 428\\nSupreme Court of Arkansas\\nOpinion delivered March 13, 1989\\nRonald C. Wilson, for appellant.\\nSteve Clark, Att\\u2019y Gen., by: O\\u00edan W. Reeves, Asst. Att\\u2019y Gen., for appellee.\", \"word_count\": \"1294\", \"char_count\": \"7689\", \"text\": \"John I. Purtle, Justice.\\nThe appellant was convicted of DWI in the Wynne, Arkansas municipal court. He then appealed the conviction to the circuit court for Cross County. The circuit court jury found him guilty, and the court sentenced him to six months in jail and assessed a one thousand dollar fine. The only issue that we need consider is whether the appellant gave a voluntary and intelligent waiver of his right to trial counsel. The record does not disclose that he waived this right. Consequently the conviction is reversed and the case is remanded to the circuit court.\\nThe record is silent so far as the appellant's waiver of the right to counsel is concerned. In resolving this issue, we will first examine our own precedents and then turn to a consideration of decisions of the U.S. Supreme Court and the federal Circuit Courts of Appeals. We consider this same subject in Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986). There we stated:\\nThe right to counsel... is a personal right and the accused may knowingly and intelligently waive counsel either at a pretrial stage or at the trial. Johnson v. Zerbst, 304 U.S. 458 (1938); Barnes v. State, [258 Ark. 565, 528 S.W.2d 370 (1975)]. [H]owever, every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Franklin & Reid v. State, 251 Ark. 223, 471 S.W.2d 760 (1971).\\nDiscussing the waiver of fundamental constitutional rights in Stephens v. State, 295 Ark. 541, 750 S.W.2d 52 (1988), we quoted from Carnley v. Cochran, 369 U.S. 506 (1962), as follows:\\nPresuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandably rejected the offer. Anything less is not a waiver.\\nWhether there has been an intelligent waiver of the right to counsel depends upon the facts in each case. The burden is upon the state to show that an accused voluntarily and intelligently waived this fundamental right. In Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988), we held that \\\"the state did not meet its burden of showing an intelligent and voluntary waiver by Bowden of his right to counsel.\\\" The issue of a knowing and intelligent waiver of the right to counsel has been discussed by this court many times. In Costillo v. State, 292 Ark. 43, 728 S.W.2d 153 (1987), we stated:\\nMr. Costillo was not represented by counsel at his trial and there is no showing that he knowingly and intelligently waived this right. The state concedes error. We agree. Accordingly, the decision of the Rule 37 trial court must be reversed and the case remanded for a new trial on the merits.\\nThe United States Court of Appeals for the Eighth Circuit has expressly set forth rules to be followed in determining whether the Sixth Amendment right to counsel has been waived. In Tollett v. United States, 444 F.2d 622 (8th Cir. 1971), the court stated:\\nThe law is clear that the sixth amendment guarantee of the right to counsel in a federal criminal trial can only be waived after a careful explanation of the defendant's rights by the court and an intelligent exercise of the choice by the defendant. We must indulge every reasonable presumption against the waiver, and we cannot presume acquiescence in the loss of fundamental rights.\\nA very recent federal decision which arose in Arkansas is that of Meyer v. Sargent, 854 F.2d 1110 (8th Cir. 1988), wherein the court stated that \\\"a specific warning on the record of the dangers and disadvantages of self-representation is not an absolute necessity in every case if the record shows that the defendant had this required knowledge from other sources.\\\" (Emphasis added.) The Meyer opinion continued:\\nOur holding, that a specific on the record warning of the dangers and disadvantages of self-representation is not an absolute necessity in every case for a valid waiver of counsel, should in no way be interpreted as any indication that we disfavor such a policy. Exactly the opposite is true. At best, requiring appellate courts to search through voluminous records for evidence of knowledge of this type is a time-consuming effort and a waste of judicial resources not because it is a frivolous inquiry, but because it could be avoided with a relatively short and simple colloquy on the record. . . . Thus, we are hopeful that all,courts will voluntarily pursue this practice and that government prosecutors will see the benefit in encouraging courts with other practices to change them.\\nMeyer makes it quite clear that in the Eighth Circuit the recommended practice is that the courts make a relatively short and simple record concerning the waiver of the right to counsel. Other Circuit Courts of Appeals decisions have held that a waiver may not be presumed from a silent record. See Piankhy v. Cuyler, 703 F.2d 728 (3rd Cir. 1983); and United States v. Edwards, 716 F.2d 822 (11th Cir. 1983).\\nThe United States Supreme Court discussed waiver of the right to counsel in Patterson v. Illinois, _U.S. _, 108 S.Ct. 2389 (1988). That opinion stated that \\\"[t]he constitutional minimum for determining whether a waiver was 'knowing and intelligent' is that the accused be made sufficiently aware of his right to have counsel present and of the possible consequences of a decision to forego the aid of counsel.\\\" Patterson reemphasized the holding in Miranda that a proper warning, prior to waiver of rights, is necessary before the police may question an accused. The opinion cited Johnson v. Zerbst, supra, and also relied on the holding in Faretta v. California, 422 U.S. 806 (1975), which approved the right of an accused to waive his Sixth Amendment right to counsel and represent himself. Faretta requires that a defendant \\\"be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' \\\"\\nThe record in this appeal is completely silent on waiver of counsel. There is no recorded specific warning of the dangers and disadvantages of self-representation. Moreover, there is no record showing that the defendant possessed such required knowledge from other sources. In view of the fact that the trial court did not make a record on the appellant's waiver of counsel, the case is remanded for a new trial.\\nReversed and remanded.\\nGlaze, J., concurs.\"}"
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diff --git a/arkansas/1889904.json b/arkansas/1889904.json
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--- /dev/null
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+"{\"id\": \"1889904\", \"name\": \"Anthony L. HURVEY v. STATE of Arkansas\", \"name_abbreviation\": \"Hurvey v. State\", \"decision_date\": \"1989-03-20\", \"docket_number\": \"CR 88-173\", \"first_page\": \"289\", \"last_page\": \"292\", \"citations\": \"298 Ark. 289\", \"volume\": \"298\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T22:41:05.938025+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Anthony L. HURVEY v. STATE of Arkansas\", \"head_matter\": \"Anthony L. HURVEY v. STATE of Arkansas\\nCR 88-173\\n766 S.W.2d 926\\nSupreme Court of Arkansas\\nOpinion delivered March 20, 1989\\n[Rehearing denied April 17, 1989]\\nDarrell F. Brown & Associates, P.A, for appellant.\\nSteve Clark, Att\\u2019y Gen., by: Ann Purvis, Asst. Att\\u2019y Gen., for appellee.\", \"word_count\": \"619\", \"char_count\": \"3719\", \"text\": \"Steele Hays, Justice.\\nAnthony Lavell Hurvey has appealed from a judgment of conviction on three counts of delivery of cocaine and one count of possession of cocaine with intent to deliver. Hurvey received ten year sentences for each conviction, the sentences to run consecutively. Two points for reversal are argued, neither of which has merit.\\nI\\nAppellant contends the verdict of guilty on each count of delivery of cocaine is not supported by substantial evidence. Several police officers testified to buying cocaine from an individual known to them only as \\\"Malt Stand,\\\" but later identified as the appellant. The transactions occurred at different times and places and the officers' estimate of the height of the individual ranged from 5'3\\\" to 5'9\\\". As the appellant denied ever selling cocaine, credibility of the witnesses is the heart of the issue.\\nTo determine the sufficiency of the evidence we need to consider only that evidence which supports the verdict. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). Working through an informant, the police met appellant at a K-Mart parking lot in North Little Rock where they purchased a packet of cocaine for $165. Two officers, Baker and Sipes, identified appellant as the person who sold them the cocaine. A few days later Officers Sipes and Schlalchlin met appellant at a Kroger parking lot and again purchased cocaine for $165. A final purchase of cocaine for $165 was made on June 11 behind the sea wall.\\nAppellant maintains that because of inconsistencies in the officers' testimony, the jury's verdict was not based on substantial evidence. Some of the discrepancies were explained, some were not. None was of sufficient scope to defeat the verdict. In Parker v. State, 290 Ark. 94, 717 S.W.2d 197 (1986), we held that minor discrepancies were for the jury to consider in weighing the verity of the testimony. In Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975), we said:\\nWhere the testimony is conflicting, this court does not pass upon the credibility of any witness after the jury has given it full credence, at least where, as here, it cannot be said with assurance that it was inherently improbable, physically impossible or so clearly unbelievable that reasonable minds could not differ thereon.\\nII\\nAppellant argues the jury's verdict of guilty of possession with intent to deliver is not supported by substantial evidence. Officer Sipes testified that while appellant was being admitted to jail following his arrest he was asked to remove a cap he was wearing. A small packet of cocaine fell out and, on inspecting the cap, five other packets of cocaine were found inside the band.\\nSince the amount of cocaine did not equal one gram, the presumption of an intent to deliver pursuant to Ark. Code Ann. \\u00a7 5-64-401 (d) (1987), does not arise. Even so, intent to deliver may be proved by circumstantial evidence. Rowland v. State, 262 Ark. 783, 561 S.W.2d 304 (1978). Intent to commit a crime is not ordinarily susceptible of direct proof and may, therefore, be inferred from the circumstances. Circumstantial evidence is sufficient to constitute substantial evidence. Altes v. State, 286 Ark. 94, 689 S.W.2d 541 (1985). Those circumstances include the packaging of the cocaine in small individual packets and the fact that appellant was shown to have sold cocaine on prior occasions. Lincoln v. State, 285 Ark. 107, 685 S.W.2d 166 (1985).\\nThe judgment is affirmed.\"}"
\ No newline at end of file
diff --git a/arkansas/1892050.json b/arkansas/1892050.json
new file mode 100644
index 0000000000000000000000000000000000000000..054b0ecb228a8b753532a2b6e5ca277bc393dd24
--- /dev/null
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@@ -0,0 +1 @@
+"{\"id\": \"1892050\", \"name\": \"St. L., I. M. & S. R'y v. Leigh\", \"name_abbreviation\": \"St. L., I. M. & S. R'y v. Leigh\", \"decision_date\": \"1885-11\", \"docket_number\": \"\", \"first_page\": \"368\", \"last_page\": \"373\", \"citations\": \"45 Ark. 368\", \"volume\": \"45\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T17:42:26.712241+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"St. L., I. M. & S. R\\u2019y v. Leigh.\", \"head_matter\": \"St. L., I. M. & S. R\\u2019y v. Leigh.\\ni. Railroads:' Passenger without seat refusing to pay and ejected.\\nIt is a part of the contract between a railroad company and its passengers to provide them seats; but a passenger cannot ride on the train and refuse payment, or surrender of his ticket, for want of a seat; and, if ejected for such refusal, he cannot recover for the ejection, but may for breach of -the contract in not furnishing him with a seat, and recover the proximate. damages resulting from such breach, just as though he had disembarked of his own will.\\nAppeal from Pulaski Circuit Court.\\nHon. F. T. Vaughan, Circuit Judge.\\nDodge & Johnson for Appellant.\\nThe defense, in this action, contended for these principles, namely:\\n1st. That, under the statute, to entitle a person to ride on defendant\\u2019s railway train,'he must do one of two things; he must either pay his fare to the proper officer (the conductor), or he must have provided a ticket and deliver up the same when demanded.\\nTo have the ticket is not sufficient, and there is no exception to this rule.\\n2d. If a person procures a ticket, and gets upon a crowded train and fails to find a seat, he cannot continue to ride upon the train standing, and refuse to pay his fare or to give up his ticket until a seat is furnished. Such a rule cannot exist in the nature of things, because on its face it is wrong and unjust.\\nPlaintiff should either have offered to pay the conductor in money the value of carriage from Little Rock to Malvern, a distance of fifty miles, in a standing position, or he should have gotten from the defendant\\u2019s train at the first station, and brought his action against the defendant for any damages he might have suffered by reason of the delay; or he should have paid his fare or given up his ticket, and when he reached his destination have sued the carrier for any damages, inconvenience or suffering, which he might have experienced by reason of being compelled to ride in a standing position the entire or part of the distance.\\nOrdinary fairness would suggest, that if he did so he must make some sort of compensation. There is no law which permits him to ride even a mile, and standing up, \\u201c free gratis,\\u201d without the consent of the carrier. Such a thing as waiving the complete and literal fulfilment of a contract is not an uncommon thing in the business world. \\u25a0 Such a thing as accepting a partial performance, and seeking redress for the deficiency, is no less common.\\nMr. Thompson, in his work upon Carriers of Passengers, p. 67, says: \\u201c It is undoubtedly the duty of the carrier to provide passengers with seats, and they cannot be left standing without a breach of the contract of carriage; therefore, a passenger may decline to surrender his ticket until he has been furnished-with \\u00e1 seat. But he cannot do this and remain upon the train. He should quit the train at the first suitable opportunity, and bring his action upon his contract. He cannot insist on riding in a standing position until a seat beeomes vacant.\\\"\\nSee also, Davis v. K. C., St. J. & C. B. R. Co., 53 Mo., 320, 421; Hancraft v. G. N. R\\u2019y, 8. E. L. Eq., pp. 364-5; L. & I. R. R. Co. v. Simmons, 27 Ind., 16; Gordon v. R. R., 42 N. H, 602-5; Bass v. R. R., 35 Wis., 465; Mansf. Dig., Sec. 5474. \\u25a0\\nC. B. Moore for Appellee.\\nThe questions involved in this case are simply these:\\n(a) Was appellant bound to surrender his ticket, until he had been furnished with a seat?\\n(b) Was the conductor justified, under the circumstances, as detailed in the evidence, in ejecting him from the train?\\nPassengers are entitled to seats; they are included in the accommodations required by statute. Maiisf. Dig., Sec. 5475; 32 Barb., 406; 34 N. Y., 670. And it is the duty of the officials of the train to see that they have them. 36 VPis., 461.\\nIf the railroad had not room, and could not furnish seats, \\u201c it should not have contracted to carry him, and if it was uncertain whether he would have the necessary room, he should have made his . contract conditional, with reference to the uncertainty.\\\" Hutchinson on Car., Sec. 69; 8 Eng. L. & Eq., 362; 28 Ind., 441.\\nIf a passenger chooses to accept of a passage without a seat, the general understanding undoubtedly is that he must pay fare. But if he goes upon the c,ars expecting proper accommodations, and is put off because he declines going in that mode, he may still resort to his action. Redfield on Railways, 4 ed., p. 257.\\nSee Davis v. R. R., 33 Mo., 31J, 320; Hutchinson on Carriers, Sec. 6op, p. 483.\", \"word_count\": \"1600\", \"char_count\": \"8820\", \"text\": \"Cockrill, C. T.\\nThe contract between the passenger and the railway company upon which a ticket without qualification is issued, is by implication to the effect that the company will perform its whole duty as a carrier. Among these duties is that of furnishing the passenger the usual and reasonable accommodations for his comfort to the destination named in his ticket. This includes not only sufficient room, but also a seat in the usual mode of conveyance. Hutchinson on Car., Sec. 609; Thomps. on Car., p. 67; 2 Rorer on R. R., pp. 968-9.\\nThe holder of the ticket agrees that he will conform to the reasonable rules and regulations of the company, and among others, that he will surrender his ticket to the company's agent on demand after embarking on his journey under it. The conditions of this contract are not subject to division, so as to apportion the component parts. It is not within the power of either party to sever the terms of the contract, and demand a performance of the whole, while he, himself, complies with a part only. The carrier cannot claim a surrender of the ticket upon a proffer by it of transportation alone, because the contract calls for transportation in a seat. The pasj senger cannot avail himself of the benefit of the transportation offered him under his contract, and at the same time withhold from the carrier the effective evidence of the payment of his fare, i. e., the ticket. If he desires to repudiate the contract on his part, he must do so in toto. He cannot appropriate its benefits and get rid of its burdens. 1 Whart. Cont., Secs. 233, 552.\\nWhen the carrier proffers transportation without a seat, and the passenger refuses to surrender his ticket, what is then the attitude of the parties under the contract ? It is simply this : The carrier has offered the passenger less than his contract calls for and the passenger has refused it in satisfaction. This he has the unquestioned right to do. If he is not accommodated in a manner which may be deemed a fair compliance with the duty of the carrier, he may decline any compromise and resort to his action against the company for refusing to carry him as their contract or their duty requires. But lie cannot accept the part that is offered him in lieu of the whole \\u2014that is the transportation without the seat\\u2014and at the same time refuse to comply with his own undertakings, in this any more than in another contract. Upon the carrier's neglect or refusal to comply with the terms of the contract of carriage, without a just excuse, the passenger is at liberty to treat the contract as violated by the company, and he may leave the train and sue for a breach of the contract.\\nIt is not necessary to enter upon the determination, in this case, of the question whether he may not remain upon the train on compliance with the reasonable regulations of the company, without waiving his right to recover damages, under the contract, for the inconvenience of riding without a seat. However that may be, if he chooses to accept passage without a seat he must pay the fare for it. 2 Redf. R'y, p. 257 (See VII, Sec. 198;) Benj. on Sales, Sec. 690. If he goes on the train expecting to receive the accommodation he has contracted for, and is put off because he declines to deliver his ticket or pay fare without receiving the full measure of what he is entitled to under his contract, he may maintain his action upon the contract and recover any damages that are the proximate result of its breach, just as though he had disembarked of his own will. But if he is ejected without unnecessary force or violence because of his refusal to pay for his ride, the carrier has done nothing more than it has the legal right to do, and no recovery can be had for the ejection. Davis v. Railroad, 53 Mo., 317; Thompson on Car., p. 67; 2 Rorer Railroad, pp.. 968-9; Redf. R'y, sup.\\nThe case was tried in the circuit court solely as an action of tort, and the recovery was had upon the theory that the appellant had been unlawfully expelled from the train, the court instructing the jury that the company could not lawfully expel him if they \\\" knowingly received him as a passenger, and then failed to furnish him a seat.\\\" This, as we have seen, was error.\\nThe judgment must be reversed and the cause remanded for a new trial.\"}"
\ No newline at end of file
diff --git a/arkansas/1896196.json b/arkansas/1896196.json
new file mode 100644
index 0000000000000000000000000000000000000000..c37bbf4932753879b7115147289ef8413d4402c9
--- /dev/null
+++ b/arkansas/1896196.json
@@ -0,0 +1 @@
+"{\"id\": \"1896196\", \"name\": \"Thomas v. State\", \"name_abbreviation\": \"Thomas v. State\", \"decision_date\": \"1883-11\", \"docket_number\": \"\", \"first_page\": \"408\", \"last_page\": \"410\", \"citations\": \"41 Ark. 408\", \"volume\": \"41\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T17:22:38.649343+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Thomas v. State.\", \"head_matter\": \"Thomas v. State.\\nCriminal Ppactice : On appeal from J. P.: Appellant failing to appear.\\nOn appeal from a justice of the peace to the circuit court in a criminal prosecution, the case stands for trial de novo. The statute does, not authorize an affirmance of the judgment on failure of the applicant to appear; hut the court may, in its discretion, order him to he brought in on warrant, or may dismiss his appeal and order the justice to execute his judgment.\\nERROR to Baxter circuit court.\\nHon. R. H. Powell, Circuit Judge.\\nGeo. W. Williams and J. L. Abernethy for plaintiff in error.\\n1. Every person is entitled to a trial by jury in a criminal case, Art. 2, sec. 10 Const., and judgment by default can not be rendered. In the circuit court the case stood for' trial de novo. Gantt\\u2019s Big., sec. 3,826.\\n2. The motion to dismiss was joint, and if sustained as to-one should have been as to both joint defendants.\\n3. No plea was entered in the justice\\u2019s court, and the circuit court- could not render judgment without a plea in a criminal case. 34 Ark., 375-, 28 Cal., 328; 3 Wis.,. 820 ; 65 111., 301 ; 3 Pin., 367.\\nC. B. Moore, Attorney General for the State.\\nThe bond was not approved by the justice. Acts 1881,. p. 151; Morrison v. State, 40 Ark., and the appeal should have been dismissed.\\nThe case stood for trial de novo, Gantt\\u2019s Biq., sec. 2,109, and the circuit court could not affirm or render judgment by default.\", \"word_count\": \"654\", \"char_count\": \"3729\", \"text\": \"English, C. J.\\nIn September, 1882, David Brundage- and David Thomas were charged with larceny before a justice of the peace of Baxter county.\\nOn the day set for trial (ninth of October, 1882) the defendant moved that James Lingo, the prosecutor, be required to give bond for costs, and the justice so ordered. Whereupon Lingo filed an affidavit that he was unable to-give bond to prosecute the case, and that he had been injured in his personal property. Thereupon the justice ordered a jury and proceeded with the trial; defendants were found guilty, and the verdict and judgment were that each of them be fined $25 and imprisoned in the county jail for twenty-four hours. They prayed an appeal to the circuit-court, which was granted by the justice.\\nAt the next term of the circuit court, to which the appeal was taken, Brundage appeared in person, but Thomas failed to appear otherwise than by attorney. The attorneys for defendants renewed the motion made before the justice, that Lingo, the prosecutor, be required to give bond for cost, and that on his failure to do so, or to make the affidavit required by the statute, the prosecution be abated. The court overruled the motion as to Thomas, behaving failed to appear personally to prosecute his appeal, but sustained the motion as to Brundage, with leave to James Graves, the alleged owner of the stolen property, to .execute bond for costs, and- he declining to give bond, or make affidavit of his inability to do so, the court rendered judgment abating the prosecution as to Brundage and discharging him with costs.\\nThomas was then called, failed to appear, and the judgment of the justice as to him was affirmed with costs, and execution awarded.\\n\\u00b0 Whether the court below erred in abating the prosecution as to Brundage is not before us, the State having taken no appeal.\\nOn appeal from a judgment of a justice of the peace to . , . . the circuit court, m a criminal prosecution-, the case stands trial de novo. The statute does not authorize an affirm-\\u00b0f the judgment on failure of the appellant to appear. Gantt's Dig., sec. 2,109,\\nThe court, in its discretion, may order appellant brought in on a warrant, or dismiss the appeal, and award a mandate to the justice to execute his judgment.\\nReversed and remanded for further proceedings.\"}"
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+"{\"id\": \"1897060\", \"name\": \"Harris v. Harrison\", \"name_abbreviation\": \"Harris v. Harrison\", \"decision_date\": \"1882-11\", \"docket_number\": \"\", \"first_page\": \"50\", \"last_page\": \"55\", \"citations\": \"40 Ark. 50\", \"volume\": \"40\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T23:42:03.645421+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Harris v. Harrison.\", \"head_matter\": \"Harris v. Harrison.\\n1. Statute: Construction of Section 2653 Gantt's Digest. Action.\\nSection 2653, Gantt\\u2019s Digest, applies to bonds taken by officers to indemnify them for making sales under executions, and has no application to indemnifying bonds in replevin, taken under section 5044. This bond is not assignable by the officer, like the other, and the claimant of the property can not, by such assignment, maintain an action upon it. The officer against whom the claimant of the property has recovered damages for seizing it, can sue on the bond for the damages recovered of him. But the claimant\\u2019s remedy is by an action of trespass against the officer and the plaintiff in the replevin suit, or either of them, for seizing the property.\\nAPPEAL from Dorsey Circuit Court.\\nHon. T. E. Sorrells, Circuit Judge.-\\nM. W. Benjamin, for Appellant.\\nThe bond was assignable under Sec. 563, Gantt\\u2019s Dig., and appellant had the right to sue upon it. Ib. Secs. 2653 and 5044.\\nReplevin and attachment are but executions before trial.\\nD. H. Rousseau, for Appellee.\", \"word_count\": \"1653\", \"char_count\": \"9476\", \"text\": \"STATEMENT.\\nEnglish, C. J.\\nIn February, 1874, Major J. Harrison brought replevin before a Justice of the Peace of Dorsey County against Stephen R. Donathan, for two bales of cotton and a mule. An order of delivery was issued, directed to Joe Cray, Jr., as special Constable, who seized the cotton and mule.\\nHilliard Harris claimed the property, and made and delivered to the Constable an affidavit, under Section 5044 of Gantt's Digest, that the cotton and mule were bis property, and that be was entitled to the possession o\\u00ed the same.\\nThereupon Major J. Harrison, the plaintiff in the replevin suit, executed to Cray, as such special Constable, a bond of indemnity, in the penal sum of $500, double the value of the property, with A. M. Waters, John R. Wright and C. V. Childers as sureties.\\nThe condition of the bond was that, \\\"if the above bonden Major J. Harrison, his heirs, executors and Administrators do and shall from time to time and at all times hereafter well and sufficiently save harmless and keep indemnified the said Joe Cray, Jr., as special Constable aforesaid, of, from and against all losses, costs, charges, damages and expenses which he shall or may sustain, bear, pay, suffer, expend or be put unto for or by reason or means of the delivery of the goods and chattels so taken and seized as aforesaid unto the possession of the said Major J. Harrison, the above obligation to be void, otherwise to remain in full force and virtue. Signed and sealed the day and date above written.\\\" (8d Feb., 1874).\\nIt seems that upon the execution of said bond (which is provided for by the above Seotion of the Statute) Cray, the special Constable, delivered tbe cotton and mule to Major J. Harrison, tbe plaintiff in tbe replevin suit.\\nOn tbe 13tb of August, 1874, Hilliard Harris, tbe claimant of tbe property., commenced tbis suit, upon tbe above bond, before' a Justice of tbe Peace of Dorsey County, against Major J. Harrison, tbe principal in tbe bond, and John R. Wright and A. M. \\\"Waters, two of tbe sureties.\\nTbe bond appears by an endorsement upon it, to have been assigned by Gray, tbe special Constable, to Hilliard Harris, tbe plaintiff in tbis suit, tbe assignment bearing date-day of August, 1874.\\nGray was joined as a defendant in tbe suit, but on objection by defendants for misjoinder, tbe plaintiff took a discontinuance as to bim.\\nTbe cause was tried before tbe Justice of tbe Peace on tbe 24th day of September, 1874, anda judgment rendered in favor .of plaintiff against defendants for $411.45, and defendants appealed to tbe Circuit Court of Dorsey County, on tbe same day.\\nIn tbe Circuit Court plaintiff filed a written complaint in which be set out the bond and assignment, and alleged as a breach of tbe condition of tbe bond that in tbe replevin suit be interpleaded in tbe Circuit Court of Dorsey County for tbe cotton and mule, on tbe---day of March, 1874, and recovered a judgment for tbe same, but delivery thereof bad never been rendered bim, by reason whereof an action bad accrued to him on tbe bond, to recover of defendants tbe value of tbe cotton and mule. How tbe replevin suit got into tbe Circuit Court was not averred. Defendants demurred to tbis complaint; and tbe cause was continued from term to term until tbe September term, 1879, when tbe Court took up tbe demurrer, and decided that tbe complaint and demurrer were improperly filed, and ordered them both stricken from the files, to which no exception was taken by the plaintiff.\\nDefendants then demurred orally, the record states, to plaintiff's cause of action, and his right to sue on the indemnifying bond by defendants t'o Gray as special Cony-stable ; and at the March term, 1880, the Court sustained the demurrer, and rendered final judgment, discharging defendants, and plaintiff excepted, and appealed to this Court.\\nOPINION.\\nI. Counsel for appellant submits that he had the right _ _ _ . to sue on the bond oi indemnity in question under Section 2653, Gantt's Digest, title \\\"Dxecution,\\\" Chapter 56.\\nSection 2650 of the same Chapter, provides that: \\\"If an officer who levies, or is required to levy, an upon personal property, doubts whether it is subject to execution, he may give to the plaintiff therein, or his attorney, notice that an indemnifying bond is required. Bond may, thereupon, be given by or for the plaintiff, with one or more sufficient sureties, to be approved by the officer, to the effect that the obligors thereon will indemnify him against the damage he may sustain in consequence of the seizure or sale of the property, and will pay to any claimant thereof the damages he may sustain in consequence of the seizure or sale, and will warrant to any purchaser of the property such estate or interest therein as is soli, and, thereupon, the officer shall proceed to subject the property to the execution, and shall return the indemnifying bond to the Circuit Court of the County from which the execution issued.\\\"\\nSec. 2651 provides that if the bond mentioned in the above section be not given the officer may refuse to levy the execution, or to sell the property if a levy has been made, &<j,\\nSec. 2652 provides that where property for the sale of which the officer has been indemnified, sells for more than enough to satisfy the execution, the surplus shall be paid into Court, &c.\\nSec. 2653 (relied on by counsel for appellant) is as follows : \\u2014 \\\"The claimant or purchaser of any property, for the seizure or sale of which an indemnifying bond has been taken and returned by the officer, shall be barred of any action against the officer levying upon the property, if the surety was good when it was taken. And such claimant or purchaser may maintain an action upon the bond, and recover such damages as he may be entitled to.\\\"\\nIt is manifest from its context, that this section applies to cases where officers take bonds to indemnify them for . making sales under executions; and has no application to a bond of indemnity, like the one in question, taken under Section 5044 of the Digest, title \\\"Replevin.\\\"\\nThat Section provides that, \\\"if another person than the defendant, (in a replevin suit) or his agent, claim the property taken (under the order of delivery) by the Sherff, and delivers to the Sheriff, his affidavit that he is entitled to the possession thereof, the Sheriff shall not be bound to keep it or deliver it to the plaintiff' unless he shall, within two days after the delivery to him, or his agent or attorney, by the Sheriff, of a copy \\u00a9f the affidavit, indemnify the Sheriff against the claim by bond executed by one or more sufficient sureties, in double the value of the property,\\\" &c. See also 8ec. 3811, Gantt's Digest.\\nNo provision is made in the \\\"Replevin\\\" Chapter for the claimant to sue on the bond of indemnity so executed to the officer seizing the property.\\nII. It is submitted by counsel. for appellant that the bond of indemnity in suit was assignable under See. 563, Gantt's Digest, which provides that: \\u2014 \\\"All bonds, bills, notes, agreements and contracts, in writing, for the payment of money or property, or for both money and property, shall be assignable.\\\"\\nIt is questionable whether the bond of indemnity is a bond for the payment of money in the sense of this Statute, but considering that it is, Gray, the special Constable for whose indemnity it was executed, had no right or cause of action upon it when he assigned it to appellant, and the assignment therefore could vest in him no right or cause of action. Hawkins v. Watkins, 5 Ark, 482.\\nThe condition of the bond was to save Gray from damage for seizing the cotton and mule claimed by appellant, under a writ of replevin against Donathan. Until he suffered some loss or damage he had no cause of action on the bond, and none to assign.\\nIf appellant had sued Gray in trespass for taking his property and recovered damages, of him in the action, then he would have had a cause of action on the bond against appellee Harrison and his sureties, but not before. There would have been no occasion then for Gray to assign the bond to appellant; and whether he could assign it to some one else, and thereby vest in him his cause and right of action, is not material in this case.\\nAppellant might have sued appellee Harrison in trespass, as well as Gray, for the taking and conversion of his property, but he had no right of action on the bond of indemnity given by appellant to Gray.\\nAffirmed. '\"}"
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diff --git a/arkansas/1900915.json b/arkansas/1900915.json
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+"{\"id\": \"1900915\", \"name\": \"Paul A. SCHMIDT, Pauline B. Schmidt, and Paul G. Schmidt v. McILROY BANK & TRUST\", \"name_abbreviation\": \"Schmidt v. McIlroy Bank & Trust\", \"decision_date\": \"1991-06-10\", \"docket_number\": \"91-116\", \"first_page\": \"28\", \"last_page\": \"37\", \"citations\": \"306 Ark. 28\", \"volume\": \"306\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T17:50:05.048987+00:00\", \"provenance\": \"CAP\", \"judges\": \"Holt, C.J., and Brown, J., dissent.\", \"parties\": \"Paul A. SCHMIDT, Pauline B. Schmidt, and Paul G. Schmidt v. McILROY BANK & TRUST\", \"head_matter\": \"Paul A. SCHMIDT, Pauline B. Schmidt, and Paul G. Schmidt v. McILROY BANK & TRUST\\n91-116\\n811 S.W.2d 281\\nSupreme Court of Arkansas\\nOpinion delivered June 10, 1991\\n[Rehearing denied July 8, 1991.]\\nSteven D. Tennant, and C. Thomas Pearson, Jr., for appellants.\\nRobert R. Estes, for appellee.\", \"word_count\": \"2948\", \"char_count\": \"17579\", \"text\": \"Robert H. Dudley, Justice.\\nThe appellants, Paul A. Schmidt, Pauline B. Schmidt, and Paul G. Schmidt, were the sole stockholders in the Aero Corporation, a family farming corporation. The corporation held its checking accounts in, and borrowed extensively from the appellee McIlroy Bank and Trust. The notes, security agreements, and mortgage involved in this dispute were executed in the corporation name. After the corporation overdrew one of its checking accounts, the bank declared its loans to the corporation insecure. The bank accelerated payment of the notes, made demand for payment, filed suit in chancery court for foreclosure on the security for the notes, and sought a judgment for the remaining deficiency, if any, against the corporation, as well as the individual appellants as guarantors of the notes. The chancery court suit apparently has not been finally concluded. See McIlroy Bank & Trust v. Acro Corp., 30 Ark. App. 189, 785 S.W.2d 47 (1990).\\nNext, the corporation and the individual appellants filed this \\\"lender's liability\\\" suit against the bank in circuit court. They asked damages for the corporation and damages for themselves as stockholders, but did not ask relief for themselves as guarantors of notes, possibly because the chancery court had not yet determined whether there was a deficiency for the guarantors to pay. The bank filed an answer and a motion for summary judgment with supporting exhibits and affidavits. The corporation and the individual appellants filed an amended complaint and again asked damages for the corporation and themselves as stockholders, but, again, did not ask for damages as a result of the guaranty agreement.\\nThe trial court granted summary judgment against the corporation on the ground that its charter had been revoked for failure to pay franchise fees, but did not grant summary judgment against the individual appellants.\\nThe bank filed a second motion for summary judgment with attached exhibits showing that all notes, security agreements, and mortgages were executed in the name of the corporation and were only guaranteed by the individual appellants. The appellants field a brief opposing the summary judgment and two of their arguments were that they had \\\"stated a cause of action against the bank under the guarantees\\\" and that \\\"the real parties in interest in this cause of action are the individuals as guarantors.\\\" The concluding paragraph of their brief begins as follows: \\\"The plaintiffs [appellants] have clearly shown that the real parties in interest under the facts set forth in the amended complaint are the individuals as guarantors and parties to the notes and extensions. The plaintiffs should be allowed to amend their complaint to permit the real parties to prosecute the action.\\\" However, even though ARCP Rule 15(a) provides in part, \\\"a party may amend his pleadings at any time without leave of court,\\\" the appellants did not file an amended complaint.\\nThe bank filed a brief in which it responded that 12B Fletcher, Cyclopedia of Corporations, \\u00a7 5916, p. 447(Perm. Ed. 1984) provides that \\\"a personal guaranty may be a basis upon which suit can be brought,\\\" but that the individual appellants \\\"have not alleged any individual causes of action on the basis of their guaranty contracts.\\\" Then, at the hearing on the second motion for summary judgment the bank's attorney stated:\\nOne other issue that I would like to address is the fact that plaintiffs now raise a cause of action based upon the guaranty contracts. This is not plead in the Complaint, and not plead in the amended Complaint. I cannot find the word \\\"guaranty\\\" or \\\"guaranty contract with guarantor\\\" or any derivative thereof in the Complaint or amended Complaint. (Tr. 1262). The first time \\\"guaranty\\\" shows up is in the plaintiffs response to the Defendant's second Motion for Summary Judgment. A personal guaranty may be a basis upon which a suit can be brought. There is no question about that. At no time have plaintiffs plead a cause of action on the guaranty contracts.\\nThe individual appellants' attorney responded, \\\"We ask the court to allow the plaintiffs to amend the complaint for the sole purpose to include the individuals as guarantors and state a cause of action that would not leave any question. . . .\\\" Again, the individual appellants did not amend the complaint, either orally or in writing. Immediately thereafter the court, from the bench, announced that it was granting summary judgment against the individual appellants, and further stated:\\nSecond, as far as the guarantees, there's no allegation in either the Complaint or amended Complaint which I earlier allowed to stand, is not plead in either one of these two Complaints. I think that, on the day of the hearing on a motion for a summary judgment, is too late to amend the Complaints to include it, so I'm going to deny your oral motion, Mr. Tennant, to amend your Complaint at this particular point in time.\\nFor their first point of appeal, the individual appellants argue that the trial court erred in refusing to permit them to amend their complaint because (1) \\\"the trial court raised the issue on its own motion\\\" and (2) the trial court did not require a showing of prejudice to the bank or undue delay in the disposition of the cause. Under the facts of this case the arguments are without merit.\\nARCP Rule 15(a) provides in pertinent part:\\n[A] party may amend his pleadings at any time without leave of the court. Where, however, upon motion of an opposing party, the court determines that prejudice would result or the disposition of the cause would be unduly delayed because of the filing of an amendment, the court may strike such amended pleading or grant a continuance of the proceeding.\\nThe intent of the rule is stated in the reporter's notes as follows: \\\"The Committee believed that the amendments to pleadings should be allowed in nearly all instances without special permission from the court. The court is, however, given discretion to strike any amendment which would cause prejudice or unduly prolong the disposition of a case.\\\" We have followed that stated intent. See Webb v. Workers Compensation Comm'n, 286 Ark. 399, 692 S.W.2d 233 (1985); Kay v. Economy Fire & Cas. Co., 284 Ark. 11, 678 S.W.2d 365 (1984).\\nAppellants argue that the trial court erred in denying the oral motion to amend \\\"on its own motion.\\\" The argument is fallacious. The trial court did not rule \\\"on its own motion.\\\" Instead, the trial court responded to appellants' unnecessary motion to amend. It was not a ruling on the court's own motion. If the making of a ruling on that unneeded motion was error, it was invited error. We do not reverse for invited error. Missouri Pac. R.R. Co. v. Gilbert, 206 Ark. 683, 178 S.W.2d 73 (1944).\\nAppellants also argue that the trial court erred because it did not make a finding that the proposed amendment would cause either prejudice or undue delay of the disposition of the case. The argument is without merit for two reasons. First, the matter was not brought to the attention of the trial judge, and we do not reverse for matters raised for the first time on appeal. Bohannan v. Underwood, 300 Ark. 110, 776 S.W.2d 827 (1989). Second, the proposed amendment was never offered, and the trial court had no way of knowing whether prejudice or undue delay would result. Until the trial court knew the factual details of the allegation, it could not know whether additional depositions or interrogatories were necessary. Similarly, we have no way of knowing, and we will not presume error. The rule requires a finding of prejudice or undue delay only when the court strikes a pleading. In that situation the court would naturally have the facts alleged in the amendment before it and would be able to determine whether prejudice or undue delay would occur. The rule does not require a finding of prejudice or undue delay when a party has merely filed an unnecessary motion seeking to amend. The trial court and the other party are entitled to know the factual allegations of the amendment. If our holding were otherwise a party who was responding to a motion for summary judgment and who was worried about the sufficiency of his proof would always file a motion to amend before the hearing solely as a dilatory safety valve. He would always get more time, because the trial judge could not make a ruling on prejudice or delay. The result would be slower and more expensive determination of the action. That is not the purpose of our rule.\\nThe appellants did not argue below, and do not argue in this appeal, that they orally amended their complaint to state a cause of action as guarantors. Under our long standing procedure, we consider only arguments raised by the parties. We do not consider reversing the trial court for the unargued reason that the appellants orally amended their complaint to state a cause of action as guarantors.\\n. [5] The appellants next argue that the granting of summary judgment was in error because an issue of material fact remained to be decided. In brief, their argument is that when the corporation's charter was revoked for failure to pay franchise fees, the officers and shareholders were considered to be operating the business as a partnership and were individually liable for the obligations of the de facto corporation, see Whitaker v. Mitchell Mfg. Co., 219 Ark. 779, 244 S.W.2d 965 (1952); Gazette Publishing Co. v. Brady, 204 Ark. 396, 162 S.W.2d 494 (1942), and since they were subjected to individual liability as partners, they ought to be allowed, in fairness, to bring suit in the same capacity. The argument, while novel, is without merit. The reasoning behind the cases holding officers and stockholders liable is that they ought not be allowed to avoid personal liability because of their nonfeasance. On the other hand, it does not follow that they should be allowed to benefit by their nonfeasance by allowing them to bring suit as partners. The effect of revocation was that the corporation lost its capacity to sue, Sulphur Springs Recreational Park v. City of Camden, 247 Ark. 713, 447 S.W.2d 844 (1969), and this particular type of corporate cause of action ceased to exist. To allow the individual appellants to bring this cause of action would effectively reverse prior law which prohibits suits by a corporation whose charter has been revoked and, in addition, would reward them for their nonfeasance.\\nThe individual appellants had no standing as shareholders to sue for injuries to the corporation. A motion for summary judgment is appropriate when no issue of fact, properly pleaded, remains to be decided. Walker v. Hyde, 303 Ark. 615, 798 S.W.2d 435 (1990). The appellants had not pleaded any individual causes of action under their separate guaranty con tracts with the bank. Therefore, the trial court did not err in granting summary judgment.\\nWe need not address the appellants' third point of appeal which involves an alternative reason for the trial court's granting summary judgment.\\nAffirmed.\\nHolt, C.J., and Brown, J., dissent.\"}"
\ No newline at end of file
diff --git a/arkansas/1907810.json b/arkansas/1907810.json
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+"{\"id\": \"1907810\", \"name\": \"J.D. STEWART v. STATE of Arkansas\", \"name_abbreviation\": \"Stewart v. State\", \"decision_date\": \"1994-02-28\", \"docket_number\": \"CR 93-478\", \"first_page\": \"153\", \"last_page\": \"161\", \"citations\": \"316 Ark. 153\", \"volume\": \"316\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T18:57:22.251915+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J.D. STEWART v. STATE of Arkansas\", \"head_matter\": \"J.D. STEWART v. STATE of Arkansas\\nCR 93-478\\n870 S.W.2d 752\\nSupreme Court of Arkansas\\nOpinion delivered February 28, 1994\\nThomas A. Potter, for appellant.\\nWinston Bryant, Att\\u2019y Gen., by: Clint Miller, Senior Asst. Att\\u2019y Gen., for appellee.\", \"word_count\": \"2598\", \"char_count\": \"15252\", \"text\": \"Robert L. Brown, Justice.\\nThis is a first degree murder case where the appellant, J.D. Stewart, was sentenced to 40 years. He raises three issues on appeal: (1) whether the trial court erred in refusing to give his proffered instruction on duress to the jury; (2) whether the trial, court erred in granting the State's motion in limine to prevent expert testimony concerning Stewart's intent and culpability; and (3) whether the trial court erred in refusing to allow defense counsel to delve into specific instances of the victim's alleged propensity for violence. We hold that the trial court did not err in the three rulings, and we affirm.\\nOn March 17, 1990, at about 4:30 p.m., Stewart entered the Citizen's Cafe in Texarkana. It was Stewart's birthday, and the restaurant was preparing food for a party. The victim, Percy Ragland, was seated on a stool inside the cafe. Ragland and Stewart exchanged heated words, and when Stewart approached Ragland, Ragland pushed him away. Stewart then pulled a large caliber pistol and pointed it at Ragland, who got up and started walking towards the door. Stewart fired his pistol once, striking Ragland in the upper right back and killing him.\\nShortly after the shooting, Stewart turned himself in at the Texarkana Police Station. Detective John Gann took a statement from him where he said that he did not know what happened and was just holding the gun when it went off. He added, \\\"I didn't mean to kill anyone.\\\" He also said that Ragland tried to get him to buy him a beer and would not leave him alone when he refused. He said that he had had trouble with Ragland in the past. Stew-' art admitted that Ragland did not have a weapon and had not threatened him. Stewart was charged with first degree murder.\\nAt the request of his defense counsel, Stewart was then examined by Dr. James R. Blackburn, a clinical psychologist with the Southwest Arkansas Counselling and Mental Health Center in Texarkana. Dr. Blackburn's July 31, 1990 report stated that at the time of the shooting Stewart realized the criminality of his conduct. The report also noted that Stewart was discharged from the Marines after serving two years and six months in Vietnam in 1969 and that he was suffering from emotional stress. On July 24, 1991, Dr. Blackburn issued a second report where he concluded that Stewart, though not psychotic at the time of the shooting, had a mental defect caused by stress and fear that rendered him unable to conform his behavior at that time. Blackburn was of the opinion that under physical threat or aggression, Stewart would overreact and panic as the result of impaired judgment. The doctor also opined that he had a greater than average lack of ability to delay his reaction to threats or aggressiveness.\\nDr. Marianne Seidel, a psychiatrist in Texarkana, also examined Stewart at the request of the trial court to determine his sanity at the time of the slaying. In her report, she stated that while he may have suffered some psychotic symptoms immediately after Vietnam, those symptoms were resolved very early on in his stay at Oakland Naval Hospital in 1969 when he was put on psychotic medications. She was also of the opinion that he \\\"probably was not ever truly schizophrenic,\\\" and that at the time of the shooting, he was not suffering from any psychotic illness. Dr. Seidel specifically stated that in her opinion his behavior was not the result of a momentary psychosis that rendered him unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. In the latter respect, she disagreed with Dr. Blackburn's second report.\\nStewart filed a motion for acquittal due to mental incapacity which was denied. The day of the trial the State filed a motion in limine to prohibit defense counsel from asking expert witnesses whether Stewart had the purposeful intent to commit murder at the time of the killing. The motion was granted.\\nAt trial, Carrie Newton testified that she was a barmaid in the cafe and viewed the altercation between Stewart and Ragland and the murder. She testified that Ragland did not have a pistol and had walked eight to ten feet toward the front door when he was shot. On cross examination, defense counsel asked her whether the victim had a reputation for violence in the community. She answered that she had not known Ragland to be violent. The State objected on grounds of relevance, and the objection was sustained.\\nRobert Nelson, who also worked at the cafe, described the shooting at trial. He stated that he did not see Ragland make any threatening moves toward Stewart. Ragland, he testified, was almost at the door of the cafe when he was shot.\\nStewart took the stand as part of his defense and testified that his aunt had a relationship with Ragland and that he had seen them have disagreements. The State objected to this on grounds of relevance, and a bench conference was conducted. The State argued that what the defense was trying to offer was evidence of prior bad acts of Ragland which was not relevant. Defense counsel argued that evidence that Stewart observed Ragland hit his aunt established that Stewart had reason to fear Ragland. The trial court ruled that if the defense could show that Ragland had placed Stewart in actual fear by past actions, defense counsel could inquire into prior acts of aggression on the part of Ragland.\\nDr. Blackburn then testified as a defense witness that Stewart told him that he was afraid of Ragland because of Ragland's relationship with his aunt. The state objected again, and the trial court sustained the objection. Dr. Blackburn added that Stewart gave him no other reason why he was afraid of Ragland. The doctor posited that Stewart's \\\"mental defect\\\" prevented him from being able to conform his conduct and formulate the requisite intent at the time he shot Ragland. The doctor was of the opinion that Stewart suffered from a \\\"paranoid personality disorder.\\\"\\nDr. Marianne Seidel testified on rebuttal that after examining Stewart and reviewing his medical records, she was of the opinion that he appreciated the nature of his conduct and was able to conform his conduct on the day he shot Ragland. On cross examination, the defense asked Dr. Seidel about her report which contained a reference to Stewart's intent at the time of the shooting. The State objected, and a bench conference ensued. The court instructed the defense that it could not ask Dr. Seidel to read to the jury that part of her report which stated that Stewart's behavior did not \\\"appear to have been premeditated but rather a reaction to a perceived threat to his own safety and well-being.\\\" The trial court did allow the full report to be proffered.\\nAfter the jury retired and per an agreement among counsel and the trial court, defense counsel objected to the trial court's failure to instruct the jury on the affirmative defense of duress. That requested instruction was not proffered and is not part of the record in this appeal. The jury found the appellant guilty of murder in the first degree and sentenced him to 40 years.\\nI. DURESS INSTRUCTION\\nStewart first asserts that the trial court erred in refusing to instruct the jury on the affirmative defense of duress. Specifically, he contends that there was evidence that at the time of the shooting he suffered from an impairment which rendered him unable to control his conduct.\\nWe do not reach this issue because it was not preserved for appeal. The instruction in question was not proffered into the record, and we do not have it before us for our review. This court has stated that it is the appellant's duty to bring up a record sufficient to show that the trial court erred. Enos v. State, 313 Ark. 683, 858 S.W.2d 72 (1993). In order to preserve an objection to an instruction for appeal, the appellant must make a proffer of the instruction to the judge. Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993). That proffered instruction must then be included in the record and abstract to enable the appellate court to consider it. Camp v. State, 288 Ark. 269, 704 S.W.2d 617 (1986). An instruction that is not contained in the record is not preserved and will not be addressed on appeal. Marcum v. State, 299 Ark. 30, 771 S.W.2d 250 (1989). We further note that objections made to the instructions given or based on an instruction not given are untimely after the jury retires. See Young v. Johnson, 311 Ark. 551, 845 S.W.2d 509 (1993).\\n11. EXPERT TESTIMONY ON INTENT\\nStewart's next claim of error is that the trial court erred in granting the State's motion in limine which prevented his attorney from questioning the mental health experts on his intent and culpability.\\nThe standard of review for a trial court's ruling on the admissibility of expert testimony is abuse of discretion. Utley v. State, 308 Ark. 622, 826 S.W.2d 268 (1992). Expert testimony is admissible when it will aid the jury to understand evidence presented or to determine a fact in issue. Ark. R. Evid. 702; Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988). In determining whether expert testimony will aid the trier of fact, the question becomes whether the subject is beyond the ability of a lay person to understand. Utley v. State, supra.\\nStewart was charged with first degree murder for purposely causing the death of Ragland under Ark. Code Ann. \\u00a7 5-10-102(a)(2) (Supp. 1990). Following his examination by Dr. Blackburn and Dr. Seidel, he moved for acquittal on grounds that he lacked capacity, as a result of mental disease or defect, to conform his conduct to the requirements of law. The motion was denied. The prosecutor then moved in limine to prevent either Dr. Blackburn or Dr. Seidel from testifying as to whether Stewart acted with purpose to cause Ragland's death or, stated another way, whether he lacked the specific intent to do so at the time of the murder. The trial court granted the motion which limited this expert testimony.\\nJurisdictions in this country have split over the issue of whether expert testimony on the ability of a defendant to form specific intent to murder is admissible. See Admissibility of Expert Testimony As To Whether Accused Had Specific Intent Necessary For Conviction, 16 ALR 4th 666 (1982). The better view, in our judgment, is that it is not. We recognize that psychiatric testimony concerning whether a defendant has the ability to conform his conduct to the requirements of law at the time of the killing as part of an insanity defense may seem in some cases to approximate testimony on whether the defendant had or did not have the required specific intent to commit murder at a precise time. We draw a distinction between the two categories of testimony, however. A general inability to conform one's conduct to the requirements of the law due to mental defect or illness is the gauge for insanity. It is different from whether the defendant had the specific intent to kill another individual at a particular time. Whether Stewart was insane certainly is a matter for expert opinion. Whether he had the required intent to murder Ragland at that particular time was for the jury to decide.\\nOther jurisdictions have held that expert testimony on specific intent to murder is inadmissible. See, e.g., Haas v. Abrahamson, 910 F.2d 384 (7th Cir. 1990); State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (Neb. 1990); State v. Clements, 789 S.W.2d 101 (Mo. App. 1990); State v. Bouwman, 328 N.W.2d 703 (Minn. 1982). According to the Nebraska Supreme Court, expert testimony on homicidal intent is merely an expression of an expert on how the jury should decide the case. State v. Reynolds, supra. We agree. We further agree that the issue of whether the defendant formulated intent to kill is within the capability of lay jurors to decide. State v. Clements, supra. While expert testimony on whether a defendant lacked the capacity to form intent is probative, we question whether opinion evidence on whether the defendant actually formed the necessary intent at the time of the murder is. State v. Bouwman, supra.\\nNor do we believe that Ark. R. Evid. 704 allowing opinions embracing an ultimate issue controls this matter. The threshold question under Rule 704 is whether the testimony is otherwise admissible. Under Ark. R. Evid. 702 expert testimony must assist the trier of fact to be probative. Under Ark. R. Evid. 401-403, it must be relevant and not misleading or confusing to the jury. Expert opinion on whether Stewart killed Ragland purposely on March 17, 1990, at least had the potential for being misleading and confusing to the jury.\\nThe trial court did not abuse its discretion in refusing to permit the expert opinion concerning the ability of Stewart to form the requisite mental intent at the time he shot Ragland. We affirm its ruling on this point.\\nIII. INQUIRY INTO VIOLENT ACTS\\nStewart's final point is that the trial court erred in refusing to allow an inquiry into specific instances of violent or aggressive conduct on the part of Ragland, after the State had introduced evidence of Ragland's propensity for peacefulness. Ragland claims that the State's witnesses, Carrie Newton and Robert Nelson, testified as to Ragland's character trait for peacefulness and argues that this testimony was premature because the defense had not offered evidence that Ragland was the aggressor. At the very least, Stewart contends, this testimony opened the door for contravening testimony on Ragland's aggressiveness.\\nUnder Ark. R. Evid. 404 (a)(2), evidence of a pertinent trait of a victim's character is admissible. The State, however, is limited in character evidence about the victim under 404(a)(2) to rebutting what the defense has presented. In cases where the character of the victim is an essential element of the defense, Ark. R. Evid. 405(b) permits inquiry into specific instances of the victim's conduct. The trial court concluded that it did not believe that evidence of the victim's character trait for aggressiveness was relevant under these facts. This ruling was a matter for the trial court's discretion and is supported by the facts.\\nHere, the victim was shot in the back by Stewart. Irrespective of any penchant for violence that Ragland may have had, there was testimony that he was walking away from Stewart when he was shot. We have held that where a victim was shot in the back, a trial court did not err in refusing to permit defense counsel to delve into prior acts of aggression by the victim. Heinze v. State, 309 Ark. 162, 827 S.W.2d 658 (1992). The same rationale applies to the case at bar. The fact that the State may have first \\\"opened the door\\\" regarding the victim's character does not overcome the problem of relevancy under these circumstances. Nor do we consider the testimony of Newton and Nelson on Ragland's propensity for peacefulness to be sufficiently preju dicial under these circumstances to warrant a new trial due to its irrelevancy.\\nThere was no error in the trial court's ruling.\\nAffirmed.\"}"
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+"{\"id\": \"243480\", \"name\": \"Gary VAUGHN v. STATE of Arkansas\", \"name_abbreviation\": \"Vaughn v. State\", \"decision_date\": \"1999-06-24\", \"docket_number\": \"CR 98-1259\", \"first_page\": \"220\", \"last_page\": \"227\", \"citations\": \"338 Ark. 220\", \"volume\": \"338\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T20:44:38.052384+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Gary VAUGHN v. STATE of Arkansas\", \"head_matter\": \"Gary VAUGHN v. STATE of Arkansas\\nCR 98-1259\\n992 S.W.2d 785\\nSupreme Court of Arkansas\\nOpinion delivered June 24, 1999\\nErnest Wayne Witt, for appellant.\\nMark Pryor, Att\\u2019y Gen., by: Sandy Moll, Ass\\u2019t Att\\u2019y Gen., for appellee.\", \"word_count\": \"1927\", \"char_count\": \"11466\", \"text\": \"W. H. \\\"Dub\\\"Arnold, Chief Justice.\\nThe appellant, Gary Keith Vaughan, was convicted of two counts of raping his adopted daughter and was sentenced to two terms of life in the Arkansas Department of Correction. The appellant was charged by felony information with two counts of rape. Count one alleged that appellant committed rape by engaging in sexual intercourse with the victim, who was less than fourteen years old at the time of the crime. This crime was alleged to have occurred on numerous occasions from 1983 through 1989.\\nCount two alleged that appellant committed rape by engaging in deviant sexual activity or sexual intercourse with the victim by forcible compulsion during the years 1989 through November 17, 1994. The victim turned eighteen years of age on December 16, 1993. The crime was first reported to law enforcement on November 28, 1994. The information was filed on August 5, 1997. The trial was held on June 26, 1998.\\n. Prior to trial, appellant filed-motions alleging that the statute of limitations was six years for a Class Y felony, and that count one should be dismissed in its entirety for that reason. He also asked, in regard to count two, that testimony about events occurring prior to August 4, 1991 (six years before the charges were filed) be .excluded for the same reason. While the record is devoid of any hearing or ruling on these motions, appellant did, at trial, renew all prior motions at the conclusion of all of the evidence. The motions made at the close of all of the evidence were denied by the trial court.\\nAppellant asserts the following on appeal:\\n1) The trial court erred in refusing to dismiss count one, prior to trial, because the statute of limitations had expired;\\n2) The trial court erred in refusing to exclude from count two those incidents which occurred more than six years before the arrest of the defendant, and which were therefore excluded by the statute of hmitations;\\n3) The trial court erred in allowing the deputy prosecuting attorney to introduce evidence of other alleged incidents, by reading from prior statements, during the examination of witnesses, to the extreme prejudice of appellant.\\nWe hold, for the following reasons, that appellant has failed to preserve these arguments for appeal and hereby affirm the trial court.\\nI. Count one.\\nAppellant filed a pretrial motion to dismiss, arguing that count one should be dismissed because \\\"it has been filed after the requisite period of time, which is 6 years pursuant to A.C.A. [\\u00a7] 5-1-109.\\\" This motion was filed on April 22, 1998. Appellant filed a second motion to dismiss on the day of trial. In his brief, appellant states that 'no ruling on either of these motions appear of record; however, an adverse ruling must be presumed since the appellant was convicted of count one and sentenced to life.\\\"\\nIn order to preserve a point for appellate review, a party must obtain a ruling from the trial court. Alexander v. State, 335 Ark. 131, 983 S.W.2d 110 (1998); Jordan v. State, 323 Ark. 628, 632, 917 S.W.2d 164, 166 (1996). We will not review a matter on which the trial court has not ruled; and, a ruling should not be presumed. The burden of obtaining a ruling is on the movant; matters left unresolved are waived and may not be raised on appeal. Id.; Parmley v. Moose, 317 Ark. 52, 57, 876 S.W.2d 243, 246 (1994). Therefore, appellant has failed to preserve this issue for appeal, since he never obtained rulings on the filed motions.\\nII. Count two.\\nWith regard to count two, appellant filed a motion to suppress, arguing that \\\"any evidence of a rape should be suppressed if said evidence occurred prior to August 4, 1991, six years prior to the filing date of August 4, 1997, of the affidavit for warrant of arrest.\\\" From a review of the record, there appears to be no pretrial ruling on appellant's motion to suppress, either. The only reference to this motion during the trial occurred at the close of all the evidence when appellant renewed his motions, which were denied.\\nEven if the court's general denial could be considered a specific ruling on this motion, appellant's motion was untimely. He did not object and obtain a ruling during the trial when evidence concerning the victim's sexual abuse prior to August 4, 1991, was introduced. This Court has made it clear that in order to preserve the point for appeal, appellant was required to renew his objection when the testimony was elicited at trial. Alexander v. State, supra. By waiting to object until the close of all the evidence, appellant's motion was untimely.\\nIn sum, because appellant failed to object at the first opportunity, appellant's argument concerning exclusion of evidence in regard to count two was not properly preserved for appellate review and is, therefore, procedurally barred.\\nIII. Reading from prior statements.\\nAppellant asserts that the trial court erred in allowing the deputy prosecuting attorney to introduce evidence of other alleged incidents, by reading from prior statements, during the examination of witnesses, to the extreme prejudice of the appellant. Appellant admits that he did not timely object to the prosecutor's line of questioning, but argues that the prejudice was so great that this Court should apply an exception to the contemporaneous-objection rule under Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980), whereby a trial court should intervene on its own motion to correct a serious error. We disagree.\\nA. Cross-Examination of the Appellant\\nAppellant testified in his own defense. During the cross-examination of appellant, the State asked appellant if he committed numerous sexual acts which the victim had previously testified had occurred. In conducting the cross-examination, the deputy prosecutor repeatedly referred to a statement given by the victim to Deputy Sheriff Gladys Dulyea. Again, appellant admits that he did not timely object to the prosecutor's line of questioning. After extensive cross-examination concerning statements the victim made to law enforcement about the specific instances of abuse, the appellant made the following single objection:\\nCounsel for Appellant: Your Honor, I'm going to have to object. I don't mind if he wants to cross the situations that the girl spoke of, but to just rattle on forever without evidence or testimony that [the victim] wrote up her own, I feel is improper.\\nThe trial court sustained the objection, stating that the deputy prosecutor should not read the statement.\\nTo preserve an issue for appeal, a defendant must object at the first opportunity. Smallwood v. State, 326 Ark. 813, 935 S.W.2d 530 (1996); Hill v. State, 285 Ark. 77, 685 S.W.2d 495 (1995). In addition, a defendant must renew his objection each time he is questioned about a matter; and, when a question previously objected to is repeated, and there is no second objection, the matter is waived on appeal. See Stephens v. State, 328 Ark. 81, 941 S.W.2d 411 (1997); Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990). In the case at bar, appellant certainly failed to object at the first opportunity. Furthermore, he only objected to one of many questions concerning the victim's statement. This issue was, therefore, not preserved for appeal.\\nB. Cross-Examination of Keith Vaughan\\nDuring the cross-examination by the State of defense witness Keith Vaughan, one of appellant's sons, the State inquired about statements Keith had made to Mary Beth Whipkey, a Department of Human Services social worker. The witness remembered being interviewed by someone but professed not to know by whom he was interviewed nor to remember the substance of the statement he gave. Furthermore, Keith also stated that he could not recall whether or not he had been interviewed by Deputy Sheriff Gladys Dulyea. He denied making the statements in question.\\nThe appellant made no objection during the cross-examination of Keith Vaughan concerning his statement to Ms. Whipkey. He made the following single objection to a question by the State concerning Keith Vaughan's statements to Gladys Dulyea:\\nCounsel for Appellant: I'm going to have to make an objection. On inspection this is the typed statement that somebody else typed. He didn't sign it. I would have to question the authenticity of it. He's asking several times why did she put this is or did she put that in. He didn't say it. He didn't type it. If he['s] contesting it, I'd have to ask for the veracity and accuracy of this document before he can cross-examine him with it.\\nThis objection was untimely as it came after extensive cross-examination concerning the statement. Again, in order to properly preserve these issues for appeal, the defendant must timely object at the first opportunity. Furthermore, appellant did not object to further questioning regarding the statements. Therefore, this issue, likewise, was not preserved for appeal.\\nAppellant's argument that this Court should apply the third exception enumerated in Wicks v. State, supra, to the case at bar is not convincing. In Wicks, this Court stated that it implied in Wilson v. State, 126 Ark. 354, 190 S.W. 441 (1916), that no objection is necessary if the trial court fails to control a prosecutor's closing argument and allows him to go too far:\\nAppellant can not predicate error upon the failure of the court to make a ruling that he did not at the time ask the court to make, unless the remarks were so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury not to consider the same. See Kansas City So. Ry. Co. v. Murphy, 74 Ark. 256 [85 S.W. 428 (1905)]; Harding v. State, 94 Ark. 65 [126 S.W. 90 (1910)].\\nquoting Wilson v. State. The Court, in Wicks, further stated:\\nIt must be noted that, first, we did not reverse the judgment in Wilson, and second, the quoted statement was taken essentially from the cited Murphy case, where we went on to say explicitly that if the court fails to restrain an improper argument, counsel should make a definite objection and call for a ruling. We have mentioned the Wilson suggestion in two recent cases, but in neither one was the judgment actually reversed because of the trial court's failure to act on its own motion. Ply v. State, 270 Ark. 554, 606 S.W.2d 556 (1980); Wilson and Dancy v. State, 261 Ark. 820, 552 S.W.2d 223 (1977). Thus every statement of the original Wilson suggestion has been obiter dictum, because no judgment has been reversed on account of the trial court's failure to intervene. Such a reversal would necessarily be an extremely rare exception to our basic rule.\\nWicks v. State, 270 at 786-87 (emphasis added).\\nAppellant has failed to demonstrate that the State's cross-examination of either appellant or Keith Vaughan was so flagrant and so highly prejudicial in character as to make it the duty of the court, on its own motion, to have instructed the jury not to consider the same, without the necessity of an objection by appellant. In sum, because of appellant's failure to preserve these points on appeal, the trial court will be affirmed.\\nIV. Rule 4-3 (h) Compliance.\\nThe record has been reviewed for prejudicial error, pursuant to Ark. Sup. Ct. R. 4-3 (h), and no reversible errors were found.\\nAffirmed.\"}"
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+"{\"id\": \"36034\", \"name\": \"Gary William HUNT v. STATE of Arkansas\", \"name_abbreviation\": \"Hunt v. State\", \"decision_date\": \"2003-11-13\", \"docket_number\": \"CR 03-717\", \"first_page\": \"682\", \"last_page\": \"692\", \"citations\": \"354 Ark. 682\", \"volume\": \"354\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T20:39:32.222600+00:00\", \"provenance\": \"CAP\", \"judges\": \"Imber, J., concurs.\", \"parties\": \"Gary William HUNT v. STATE of Arkansas\", \"head_matter\": \"Gary William HUNT v. STATE of Arkansas\\nCR 03-717\\n128 S.W.3d 820\\nSupreme Court of Arkansas\\nOpinion delivered November 13, 2003\\nWilliam R. Simpson, Jr., Public Defender, by: Sandra S. Cordi, Deputy Public Defender; and Erin Vinett, Deputy Public Defender, for appellant.\\nMike Beebe, Att\\u2019y Gen., by: Kent G. Holt, Ass\\u2019t Att\\u2019y Gen., for appellee.\", \"word_count\": \"3520\", \"char_count\": \"20542\", \"text\": \"W.H. \\\"Dub\\\" Arnold, Chief Justice.\\nAppellant Gary Hunt was charged with possession of cocaine, possession of drug paraphernalia, felon in possession of a firearm, and simultaneous possession of drugs and firearm. Hunt was convicted only of possession of cocaine, felon in possession of a firearm, and simultaneous possession of drugs and a firearm. He was sentenced to concurrent prison terms of ten years for the possession of cocaine, five years for felon in possession of a firearm, and five years for simulta neous possession of drugs and a firearm. This case comes to this court by a petition for review. When this court grants a petition to review a decision by the court of appeals, this court reviews the appeal as if it had been originally filed in this court. Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002). Hunt brings two points on appeal: (1) whether the trial court erred in declining to direct a verdict on the charges of felon in possession of a firearm and simultaneous possession of drugs and firearms, because the \\\"firearm\\\" in question did not meet the statutory definition of a firearm due to its degraded condition; and (2) whether as a matter of fundamental error, the trial court erred in declining to direct a verdict on the charge of possession of cocaine and simultaneous possession of drugs and firearms, because the State did not prove that the cocaine in question was a useable amount under Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990). We affirm.\\nAt trial, the State presented four witnesses: Lieutenant Hayward Finks, Detective Troy Ellison, Detective Willie Thomas, and State Crime Lab Analyst Lori Stacks. Officer Hayward Finks testified that he was patrolling with other officers on October 11, 2001, in an area where there had been complaints of narcotics activity. Officer Finks testified that he observed Hunt standing in an alley and holding a rifle. The officers drew their weapons and ordered appellant to drop the gun, and he complied. Hunt was then arrested and searched. Officer Finks testified that when he saw the gun it was muddy, rusty, and had mud in the barrel.\\nDetective Troy Ellison testified substantially the same as Lieutenant Finks regarding the initial contact with Hunt. Ellison stated that the gun was muddy and rusty with mud in the barrel; and, Ellison testified that he did not know whether the gun was able to be shot. However, Detective Ellison testified that he searched Hunt and found a matchbox with a white rock-like substance in it.\\nThe State's third witness, Detective Willie Thomas, testified much to the same regarding Hunt's initial contact with the police officers. Thomas testified that the gun was muddy, rusty, and that if he was going to fire a gun, he would not choose that particular gun. The State's final witness was Arkansas State Crime Lab analyst Lori Stacks. Stacks, a chemist, examined the rock-like substance seized from Hunt. Stacks testified that the substance testified positive for cocaine; however, Stacks did not testify to the weight of the substance.\\nAfter the State rested its case, the defense moved for a directed verdict as to all four charges. The trial court granted the defense's motion as to the paraphernalia charge because the State had lost the item in question and descriptions of the item varied. The defense then presented two witnesses, Marchelio Robinson and Samuel Johnson. Both men indicated that they were longtime friends of Hunt, but they never knew him to own a firearm. After these defense witnesses, the defense counsel renewed its motion for directed verdict; however, the renewed motions were denied.\\nAt the close of all the evidence, the trial court found Hunt guilty of the remaining three offenses: simultaneous possession of drugs and firearms, felon in possession of a firearm, and possession of cocaine. At a separate sentencing proceeding, the trial, court sentenced Hunt to ten years for the simultaneous possession offense, and ten years for the felon possession of cocaine offense, and five years for felon in possession of a firearm offense. The trial court ran the sentences concurrently. Appellant filed a timely notice of appeal.\\nFor his first point on appeal, Hunt argues that the trial court erred in not granting his directed-verdict motion on the charges of felon in possession of a firearm and simultaneous possession of drugs and firearm. Hunt contends that the firearm which he was in possession of did not meet the statutory definition of a firearm due to its degraded condition. We disagree.\\nAt the close of the State's case, Hunt moved for a directed verdict with regard to two specific issues. First, appellant asserted that because the State had not produced the actual physical item seized from Hunt that subsequently tested positive for cocaine at the crime lab, the State had not adduced substantial evidence with regard to the paraphernalia charge. The trial court granted this motion. However, appellant also moved for a directed verdict with regard to the charges of felon in possession of a firearm and simultaneous possession of drugs and a firearm. The specific issue raised by Hunt was that the rifle which appellant was accused of possessing did not meet the statutory definition of a firearm. Appellant renewed that motion at the close of all the evidence.\\nThe standard of review in cases challenging the sufficiency of the evidence is well established. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002); Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001). This court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, .without resorting to speculation or conjecture. Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001).\\nThe basic rule of statutory construction, to which all other interpretive guides must yield, is to give effect to the intent of the legislature. Thomas v. State, 315 Ark. 79. 864 S.W.2d 835 (1993); Mountain Home Sch. Dist. v. T.M.J. Builders, Inc., 313 Ark. 661, 858 S.W.2d 74 (1993). In interpreting a penal statute, \\\"[i]t is well settled that penal statutes are strictly construed with all doubts resolved in favor of the defendant, and nothing is taken as intended which is not clearly expressed.\\\" Hales v. State, 299 Ark. 93, 94, 771 S.W.2d 285, 286 (1989). However, even a penal statute must not be construed so strictly as to defeat the obvious intent of the legislature. Russell v. State, 295 Ark. 619, 751 S.W.2d 334 (1988). In this regard, we will not construe penal statutes so strictly as to reach absurd consequences which are clearly contrary to legislative intent. Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993); Williams v. State, 292 Ark. 616, 732 S.W.2d 135 (1987); Ashing v. State, 288 Ark. 75, 702 S.W.2d 20 (1986).\\nArkansas Code Annotated \\u00a7 5-1-102(6) states:\\n(6) \\\"Firearm\\\" means any device designed, made, or adapted to expel a projectile by the action of an explosive or any device readily convertible to that use, including such a device that is not loaded or lacks a clip or other component to render it immediately operable, and components that can readily be assembled into such a device.\\nArk. Code Ann. \\u00a7 5-1-102(6) (Supp. 2001). Hunt argues that the testimony from the three police officers indicate that this was not a firearm. Hunt concedes that the General Assembly did not intend to require that a firearm be immediately operable in all instances; however, Hunt states as a purely practical matter, there must be some temporal limit on what may be considered a firearm. Hunt maintains that a firearm is a piece of metal, or combination of metal and work, depending on the gun. Both wood and metal degrade over time; thus, at some point a gun will reach a point at which it loses its essential characteristics of a gun. Hunt argues that the State's own witnesses uniformly testified that the gun was rusted and was covered with mud and dirt. Two of the three officers stated that they could not tell whether the gun would shoot at all. One of the officers said that he would not fire the gun. Hunt argues that this is not the sort of item that the General Assembly ever intended the State to bring under a firearm.\\nHowever, a plain reading of the statute reveals that the definition's dependent clause makes clear that it is immaterial whether the firearm-device is loaded or lacks a component, such as a clip or magazine, that could make it capable of expelling a projectile. Thus, once a device is made for the purpose of expelling a projectile by the action of an explosive, it meets the statutory definition of a firearm. Hunt does not argue that the rifle he possessed was not designed to expel a projectile by the action of an explosion; but argued that the rifle was not \\\"immediately operable.\\\" Had the legislature intended Hunt's temporal meaning of a firearm, it could have simply defined a firearm as a device only capable of expelling a projectile. Since the firearm in question was designed to be used in a manner consistent with Ark. Code Ann. \\u00a7 5-1-102(6), the rifle is a firearm within the ordinary meaning of the word used by the legislature. S.T. and C.B. v. State, 318 Ark. 400, 885 S.W.2d 885 (1994).\\nFor Hunt's second point on appeal, he challenges the sufficiency of the evidence with regard to the quantity of cocaine that Hunt possessed on the night of October 11, 2002. Hunt concedes that this argument was not raised below, but contends that the argument should be considered under the doctrine of plain or fundamental error. Hunt cites United States v. Olano, 507 U.S. 725 (1993), for the proposition that in federal court, a balance is struck between requiring contemporaneous objections versus protecting an accused by affording relief of his substantial rights have been injured. Hunt also cites to Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990), where Harbinson was found to be in possession of a bottle containing cocaine dust, but the substance was too small to weigh with the state crime lab equipment, which could weigh nothing smaller than one milligram.\\nNotwithstanding, this argument was not raised below; arguments may not be raised for the first time on appeal. Hinston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000). Any possible prejudice would have been properly cured by an admonition to the jury, which was also not requested on this issue. See Banks v. State, 315 Ark. 666, 869 S.W.2d 700 (1994); Stanley v. State, 317 Ark. 32, 875 S.W.2d 493 (1994). We, therefore, affirm the trial court's ruling.\\nAffirmed.\\nImber, J., concurs.\\nBrown, J., not participating.\"}"
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diff --git a/arkansas/369271.json b/arkansas/369271.json
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+"{\"id\": \"369271\", \"name\": \"Damion Jemon BROWN v. STATE of Arkansas\", \"name_abbreviation\": \"Brown v. State\", \"decision_date\": \"1996-09-16\", \"docket_number\": \"CR 96-73\", \"first_page\": \"504\", \"last_page\": \"510\", \"citations\": \"325 Ark. 504\", \"volume\": \"325\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T20:13:07.627497+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Damion Jemon BROWN v. STATE of Arkansas\", \"head_matter\": \"Damion Jemon BROWN v. STATE of Arkansas\\nCR 96-73\\n929 S.W.2d 146\\nSupreme Court of Arkansas\\nOpinion delivered September 16, 1996\\nChris Tarver, for appellant.\\nWinston Bryant, Att\\u2019y Gen., by: Clint Miller, Deputy Att\\u2019y Gen. and Senior App. Advocate, for appellee.\", \"word_count\": \"1766\", \"char_count\": \"10761\", \"text\": \"Andree Layton Roaf, Justice.\\nAppellant Damion Jemon Brown was charged with capital felony murder for the killing of Jess Brown during an attempted robbery. He was convicted of the lesser included offense of first-degree felony murder and sentenced to life imprisonment. For his sole point on appeal, he contends that the trial court erred in refusing to instruct the jury on the lesser included offense of second-degree murder. We find no merit to the argument and affirm the conviction.\\nOn February 22, 1994, Jess Brown was shot while he was working at Rocky's One Stop convenience store in Litde Rock. Subsequendy, two men were seen running from the convenience store. Jess Brown died as a result of a single gunshot wound to the chest and abdomen.\\nAt trial, the State introduced a taped statement made by Damion Brown in which he stated that he and Greg Hogue were standing outside of Rocky's One Stop. The plan was for Brown to stand in the doorway to watch for people while Hogue robbed the store. According to the statement, Damion Brown entered the store first, the store owner pulled a gun, and Damion Brown dropped to the floor. Damion Brown stated that Greg Hogue fired the shot that killed Jess Brown.\\nMarcus Hall, an employee of Rocky's One Stop, testified that he went to the store on the evening of the shooting to purchase batteries. Hall testified that when he arrived at the store, he observed two men behaving suspiciously at a washeteria next door and warned Jess Brown about them. He stated that Jess Brown had several guns positioned around the convenience store, including one hidden beneath some paper on the counter beside the cash register. Hall further testified that Jess Brown was standing behind the cash register, and Hall was bent over behind Brown searching for batteries when he heard a gunshot and saw that Brown had been shot. The defense presented the testimony of Mark Poindexter, a co-defendant in the case who had testified in a prior proceeding, for the purpose of showing that the robbery was not Damion Brown's idea. Poindexter's entire testimony was read to the jury. Poindexter testified that he, Damion Brown, Greg Hogue, and two others drove in Poindexter's car to a park down the street from Rocky's One Stop in order to commit a robbery. He stated that Damion Brown and Greg Hogue left the car, covered their faces with ski masks or bandannas and, armed with guns, walked to the store. He further testified that he heard a gunshot, and Hogue and Brown ran back to the car.\\nAfter the conclusion of all the evidence, the jury was instructed on capital felony murder, the lesser included offense of first-degree felony murder, aggravated robbery, accomplice liability, and the affirmative defense to capital felony murder that Brown did not commit the homicidal act or in any way solicit, command, induce, procure, counsel, or aid in its commission. The jury found Brown guilty of first-degree felony murder and aggravated robbery. The aggravated robbery verdict was merged in the first-degree murder conviction, and Brown was sentenced by the jury to life imprisonment.\\nOn appeal, Brown asserts that the trial court erred in refusing to instruct the jury on the lesser included offense of second-degree murder. Brown was charged by information with capital murder and aggravated robbery. The capital murder count alleged that Brown, acting alone or with one or more persons, committed or attempted to commit aggravated robbery and, in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice caused the death of Jess Brown under circumstances manifesting extreme indifference to the value of human life. Prior to submission of the case to the jury, Brown requested that the jury be instructed on the offense of second-degree murder on the basis that it was a lesser included offense of capital felony murder. Brown proffered an instruction on second-degree murder, and the trial court refused to give the instruction. On appeal, Brown contends that a rational basis existed for the jury to conclude that he, through the transferred intent of Hogue, knowingly caused the death of another person under circumstances manifesting extreme indifference to the value of human life.\\nThis court has held that where a rational basis for a verdict of acquittal on the greater offense and conviction on the lesser offense exists, the trial court should give the lesser included offense instruction, and it is reversible error not to do so. State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995). Error occurs when the trial court refuses to give the lesser included instruction where there is the slightest evidence to warrant it. Id. Consequently, we must determine whether second-degree murder is a lesser included offense of capital felony murder and, if so, whether there was sufficient evidence to warrant the instruction on second-degree murder.\\nBefore an offense will be considered a lesser included offense of a greater one, three basic requirements must be met: (1) the lesser offense must be established by proof of the same or less than all the elements of the greater offense; (2) the lesser offense must be of the same generic class as the greater offense; and (3) the differences between the two offenses must be based upon the degree of risk or injury to person or property or upon grades of intent or degrees of culpability. Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989). Arkansas Code Annotated \\u00a7 5-10-101 (Supp. 1995), Capital murder, provides in part:\\n(a) A person commits capital murder if:\\n(1) Acting alone or with one (1) or more other persons, he commits or attempts to commit rape, kidnapping, vehicular piracy, robbery, burglary, a felony violation of the Uniform Controlled Substances Act, \\u00a7 5-64-101 - 5-64-608, involving an actual delivery of a controlled substance, or escape in the first degree, and in the course of and in furtherance of the felony, or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life .\\n(Emphasis added.) Arkansas Code Annotated \\u00a7 5-10-103 (Repl. 1993), Murder in the second degree, provides in part:\\n(a) A person commits murder in the second degree if:\\n(1) He knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life . . .\\n(Emphasis added.) Second-degree murder, as defined, requires proof that a person \\\"knowingly\\\" cause the death of another person. In contrast, it is setded law that felony murder simply requires that a death be caused in the course of committing a felony. See Johnson v. State, 252 Ark. 1113, 482 S.W.2d 600 (1973) (first-degree murder conviction upheld where homeowner's daughter accidendy shot by father during burglary attempt by appellant). Accordingly, because second-degree murder requires proof of an element not required for proof of felony murder, second-degree murder is not a lesser included offense of felony murder. See Tackett v. State, supra.\\nIn addition, we have stated:\\nWhere the indictment for a greater offense does not contain allegations of all the ingredients of the lesser offense,-a conviction of the lesser cannot be sustained, even though the evidence may supply the missing element.\\n(Emphasis added.) Henderson v. State, 286 Ark. 4, 688 S.W.2d 734 (1985) (quoting Caton & Headley v. State, 252 Ark. 420, 479 S.W.2d 537 (1972)). In the instant case, the information simply charged that Damion Brown or an accomplice caused the death of Jess Brown during the course of a felony. The information did not allege that Brown possessed any culpable mental state in causing the death; an allegation as to a culpable mental state is a necessary element to the charge of second-degree murder. Therefore, a conviction of the lesser offense could not be sustained, even if, as Brown contends, there was evidence of a knowing mental state. See Henderson, supra.\\nBrown also asserts on appeal that two previous decisions of this court require reversal of his conviction. In Davis v. State, 317 Ark. 592, 879 S.W.2d 439 (1994), this court held that a single stab wound to the chest penetrating the heart constituted sufficient circumstantial evidence to show that the appellant knowingly caused the death of another. Davis was charged with first-degree murder, and, at his trial, the jury was also instructed on the lesser included offenses of second-degree murder and manslaughter. However, Davis was convicted for the murder of a man with whom he had been living, and he had been seen arguing with the victim within an hour of the estimated time of death. It is clear that Davis did not involve a charge of felony murder.\\nBrown's reliance upon the case of Hill v. State, 303 Ark. 462, 798 S.W.2d 65 (1990) is also misplaced. Hill, like Brown, was charged with capital felony murder committed in the course of a robbery, and, like Brown, he was convicted of first-degree murder. The trial court refused Hill's proffered jury instruction on the lesser included offense of first-degree felony murder and instead erroneously instructed the jury on first-degree murder after premeditation and deliberation. On appeal, Hill challenged the trial court's failure to give the proper instruction on first-degree murder. We set aside Hill's conviction of first-degree murder and reduced his conviction to that of second-degree murder, for which an instruction had been given without objection. Although in Hill we said, without discussion, that \\\"within the capital murder charge is the lesser included offense of second-degree murder,\\\" it is clear that second-degree murder is a lesser included offense of capital murder only if the accused's mental state is an element of the offense. To the extent that the discussion in Hill regarding second-degree murder as a lesser included offense of capital murder may be in conflict with the clearly articulated principles regarding lesser included offenses set forth in Tacket v. State, supra, and Henderson v. State, supra, we take this opportunity to clarify Hill. Accordingly, we hold that second-degree murder is not a lesser included offense of capital felony murder as set forth in Ark. Code Ann. \\u00a7 5-10-101 (a)(1).\\nArk. Sup. Ct. R. 4-3 (h)\\nThe record has been examined in accordance with Arkansas Supreme Court Rule 4-3 (h), and there were no ruhngs adverse to Brown which constituted prejudicial error.\\nAffirmed.\"}"
\ No newline at end of file
diff --git a/arkansas/369315.json b/arkansas/369315.json
new file mode 100644
index 0000000000000000000000000000000000000000..7f1e86039cdd0440428ece54cd4488f132786116
--- /dev/null
+++ b/arkansas/369315.json
@@ -0,0 +1 @@
+"{\"id\": \"369315\", \"name\": \"James S. SANSON v. STATE of Arkansas\", \"name_abbreviation\": \"Sanson v. State\", \"decision_date\": \"1996-06-10\", \"docket_number\": \"CR 96-620\", \"first_page\": \"60\", \"last_page\": \"61\", \"citations\": \"325 Ark. 60\", \"volume\": \"325\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T20:13:07.627497+00:00\", \"provenance\": \"CAP\", \"judges\": \"DUDLEY, J., not participating.\", \"parties\": \"James S. SANSON v. STATE of Arkansas\", \"head_matter\": \"James S. SANSON v. STATE of Arkansas\\nCR 96-620\\n922 S.W.2d 723\\nSupreme Court of Arkansas\\nOpinion delivered June 10, 1996\\nPaul A. Schmidt, for appellant.\\nNo response.\", \"word_count\": \"139\", \"char_count\": \"789\", \"text\": \"PER CURIAM.\\nPetitioner, James S. Sanson, by his attorney, Paul A. Schmidt, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.\\nWe find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 295 Ark. 964 (1979) (per curiam).\\nA copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.\\nDUDLEY, J., not participating.\"}"
\ No newline at end of file
diff --git a/arkansas/6034906.json b/arkansas/6034906.json
new file mode 100644
index 0000000000000000000000000000000000000000..ba5a0bfa95eb4bbd23cd34e5235098997365f0dd
--- /dev/null
+++ b/arkansas/6034906.json
@@ -0,0 +1 @@
+"{\"id\": \"6034906\", \"name\": \"Andrew J. MONFEE et al v. THE URBAN RENEWAL AGENCY OF THE CITY OF NORTH LITTLE ROCK, ARKANSAS\", \"name_abbreviation\": \"Monfee v. Urban Renewal Agency\", \"decision_date\": \"1979-12-03\", \"docket_number\": \"79-58\", \"first_page\": \"344-B\", \"last_page\": \"344-B\", \"citations\": \"267 Ark. 344-B\", \"volume\": \"267\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T02:29:37.063643+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Andrew J. MONFEE et al v. THE URBAN RENEWAL AGENCY OF THE CITY OF NORTH LITTLE ROCK, ARKANSAS\", \"head_matter\": \"Andrew J. MONFEE et al v. THE URBAN RENEWAL AGENCY OF THE CITY OF NORTH LITTLE ROCK, ARKANSAS\\n79-58\\n590 S.W. 2d 32\\nDecember 3, 1979\\nHowell, Price, Howell, P.A., for appellants.\\nWallace, Hilburn, Clayton, May & Calhoun, Ltd., for appellee.\", \"word_count\": \"122\", \"char_count\": \"729\", \"text\": \"PER CURIAM\\nUpon motion of appellants, this case is remanded to the Chancery Court of Pulaski County and that court is reinvested with jurisdiction for the sole purpose of determining the effect of Resolution No. 1774, adopted by the City Council of the City of North Little Rock, Arkansas, upon its decree from which this appeal is taken.\\nThe Chief Justice, George Rose Smith and Byrd, JJ., did not participate in the consideration of this motion. Special Justice William S. Arnold agrees.\"}"
\ No newline at end of file
diff --git a/arkansas/6136205.json b/arkansas/6136205.json
new file mode 100644
index 0000000000000000000000000000000000000000..88ecfb326536ade830b468796cfaa2c6169f95fe
--- /dev/null
+++ b/arkansas/6136205.json
@@ -0,0 +1 @@
+"{\"id\": \"6136205\", \"name\": \"Keith A. WINGFIELD v. CONTECH CONSTRUCTION PRODUCTS, INC.\", \"name_abbreviation\": \"Wingfield v. Contech Construction Products, Inc.\", \"decision_date\": \"2003-08-27\", \"docket_number\": \"CA 03-154\", \"first_page\": \"16\", \"last_page\": \"26\", \"citations\": \"83 Ark. App. 16\", \"volume\": \"83\", \"reporter\": \"Arkansas Appellate Reports\", \"court\": \"Arkansas Court of Appeals\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T20:53:45.928251+00:00\", \"provenance\": \"CAP\", \"judges\": \"Vaught and Baker, JJ., agree.\", \"parties\": \"Keith A. WINGFIELD v. CONTECH CONSTRUCTION PRODUCTS, INC.\", \"head_matter\": \"Keith A. WINGFIELD v. CONTECH CONSTRUCTION PRODUCTS, INC.\\nCA 03-154\\n115 S.W.3d 336\\nCourt of Appeals of Arkansas Division II\\nOpinion delivered August 27, 2003\\nAppellant, pro se.\\nQuattlebaum, Grooms, Tull & Burrow, PLLC, by: E.B. Chiles, IV, for appellee.\", \"word_count\": \"3096\", \"char_count\": \"18996\", \"text\": \"Layton Roaf, Judge.\\nAppellant Keith Wingfield appeals pro se from the grant of summary judgment in favor of appellee Contech Construction Products, Inc. (\\\"Contech\\\"), his former employer. After terminating Wingfield's employment and exercising its option to repurchase company stock owned by him, Contech filed suit against Wingfield to recover interest on a promissory note used to purchase the stock. Wingfield defended the suit by alleging that he was wrongfully terminated and that Contech should be estopped from repurchasing the stock and collecting interest on the note. Contech filed a motion for summary judgment, which was granted by the trial court. On appeal, Wingfield argues that the trial court erred: (1) in granting Contech summary judgment without submitting the case to a jury for a determination of whether he was wrongfully terminated as a result of his whistleblowing; (2) in granting summary judgment to Contech because it should be estopped from any action against him based on wrongful termination; (3) by granting Contech summary judgment because questions of fact remain regarding Contech's motive for his termination; (4) in granting summary judgment to Contech without a consideration of the public policy issues of denying an employee-shareholder the gain in value of his investment in Contech. We affirm.\\nContech manufactures and sells, among other things, corrugated metal pipe used in drainage culverts for highway construction projects. Wingfield was a shareholder and employee of Caldwell Culvert Company (\\\"Caldwell\\\"), a competitor of Con-tech. In 1995, Contech bought all of the outstanding shares of Caldwell, and Wingfield became employed by Contech. Pursuant to his employment with Contech, Wingfield purchased 5,000 shares of Contech Holdings Corporation (\\\"CHC\\\") stock at a price of $54.68, and he also received an option to purchase 166 additional shares. On February 19, 1997, Wingfield executed a promissory note with Contech for the purchase of the stock in the amount of $273,400, with an interest rate of 8%. The promissory note provided that the note would mature if Wingfield's employment with Contech was terminated \\\"for any reason\\\" and CHC exercised its \\\"call option\\\" to purchase the stock pursuant to the Stockholders Agreement, or if Wingfield attempted to sell or transfer the stock. Upon the occurrence of either of these events, the entire amount of the note, along with all accrued and unpaid interest, became due.\\nThe Stockholders Agreement, also signed by Wingfield on February 19, 1997, provided that CHC would have a call option with respect to Wingfield's shares of its stock and his option to purchase additional stock in the event Wingfield's employment with Contech was terminated. The agreement stated that if Wing-field was terminated for cause, CHC would have the right to purchase the stock at the lower of the book value price or the original cost. In other situations, such as when Wingfield's termination was without cause and without the approval of the majority of the board of directors, or when the termination was due to his death or disability, the agreement stated that the stock would be purchased at book value.\\nIn April 1999, Wingfield pled guilty to conspiring to defraud the United States and the State of Louisiana in connection with Caldwell's substitution of non-approved steel pipe for use on state and federally funded highway projects in Louisiana. After learning of these facts in June 1999, Contech placed Wingfield on administrative leave on July 23, 1999. On December 10, 1999, Contech notified Wingfield that his employment was being terminated for two reasons: his plea of guilty to a felony, and his commission of an act of fraud or dishonesty against Contech. Pursuant to the Stockholders Agreement, CHC then notified Wingfield in January 2000 that it was exercising its call option with respect to Wing-field's stock. Wingfield was informed that CHC would pay to Contech on his behalf the aggregate purchase price of $273,400 to satisfy in full the principal amount due under the promissory note. However, CHC also notified Wingfield that $71,005.26 was due and payable to Contech by February 17, 2000, for the interest on the note at the rate of 8%.\\nWhen Wingfield refused to pay the interest due under the promissory note, Contech filed suit against him in August 2001. In his Amended Answer, Wingfield alleged that Contech did not terminate his employment for the reasons asserted in its complaint. Instead, Wingfield averred that Contech was aware of the product substitution by Caldwell before he was hired, and that Contech's true motive for terminating him was retaliation for his conduct as a successful whistle blower in a federal action filed by him against Contech under the Federal False Claims Act for its own acts of fraudulent product substitution. Wingfield further alleged that Contech was thus estopped from relying on its stated reasons as a basis for his termination under the employment agreement and that he owed no debt to Contech. Wingfield admitted, however, that if his stock was repurchased by CHC, Contech would be entitled to interest under the promissory note, but he alleged that he was entitled to the difference between the book value of the stock on the cfate of purchase and the fair market value of the stock upon such repurchase. Wingfield further stated that the provisions of the Stockholders Agreement relied upon by Contech were unenforceable and void as against public policy. Because he alleged that the call option provisions were unenforceable, Wingfield stated that Contech was not entitled to interest under the terms of the promissory note. Alternatively, he alleged that he was entitled to a setoff against any interest due, based on the book value of the stock at the time of the transfer.\\nWingfield also filed a counterclaim, in which he alleged that Contech had breached the Incorporation Agreement between the parties by not providing him with its annual statements and monthly and quarterly reports. Wingfield sought an accounting from Contech, including all of the financial information that he had not been provided. Upon the motion of Contech, the trial court dismissed Wingfield's amended counterclaim without prejudice, based on its failure to state facts upon which relief could be granted.\\nIn August 2002, Contech filed a motion for summary judgment, stating that Wingfield's allegation that he was terminated without just cause could not, as a matter of law, defeat his obligations under the promissory note. Contech alleged that there were no genuine issues as to any material fact as to whether Wingfield owed interest on the note and that it was thus entitled to summary judgment. As support for its motion, Contech attached the promissory note, the Stockholders Agreement, the guilty plea agreement, and Wingfield's responses to Interrogatories and Requests for Production of Documents. In response to Contech's motion, Wingfield reiterated his allegations of wrongful discharge and replied that Contech's intent in terminating him was a question of fact that should defeat the motion for summary judgment. Wingfield did not attach any documents or other proof to support his response. After a hearing, the trial court found that there was no genuine issue as to any material fact and that Contech was entitled to summary judgment as a matter of law. Wingfield appeals from this decision.\\nOn appeal, this court need only decide if the grant of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion left a material question of fact unanswered. Flentje v. First Nat'l Bank of Wynne, 340 Ark. 563, 11 S.W.3d 531 (2000). The burden of sustaining a motion for summary judgment is on the movant. Id. All proof submitted must be viewed in the light most favorable to the party resisting the motion, and any doubts or inferences are resolved against the moving party. Id. Once the moving party has established a prima facie entitlement to summary judgment by affidavits or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. Summary judgment is appropriate under Ark. R. Civ. P. 56(c) when there is no genuine issue as to a material fact and when the moving party is entitled to summary judgment as a matter of law. Id.\\nIn his first three points, Wingfield argues that summary judgment was inappropriate because there remain unresolved questions of fact regarding the reason for his termination by Contech. Wingfield asserts that he was wrongfully terminated in retaliation for his whistle-blowing activities and that Contech is estopped because of this wrongful discharge from exercising its option to repurchase his stock and collecting interest on the promissory note. He further contends that the issue of estoppel should have been presented to the jury.\\nWingfield cites Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988), and Skrable v. St. Vincent Infirmary, 57 Ark. App. 164, 943 S.W.2d 236 (1997), as support for his argument. In Sterling, supra, and in Skrable, supra, the appellate courts recognized an exception to the employment-at-will doctrine for wrongful discharge where the employee is fired in violation of a well-established public policy of the state. The supreme court in Sterling held that it is a violation of the public policy of this state for an employer to discharge an employee for reporting a violation of state or federal law. Sterling, supra. The court also stated that an action for wrongful discharge sounds exclusively in contract. Id. The burden of establishing a prima facie case of wrongful discharge is upon the employee, but once the employee has met its burden, the burden shifts to the employer to prove that there was a legitimate, nonretaliatory reason for the discharge. General Electric Co. v. Gilbert, 76 Ark. App. 375, 65 S.W.3d 892 (2002). The general measure of damages in a wrongful discharge action is the sum of lost wages from termination until the day of trial, less the sum of any wages that the employee actually earned or could have earned with reasonable diligence, and the employee can also recover any other tangible employment benefit lost as a result of the termination. Id.\\nEven assuming that Wingfield demonstrated sufficient evidence of wrongful discharge to defeat a motion for summary judgment, Contech contends that these cases do not support Wingfield's argument that it was thus estopped from collecting interest on the promissory note. Contech asserts that the doctrine of estoppel has no application in this case and that Wingfield has cited no authority to support his position.\\nFour elements are necessary to establish estoppel: \\\"(1) the party to be estopped must know the facts; (2) the party to be estopped must intend that his conduct be acted on or must act so that the party asserting the estoppel had a right to believe it was so intended; (3) the party asserting the estoppel must be ignorant of the facts; and (4) the party asserting the estoppel must rely on the other's conduct and be injured by that reliance.\\\" Santifer v. Arkansas Pulpwood Co., Inc., 66 Ark. App. 145, 151, 991 S.W.2d 130, 134 (1999).\\nAs argued by Contech, Wingfield does not claim that Contech induced him to sign the promissory note or Stockholders Agreement or that he was not aware of their provisions. Rather, Wingfield is arguing that Contech did not have good cause to terminate his employment, so that CHC should not be permitted to exercise the call option and Contech should not be allowed to accelerate the promissory note and collect the interest due on the note. However, the promissory note states that it matures if Wingfield's employment is terminated \\\"for any reason.\\\" Also, the Stockholders Agreement provides for the exercise of a call option on the occurrence of a termination event, which includes terminations with or without cause, \\\"or for any other reason.\\\" Thus, regardless of Contech's motivation in terminating Wingfield's employment, CHC was entitled to exercise its right to repurchase its stock from Wingfield, and Wingfield has not provided any authority to the contrary. The only significance to the reason behind Wingfield's termination under the Stockholders Agreement would be its effect on the price that he was paid for the stock, either book value or original cost. Moreover, Wingfield did not file a counterclaim challenging Contech's termination of his employment or challenging the price to be paid for his stock. Instead, Wingfield asserted these claims as a defense to his obligation of interest on the promissory note.\\nContech filed suit against Wingfield simply to collect the interest due on the promissory note. Wingfield admits that he signed this note, and he does not contend that the note is invalid. It is improper to deny interest where the obligation is not purely equitable but instead is a legal obligation based upon a promissory note. Peek v. Brickey, 300 Ark. 354, 779 S.W.2d 152 (1989). In his response to Contech's summary judgment motion, Wingfield failed to meet proof with proof and show a material issue of fact on this issue.\\nWingfield next argues that there are unresolved factual issues as to whether the provisions in the Stockholders Agreement requiring the employee to forfeit any gain in the stock if terminated with cause are against the public policy of this state. Asserting that our appellate courts have not directly addressed this issue, Wingfield instead cites a recent case from Kentucky, Man O War Restaurants, Inc. v. Martin, 932 S.W.2d 366 (Ky. 1996), as support for his argument on this point. In Man O War, the court recognized the enforceability of \\\"buy-back\\\" agreements between a corporation and its shareholders. However, the court found that a contract provision requiring the employee, upon the termination of his employment, to return his stock for the sum he originally paid operated as a forfeiture or penalty for breach of contract, and was a form of unreasonably excessive liquidated damages. Id. The court stated that whether the employee's termination was for cause or without cause was not decisive, and it accepted the trial court's finding that the employee was terminated for reasonable cause. Id. The court held that the provision could only be upheld if the employee was paid book value or fair market value for the stock. Id. Wingfield urges this court to follow the reasoning in Man O War and to find that enforcement of the call option provision is lawful only if he is fairly compensated for his stock. He asserts that he is entitled to at least the book value of the stock at the time of termination or transfer.\\nContech argues, however, that the call option provision is not against, the public policy of this state or the state of Delaware, under which the Stockholders Agreement states that it is to be construed. In Keene Corp. v. Hoofe, 267 A.2d 618 (Del. 1970), the Delaware court upheld a contract provision allowing the corporation the right to repurchase the stock of an employee after his termination for the same price at which the stock was originally purchased. See also Piltsbury Co. v. Elston, 283 N.W.2d 370 (Minn. 1979) (holding that a corporation had an absolute right to repurchase restricted shares of stock at the option price paid by the officer); Reinberg v. Zarrow, 667 P.2d 465 (Okla. 1983) (findingthat an agreement to repurchase stock was binding even though there was a disparity between the price specified in the agreement and the actual value of the stock); Kanawha-Roane Lands, Inc. v. Burford, 178 W.Va. 390, 359 S.E.2d 618 (W. Va. 1987) (holding that a stock repurchase agreement allowing the corporation to repurchase shares at the original purchase price was valid).\\nAlthough an Arkansas case dealing with a similar situation held that the original purchase price was not a \\\"fair price\\\" and that it was an unreasonable restraint upon alienation under a previous version of Ark. Code Ann. \\u00a7 4-26-610 (Repl. 2001), see Systematics, Inc. v. Mitchell, 253 Ark. 848, 491 S.W.2d 40 (1973), the legislature subsequently amended the statute in response to this decision. See James A. Carmody, Corporations-Stock Transfer Restrictions Systematics, Inc. v. Mitchell and Act 409 of 1973, 27 Aril. L. Rev. 554 (1973). Subsection (c) of the statute was amended and states that \\\"'[njothing in this chapter is intended to prevent the holder or holders of any or all of the shares of stock of a corporation, or the corporation in which the holder or holders own any or all of the shares of stock, from subjecting the shares owned by the aforesaid parties by written contract or written agreement to restrictions, including stock options.\\\" Ark. Code Ann. \\u00a7 4-26-610(c)(l). In addition, section 4-26-610(c)(2) states that \\\"[ajny price orformula for determining the price set by the agreement or contract shall be deemed a fair price.\\\" Subsection (d) was also added, which states that \\\"unreasonable restraint on alienation shall have no effect upon the validity or enforceability of any written contract between or among those parties subject to the provisions of subsection (c) of this section.\\\" The Business Corporation Act of 1987 also provides that a corporation may place restrictions on the transfer of shares for any reasonable purpose and may require the shareholder to first permit the corporation the option to acquire the restricted shares. Ark. Code Ann. \\u00a7 4-27-627 (Repl. 2001).\\nThe public policy of a state is found in its constitution and statutes. Sterling Drug, supra. Because Wingfield has not demonstrated that the provisions in the Stockholders Agreement in this case are against public policy, his argument that he should not be required to comply with its provisions is without merit. Also, even if there is merit to Wingfield's argument that the provision that he is only paid his original purchase price for the stock in the event of his termination for cause is against public policy, he has not demonstrated how this excuses his obligation to pay interest on the promissory note. Contech brought this action to recover the interest due on the note, and although Wingfield is in effect requesting a set-off for the stock's increase in value, he did not file a counterclaim or other action against CHC challenging these provisions in the Stockholders Agreement. Consequently, we conclude that there were no genuine issues of material fact left unresolved and that Contech was entitled to summary judgment as a matter of law on its claim for the interest due on the note.\\nAffirmed.\\nVaught and Baker, JJ., agree.\"}"
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+"{\"id\": \"6136361\", \"name\": \"DELIGHT OAK FLOORING COMPANY, INC. v. ARKANSAS LOUISIANA GAS COMPANY\", \"name_abbreviation\": \"Delight Oak Flooring Co. v. Arkansas Louisiana Gas Co.\", \"decision_date\": \"1985-02-20\", \"docket_number\": \"CA 84-117\", \"first_page\": \"24\", \"last_page\": \"26\", \"citations\": \"14 Ark. App. 24\", \"volume\": \"14\", \"reporter\": \"Arkansas Appellate Reports\", \"court\": \"Arkansas Court of Appeals\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T00:05:01.359304+00:00\", \"provenance\": \"CAP\", \"judges\": \"Cracraft, C.J., and Cloninger, J., agree.\", \"parties\": \"DELIGHT OAK FLOORING COMPANY, INC. v. ARKANSAS LOUISIANA GAS COMPANY\", \"head_matter\": \"DELIGHT OAK FLOORING COMPANY, INC. v. ARKANSAS LOUISIANA GAS COMPANY\\nCA 84-117\\n684 S.W.2d 271\\nCourt of Appeals of Arkansas Division II\\nOpinion delivered February 20, 1985\\nW. Swain Perkins, and Larry Dean Kissee, for appellant.\\nMcKenzie, McRae ir Vasser, for appellee.\", \"word_count\": \"559\", \"char_count\": \"3160\", \"text\": \"James R. Cooper, Judge.\\nAfter a non-jury trial, the court awarded the appellee judgment for $5,200.62, representing the amount due for natural gas billed to the appellant. On appeal, the issue presented is whether the trial court erred in refusing the appellant's request for a jury trial. The case was set to be tried on September 23, 1983. On September 6, 1983, the appellant filed a request for a jury trial. ARCP Rule 38(a) provides thatrequests fora jury trial must be made \\\"not later than 20 days prior to the trial date.\\\" Under Rule 38, the request should have been filed on or before September 3, 1983. However, ARCP Rule 6(a) provides that where the last day of a period ends on a Saturday, Sunday, or legal holiday, the time runs until the end of the next day which is not a Saturday, Sunday or legal holiday. Since September 3, 1983 was a Saturday, and the next day was Sunday, and September 5, 1983 was Labor Day, the September 6, 1983 filing was timely.\\nAt the time the case was set, the local court rules in Pike County provided that requests for a jury trial had to be made at least 21 days prior to pretrial. Whether such a rule was on file with the Arkansas Supreme Court Clerk or not is immaterial, since the rule conflicted with ARCP, Rule 28(a). Thus, the trial court erred in refusing to try the case to a jury.\\nThe appellee argues that, even if the trial court erred in refusing to empanel a jury, the appellant has suffered no prejudice as no fact question was presented and the trial court would have been required to direct a verdict in the appellant's favor. We disagree.\\nThe appellant defended this suit on the basis that its manufacturing process was shut down during the period of time involved; that the natural gas passed through the meter, but escaped due to a leak and was never used by it; that the appellant had received a shut-off notice from the appellee which indicated that service would be terminated as of a specific date unless the balance due was paid; and that practice had been followed by the appellee in the past and the appellant relied on the notice and the past practices of the appelee in assuming that the service was actually terminated as of the date on the notice. The trial court noted that, although the appellant claimed to have relied on the notice and the past practices, it acknowledged having received additional bills, and that it did nothing to seek to recover its deposit. We believe that this evidence presented a factual question as to the appellant's reliance on the notice and the past business practices of the appellee, which would have to be balanced against its inaction regarding the continued billing and the deposit. Therefore, we find that an issue of fact was presented and the appellant was entitled to have it presented to a jury.\\nReversed and remanded for a new trial.\\nCracraft, C.J., and Cloninger, J., agree.\"}"
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+"{\"id\": \"6137297\", \"name\": \"Charles FRESHOUR v. Brenda WEST and State of Arkansas ex rel. Office of Child Support Enforcement\", \"name_abbreviation\": \"Freshour v. West\", \"decision_date\": \"1998-03-04\", \"docket_number\": \"CA 97-612\", \"first_page\": \"60\", \"last_page\": \"68\", \"citations\": \"61 Ark. App. 60\", \"volume\": \"61\", \"reporter\": \"Arkansas Appellate Reports\", \"court\": \"Arkansas Court of Appeals\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T02:35:26.764538+00:00\", \"provenance\": \"CAP\", \"judges\": \"Arey, Stroud, and Neal, JJ., agree.\", \"parties\": \"Charles FRESHOUR v. Brenda WEST and State of Arkansas ex rel. Office of Child Support Enforcement\", \"head_matter\": \"Charles FRESHOUR v. Brenda WEST and State of Arkansas ex rel. Office of Child Support Enforcement\\nCA 97-612\\n962 S.W.2d 840\\nCourt of Appeals of Arkansas Divisions I and II\\nOpinion delivered March 4, 1998\\n[Petition for rehearing denied April 8, 1998.]\\nMildred Havard Hansen, for appellant.\\nGary L. Sullivan, for appellee.\", \"word_count\": \"2272\", \"char_count\": \"13899\", \"text\": \"Wendell L. Griffen, Judge.\\nCharles Freshour has appealed the decision of the Pulaski County Chancery Court that denied his motion to change custody of his minor child from her maternal grandmother. Appellant contends that the chancellor erred in maintaining custody of his child, born out of wedlock, with her legal guardian and maternal grandmother, appellee Brenda West, despite a finding that appellant was not unfit to have custody of the child. We find no error and affirm.\\nAppellant and the noncustodial mother, Tera West (\\\"West\\\"), conceived a child together when they were both 17 years old. West gave birth to Victoria West on May 11, 1993. Appellant was unsure whether he was the father of the child, and after initially visiting Victoria in the hospital at her birth, followed the advice of legal counsel who advised him against visiting the child. West lived with her mother, appellee, so after Victoria was born, West and Victoria returned home to live with appellee. Some time afterwards, appellee directed West to leave the residence because she refused to follow house rules. Victoria has remained with appellee since that time. Appellant eventually moved to Texas, studied to be a mechanic, married, and established a family life in Houston, Texas.\\nMeanwhile, appellee became Victoria's legal guardian pursuant to Ark. Code Ann. \\u00a7 9-10-113 (Repl. 1993). She applied for and received AFDC and Medicaid benefits for Victoria. As a result, the Pulaski County Office of Child Support Enforcement (OCSE), filed a paternity action to determine whether appellant was Victoria's father. After paternity testing confirmed that appellant was Victoria's biological father, appellant filed a petition for change of custody in which he sought custody of Victoria, who was three years old when the petition was filed.\\nAfter hearings on September 27, 1996, and October 4, 1996, the chancellor ruled that although she could not find appellant either unfit or incompetent, it would be in the best interest of Victoria for her to remain in the custody of appellee. Appellant challenges that decision on appeal and argues that a decree should have been entered awarding custody to him because he is the biological parent and, therefore, preferred in the eyes of the law over all other persons, including a grandparent, unless found unfit or incompetent. See Feight v. Feight, 253 Ark. 950, 490 S.W.2d 140 (1973) (as between a parent and a grandparent, the law prefers the former unless the parent is incompetent or unfit); Golden v. Golden, 57 Ark. App. 143, 942 S.W.2d 282 (1997)(there is a preference for the parent above all other custodians); Ideker v. Short, 48 Ark. App. 118, 892 S.W.2d 278 (1995); McKee v. Bates, 10 Ark. App. 51, 661 S.W.2d 415 (1983).\\nIn child-custody cases, a chancellor's findings will not be reversed unless they are clearly erroneous or clearly against a preponderance of the evidence. Ark. R. Civ. P. 52(a); Ideker v. Short, supra. We give due regard to the opportunity of the trial court to judge the credibility of the witnesses, and to the chancellor's superior position to determine the facts. Id. The primary consideration in child-custody cases is the welfare and best interest of the children involved; all other considerations are secondary. Id. The welfare of the child is the polestar in every child-custody case.\\nThe flaw in appellant's reasoning arises from his failure to appreciate the factors involved when a change-of-custody petition is considered. Appellant plainly sought a decision that changed custody from appellee. In deciding whether a change of custody is warranted, a chancellor must first determine whether there has been a material change in circumstances of the parties since the most recent custody decree; if material changes have occurred, the chancellor must then determine custodial placement, with the primary consideration being the best interest of the child. Turner v. Benson, 59 Ark. App. 108, 953 S.W.2d 596 (1997). The party seeking modification of a child-custody order has the burden of showing a material change in circumstances. Jones v. Jones, 326 Ark. 481, 931 S.W.2d 767 (1996).\\nWe have no difficulty affirming the chancellor's decision because appellant failed to show a material change of circumstances to justify a change in custody. Appellee has exercised custody of Victoria most of her life since the child was born on May 11, 1993. After appellee assigned her rights to child support to the Pulaski County Child Support Enforcement Unit and alleged in a June 6, 1995, affidavit that appellant was the child's biological father, appellant denied paternity. His May 14, 1996, motion for change of custody was filed only after DNA testing had established paternity.\\nMore important, however, is the clear evidence that appellant took virtually no interest in and provided no support, care, supervision, and protection for Victoria until the paternity action aimed at recovering the money that had been paid on Vic toria's behalf had been filed by the Office of Child Support Enforcement. In that regard, we note that Ark. Code Ann. \\u00a7 9-10-113(c) (Repl. 1993) provides that a court may award custody of a child born out of wedlock to a biological father upon a showing that: (1) he is a fit parent to raise the child; (2) he has assumed his responsibilities toward the child by providing care, supervision, protection, and financial support for the child; and (3) it is in the best interest of the child to award custody to the biological father. The chancellor was clearly justified in denying appellant's motion to change custody where the proof established that he had not assumed the responsibilities specified at section 9-10-113(c)(2), even if appellant was deemed a fit parent in other respects.\\nWe also affirm the chancellor because her finding that it is in Victoria's best interest to remain in the custody of appellee is not clearly erroneous. Aside from the fact that appellant failed to establish a material change of circumstances to justify modifying the custody arrangement, it is fundamental that the primary consideration in child-custody cases is the welfare and best interest of the children involved; all other considerations, including the legal preference favoring biological parents over third persons, are secondary. Our appellate decisions have consistendy recognized that a heavier burden is placed on a chancellor in child-custody cases to utilize, to the fullest extent, all of her powers of perception in evaluating the witnesses, their testimony, and the child's best interests, and that we know of no cases in which the superior ability, position, and opportunity of the chancellor to observe the parties carries as great a weight as those involving child custody. Turner v. Benson, supra.\\nThese controlling principles clearly lead us to affirm the chancellor's finding that it is in Victoria's best interest that she remain in the custody of appellee. The proof shows that Victoria has lived with appellee for practically her entire life, and that she has known no other parent figure. She also has grown up with an older half-sister, unrelated to appellant, with whom she enjoys a familial bond and from whom she would be separated if appellant is granted custody. Appellee has given Victoria a home, nurture, and a sense of stability that the chancellor was entitled to consider in evaluating whether her best interest would be served by grant ing appellant's motion to change custody based only on his status as biological father, particularly where appellant had failed to provide those vital elements for the child's life. We decline appellant's invitation to reverse the chancellor and to hold, in effect, that his status as a biological parent trumps what is in the best interest of his four-year-old daughter.\\nFinally, we note that appellant emphasizes the chancellor's assessment that he is a fit person to take custody if appellee's circumstances change, and characterizes that assessment as an almost impossible hurdle that will prevent him from ever having custody of his daughter. We do not know whether appellee's circumstances will change, and neither did the chancellor. Flowever, the chancellor was well informed about what Victoria's circumstances had been insofar as appellant was concerned. Between appellant and appellee, the proof concerning who had acted to protect and advance Victoria's best interest was clear and uncontradicted. If appellant views the chancellor's decision as a hurdle, he can remember that the chancellor decided what was in Victoria's best interest based upon proof that appellant had acted without apparent regard for her interest as long as it appeared convenient and/or financially advantageous to do so. The principle that the best interest of the child is the polestar in determining child custody disputes not only allowed the chancellor to rule as she did, it practically dictated the result that she reached when one considers how appellant had behaved concerning Victoria's best interest.\\nThe fact that appellant was but seventeen years old when Victoria was conceived, while remarkable, is legally insignificant. Victoria was his responsibility. He left her. He cannot fault the chancellor for correctly observing that appellee has provided the care that he was obligated but refused to provide. Nor can he use his biological status as father to erase his disregard for the child's best interest by his demonstrated failure and refusal to provide for her for most of her life.\\nAppellee was Victoria's legal guardian, and appellant only moved for custody after OCSE sought reimbursement for public benefits paid to support Victoria. There had been no material change in circumstances that would prompt a change of custody, as appellant had virtually abandoned the minor child until he was sought out by OCSE. However, even if a change in circumstances had been shown, the chancellor's decision that it was in the best interest of the minor child to be placed with the maternal grandmother was not clearly erroneous.\\nAffirmed.\\nArey, Stroud, and Neal, JJ., agree.\\nPittman and Jennings, JJ., dissent.\"}"
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+"{\"id\": \"6139255\", \"name\": \"Michael PYLE v. Brian SAYERS\", \"name_abbreviation\": \"Pyle v. Sayers\", \"decision_date\": \"2000-12-20\", \"docket_number\": \"CA 99-1502\", \"first_page\": \"207\", \"last_page\": \"226\", \"citations\": \"72 Ark. App. 207\", \"volume\": \"72\", \"reporter\": \"Arkansas Appellate Reports\", \"court\": \"Arkansas Court of Appeals\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T23:37:23.188865+00:00\", \"provenance\": \"CAP\", \"judges\": \"Pittman, Hart, Bird, and Koonce, JJ., agree.\", \"parties\": \"Michael PYLE v. Brian SAYERS\", \"head_matter\": \"Michael PYLE v. Brian SAYERS\\nCA 99-1502\\n34 S.W.3d 786\\nCourt of Appeals of Arkansas Divisions I, II, and III\\nOpinion delivered December 20, 2000\\nShackleford, Phillips, Wineland & Ratcliff, P.A., for appellant.\\nJohn D. Lighifoot, P.L.L.C., for appellee.\", \"word_count\": \"6443\", \"char_count\": \"38102\", \"text\": \"JOHN E. JENNINGS, Judge.\\nThis case is a will contest, with issues concerning undue influence and mental capacity. Mabel Hammond was seventy-five years old in the summer of 1998. On May 12, 1998, she was admitted to the hospital in El Dorado. She was seen by Dr. Barry Moore, who diagnosed her as suffering from (1) depression, (2) dementia, possibly Alzheimer's disease, and (3) weight loss, possibly due to cancer. Dr. Moore determined by history that Mrs. Hammond had suffered several strokes in the past.\\nOn May 18, Mrs. Hammond was admitted to Oak Budge Nursing Home in El Dorado. On June 8 she executed the will in question at the nursing home. The will left her entire estate to her husband, WA. Hammond. If her husband predeceased her, her jewelry was left to her great-niece Karen Sayers, and a great-grandniece, Sarah Sayers, with the residue of her estate to go to a great-nephew, Brian Sayers, and his wife, Rhonda Sayers, in equal shares. Approximately two weeks later W.A. Hammond died of cancer at home.\\nMrs. Hammond left Oak Rddge Nursing Home on June 15. She died at home on June 25. Brian Sayers, the appellee here, filed a petition in Union County Probate Court to probate Mrs. Hammond's will. The petition was opposed by the appellant, Michael Pyle, on his own behalf as Mrs. Hammond's nephew and heir at law, and as guardian for his mother, Mary Pyle, the testatrix's sister.\\nFollowing a hearing, the probate judge issued an extensive letter opinion finding the will to be valid. On appeal, Mr. Pyle argues (1) the trial court erred in not requiring the will's proponents to overcome the rebuttable presumption of undue influence and lack of mental capacity and (2) the trial court's decision on these issues was clearly erroneous. We affirm.\\nAppellant's first argument is:\\nThe court charged the appellee with the duty of presenting proof of lack of undue influence and presence of testamentary capacity beyond a reasonable doubt. However, the true duty of the proponent is to overcome a presumption that the testatrix did not have testamentary capacity and was not [he] unduly influenced by their proponent of the will by presenting proof beyond a reasonable doubt.\\nThis is a distinction without a difference. The trial court held, the appellee concedes, and we agree, that the will was procured by the beneficiary within the meaning of the law. When a beneficiary procures a will, there is a rebuttable presumption of undue influence and a lack of capacity. See Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992).\\nAs the appellant correctly states, questions of testamentary capacity and undue influence are so interwoven in any case where these questions are raised that the court necessarily considers them together. See Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984); Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979); Short v. Stephenson, 238 Ark. 1048, 386 Ark. 501 (1965).\\nIn Hiler v. Cude, 248 Ark. 1065, 455 S.W.2d 891 (1970), the supreme court said:\\nWe adhere to the rule that the burden of proving mental incompetency, undue influence and fraud which will defeat a will is upon the party contesting it. We hold this burden, in the sense of the ultimate risk of nonpersuasion, never shifts from the contestant. This does not, however, conflict with the rule concerning the burden of going forward with the evidence or burden of evidence.\\nIn Rose v. Dunn, 284 Ark. 42, 679 Ark. 180 (1984), the court said that \\\"the presumption of undue influence in the case of a beneficiary who procures the making of a will does not shift the ultimate burden of proof.\\\" In Hodges v. Cannon, 68 Ark. App. 170, 5 S.W.3d 89 (1999), we explained:\\nIn the case of a beneficiary of a will who procures the making of the will, a rebuttable presumption of undue influence arises, which places on the beneficiary the burden of going forward with evidence that would permit a rational fact-finder to conclude, beyond a reasonable doubt, that the will is not the product of insufficient mental capacity or undue influence. Looney v. Estate of Wade, 310 Ark. 708, 839 S.W.2d 531 (1992); Edwards v. Vaught, 284 Ark. 262, 681 S.W.2d 322 (1984); and Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984).\\nIn both his letter opinion and final order, the probate judge stated that the will's proponents bore the burden of proof on both issues beyond a reasonable doubt. The trial court did not err in this regard.\\nAppellant's final argument is that the evidence does not support the trial court's finding that Mrs. Hammond had the mental capacity to execute the will and that she was not subjected to undue influences. We hold that the probate judge's decision was not clearly erroneous.\\nThe Standard of Review\\nWe will reverse a probate court's determination on the questions of mental capacity and undue influence only if they are clearly erroneous, giving due deference to the superior position of the trial judge to determine the credibility of the witnesses and the weight to be accorded their testimony. See Reddoch v. Blair, 285 Ark. 446, 688 S.W.2d 286 (1985). While our review must take into consideration that the will's proponent bore the burden of proof, or the burden of going forward with the evidence, beyond a reasonable doubt, the question on appeal is not whether we have such a doubt. The situation is analogous to an appeal in a criminal case: the burden of proof is beyond a reasonable doubt, but our standard of review is whether the jury verdict is supported by substantial evidence.\\nSubstantive Law on Mental Capacity\\nEvery person of sound mind and disposing memory has the untrammeled right to dispose of his or her property by will as he or she pleases. See Puryear v. Puryear, 192 Ark. 692, 94 S.W.2d 695 (1936). If the maker of a will has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what consideration, then he possesses sufficient mental capacity to execute such an instrument. Richard v. Smith, 235 Ark. 752, 361 Ark. 741 (1962). Sufficient mental ability to exercise a reasonable judgment concerning these matters in protecting his own interest in dealing with another is all the law requires. Id. With respect to the ability to know the extent and condition of the property to be disposed and to whom it is being given, and to appreciate the desserts and relations to the testator of others against whom he discriminates or excludes from participation in his estate, it is unnecessary that he actually has this knowledge. See Huffaker v. Beers, 95 Ark. 158, 128 S.W. 1040 (1910). It is sufficient if he has the mental capacity to understand the effect of his will as executed. Puryear, supra. If a person has such mental capacity then, in the absence of fraud, duress, or undue influence, mental weakness, whether produced by old age or through physical infirmities, will not invalidate an instrument executed by him. Richard, supra; McCulloch v. Campbell, 49 Ark. 367, 5 S.W. 590 (1887). A testator's old age, physical incapacity, and partial eclipse of mind will not invalidate a will if he has the requisite testamentary capacity when the will is executed. Hodges v. Cannon, 68 Ark. App. 170, 5 S.W.3d 89 (1999). A testatrix does not lack testamentary capacity merely because old age has impaired her mental faculties. See Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173 (1997).\\nUndue Influence\\nThe influence that the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of her property. Orr v. Love, 225 Ark. 505, 283 S.W.2d 667 (1955). With respect to a will obtained by influence, it is not unlawful for a person, by honest intercession and persuasion, to procure a will in favor of himself, or another person. McDaniel v. Crosby, 19 Ark. 533 (1858). Whether the disposition was a natural one is a relevant inquiry. See Boggianna v. Anderson, 78 Ark. 420, 94 S.W. 51 (1906). The influence of children over parents is legitimat\\u00e9 so long as they do not extend a positive dictation and control over the mind of the testator. Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979). Cases involving undue influence will frequently depend on the credibility of witnesses. Higgs v. Estate of Higgs, 48 Ark. App. 148, 892 S.W.2d 284 (1995).\\nThe Facts\\nKaren Richards testified that she was Brian Sayers' sister and Mabel Hammond's great-niece. She testified that she and Brian moved in with Mrs. Hammond when she was twelve and Brian was eight or nine. She visited her in the nursing home two weeks before her death and testified that Mrs. Hammond recognized her. She also recognized Karen Richards's son, Jace, although she had not seen him in five years.\\nMrs. Richards testified that Mrs. Hammond was physically withered and had not been eating right. She testified that Mrs. Hammond's mental capacity was about the same as it had been five years previously although she was very tired and did not speak as much. She testified that her great-aunt was closer to Brian than any of them because he had come to her house at a younger age than the rest. Mrs. Richards was a psychiatric registered nurse and testified that she thought Mrs. Hammond was of sound mind.\\nEdwin Gogo was a registered nurse at Oak Badge Nursing Home. He testified that she was oriented to herself and some family members. He said that Mrs. Hammond always told him that Brian Sayers was her son. He testified that Mrs. Hammond was only disoriented at nighttime and described that as the \\\"sundown syndrome.\\\"\\nDonna Rainey was the social services director at Oak Ridge Nursing Home. She testified that Mrs. Hammond was very frail and weak. She said that Mrs. Hammond's husband had been taking care of her at home and that they were both sick. She testified that Mrs. Hammond realized they were both terminally ill and said that she did not think she could stay at home and watch him die.\\nMrs. Rainey testified that Mrs. Hammond knew what she wanted and that she was \\\"very clear in those regards.\\\" She testified that Brian was there everyday. She said, \\\"I think Mrs. Hammond knew her own mind as far as what she wanted.\\\" She testified that Mrs. Hammond called Brian Sayers her son.\\nDiane Beeson was a LPN at Oak Ridge Nursing Home. She testified that Mrs. Hammond was alert and knew herself and family. She said that Mrs. Hammond knew she was in the hospital and nursing home, but she did not know where.\\nAngela Oles was a supervising registered nurse at Oak Ridge Nursing Home. She testified that Mrs. Hammond was a terminal-stage, medicare patient who had a poor appetite. She testified that at the time Mrs. Hammond signed a living will proxy, she knew what she was doing. She also testified that Mrs. Hammond always referred to Brian Sayers as her son.\\nCharles L. Massey was a licensed practical nurse at Oak Ridge Nursing Home. He testified that Mrs. Hammond was a thin, frail little lady. He testified that when Brian Sayers would come into her room she would smile.\\nJennifer Hughes was employed at Dr. Pick Brown's office and was asked by Lily Gregory, a co-worker, to witness Mrs. Hammond's will. She testified that she did not get the impression that anything was being forced upon Mrs. Hammond. She testified that Brian Sayers read the will aloud to her and that she asked certain questions about how the will was drafted. Mrs. Hughes testified that she was satisfied of Mrs. Hammond's competence when she signed and witnessed the will and that in her opinion Mrs. Hammond understood what she was signing.\\nLily Ann Gregory testified that she also worked for Dr. Brown in El Dorado and that she had known Mr. and Mrs. Hammond over a period of approximately twenty years. She testified that she had heard Mrs. Hammond refer to Brian as her child and she would not be surprised that if, in the nursing home, Mrs. Hammond referred to him that way. She testified that Mrs. Hammond recognized her when she came into the room although she had not seen her for a couple of years. She testified that she had no question as to Mrs. Hammond's competence at the moment she initialed and signed the will.\\nMary Breshears testified that she had known Mabel Hammond since 1982 and that she had referred to Brian Sayers as her son. She testified that she never detected anything that concerned her about the soundness of her mind during her stay in the nursing home.\\nBrian Sayers testified that Mabel Hammond was his great-aunt and that he had come to live with her in the fourth grade and had lived with her ever since. He believed he had been adopted by her. He testified that she said some things that caused him to ask her if she wanted a will, and she said that she did. He testified that there was no doubt in his mind that the will was understood by her and expressed her wishes. He testified:\\nI am not going to say that auntie wasn't very frail, and not all of the time was she quite as sharp as she always was. But never at one time can I remember did auntie not know what was going on, what was being talked to her, or what we were discussing.\\nHe testified that she had no other heirs who had made contact with her in the last ten or twenty years that he could remember.\\nDr. Barry Moore testified that Brian Sayers was taking care of Mrs. Hammond daily. He expressed his opinion \\\"to a reasonable degree of medical certainty\\\" as to whether Mrs. Hammond would have had sufficient mental capacity on the day of the execution of the will to understand without prompting the natural \\\"recipients\\\" of her bounty. He said that she lacked such capacity. He testified that it was his understanding that a person must be \\\"oriented to time, place and person.\\\"\\nWhat the nursing home personnel meant when they said Mrs. Hammond was \\\"confused as to time and place\\\" is clearly explained in Mr. Gogo's testimony. He said, \\\"If I were in front of Mrs. Hammond now and asked her the time and she said twelve noon and the time was actually 11:15 a.m. I would have entered that as confused as to exact time. If a family member had asked her if she knew where she was, and she said she is in the nursing home, I can say she is disoriented as to the exact place.\\\"\\nThe dissent finds the single reference to Mrs. Hammond's \\\"children\\\" in the will to be quite significant. It seems reasonable to assume, however, that Mrs. Hammond believed the will referred to her stepchildren. The dissent also places great weight on the use of the word \\\"trustee\\\" in the will but neglects to say that the word only appears in the phrase \\\"executor and trustee.\\\" The probate judge did not find this language to be of any great importance, nor do we.\\nThe testimony offered by the proponent and the other witnesses of the will is sufficient, if believed, to establish that Mrs. Hammond was competent to execute the will and that the will was not the product of undue influence. The trial court was entided to credit the testimony of these witnesses. The court's decision is not clearly erroneous.\\nAffirmed.\\nPittman, Hart, Bird, and Koonce, JJ., agree.\\nGriffen, Stroud, Neal, and Crabtree, JJ., dissent.\\nMary Pyle did not testify at trial and there was evidence that it may have been as long as twenty years since she and Mabel Hammond had seen each other.\"}"
\ No newline at end of file
diff --git a/arkansas/6139331.json b/arkansas/6139331.json
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index 0000000000000000000000000000000000000000..5a142ce40764e142c245c73b470864545bab5999
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+"{\"id\": \"6139331\", \"name\": \"Jerry Sam MACKEY v. STATE of Arkansas\", \"name_abbreviation\": \"Mackey v. State\", \"decision_date\": \"1997-03-12\", \"docket_number\": \"CA CR 96-309\", \"first_page\": \"164\", \"last_page\": \"171\", \"citations\": \"56 Ark. App. 164\", \"volume\": \"56\", \"reporter\": \"Arkansas Appellate Reports\", \"court\": \"Arkansas Court of Appeals\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T00:44:28.080274+00:00\", \"provenance\": \"CAP\", \"judges\": \"Robbins, C.J., and Stroud and Jennings, JJ., agree.\", \"parties\": \"Jerry Sam MACKEY v. STATE of Arkansas\", \"head_matter\": \"Jerry Sam MACKEY v. STATE of Arkansas\\nCA CR 96-309\\n939 S.W.2d 851\\nCourt of Appeals of Arkansas Divisions III and II\\nOpinion delivered March 12, 1997\\nWilliam R. Simpson, Jr., Public Defender, by: C. Joseph Cordi, Jr., Deputy Public Defender, for appellant.\\nWinston Bryant, Att\\u2019y Gen., by: Brad Newman, Asst. Att\\u2019y Gen., for appellee.\", \"word_count\": \"2159\", \"char_count\": \"13069\", \"text\": \"Olly Neal, Judge.\\nAfter an August 14, 1995, bench trial, appellant Jerry Sam Mackey was found guilty of the offense of residential burglary in violation of Ark. Code Ann. \\u00a7 5-39-201(a)(2) (Repl. 1993) and being an habitual offender under Ark. Code Ann. \\u00a7 5-4-501 (Repl. 1995). Mr. Mackey now appeals from the September 12, 1995, judgment of the Pulaski County Circuit Court which reflected that he was sentenced as an habitual offender, pursuant to Ark. Code Ann. \\u00a7 5-4-501. Mr. Mackey was sentenced to a 108-month term of imprisonment in the Arkansas Department of Correction. The evidence supporting appellant's conviction is not in dispute, and the sufficiency of the evidence to sustain the conviction is not challenged on appeal. Mr. Mackey challenges only his sentence on appeal, maintaining that the State's evidence that he had been convicted of three prior felonies was insufficient to justify the court's decision to sentence him as an habitual offender.\\nThe State, citing Fellows v. State, 309 Ark. 545, 828 S.W.2d 847 (1992), argues that appellant's sufficiency argument was not properly preserved for our review, and that as a result, we are precluded from addressing the merits of the issue on appeal. It is undisputed that appellant failed to object to the insufficiency of the evidence to prove his habitual status at trial.\\nThe Fellows case is one of a line of cases following the supreme court's holding in Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). In Wicks, an appeal from a jury verdict finding Wicks guilty of two counts of rape, the supreme court addressed two of Wicks's arguments, neither of which was supported by a contemporaneous objection at trial. In discussing the deficiency, the court first noted the general, well-established rule that failure to object to an alleged error at trial results in waiver of the argument on appeal. The court then noted four exclusive exceptions to the rule: 1) when the death penalty is sought by the State and the court fails to notify the jury of matters essential to consideration of the death penalty; 2) where the trial judge commits error of which defendant's counsel has no knowledge or opportunity to object; 3) possibly where the trial court is derelict in its duty to intervene without objection to correct a serious error by admonition or order of mistrial; and 4) possibly where the asserted error is one \\\"affecting a substantial right.\\\"\\nWe note from the outset that while Wicks and its progeny all were appeals from jury verdicts, the current appeal is from a bench trial; the procedural requirements are different. One such difference was clarified recently in Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995). The supreme court held in Strickland that at bench trials, no directed-verdict motion based on the sufficiency of the evidence need be made, as such would be \\\"superfluous\\\"; \\\"the judge would only be directing his own verdict.\\\" The court stated:\\nOur supposition in the Igwe case was that a Trial Court, sitting as a trier of fact, would be sufficiently aware of the evidence and the elements of the crime that no such motion would be necessary, and that is why our rales do not require the motion to dismiss in non-jury-trial cases. We adhere to that supposition today.\\nId. at 318.\\nBecause the supreme court has essentially relieved trial counsel of the duty to apprise the trial court of deficiencies in the evidence, including missing elements of proof, it has concomitantly placed the burden upon trial judges to \\\"step in\\\" and order dismissal or other appropriate remedy where the evidence is insufficient. Here the court should have directed the State to produce evidence beyond a reasonable doubt that appellant had been convicted of three prior felonies as such was an element of the allegations contained in the information.\\nThe argument has been made that appellant has misclassified his argument as one of the insufficiency of the evidence when it should really be countenanced as a challenge to an illegal sentence. That argument has no merit. First of all, our bifurcation system created two separate and distinct phases of a criminal trial: guilt and punishment. Here, the only evidence of appellant's priors was presented during the State's case in chief, in an attempt to prove the habitual element; no certification of priors was entered or discussed at sentencing. Secondly, while being an habitual offender is not a separate offense, it is an enhancement provision that requires specific elements of proof that the record does not reflect were introduced in this case. Both the information by which he was charged and the judgment and commitment order refer to appellant's habitual status under \\u00a7 5-4-501, not \\u00a7 16-90-803 (Supp. 1995). The only \\\"proof\\\" that appellant had prior convictions was the State's contention \\\"we have certification of defendant's priors.\\\" Because a prosecutor's statements are not evidence, there is nothing in the record that justifies the court's finding that appellant should be sentenced as an habitual. See Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992); Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991). Although it was enacted at a later date, \\u00a7 16-90-803 contains no repealing clause, and does not conflict with \\u00a7 5-4-501; the range of sentencing is essentially the same under both statutes. Accordingly, the State has the option of alleging specific habitual status in the information or simply charging the underlying offense. Under the grid, a convicted felon's criminal history is automatically considered and applied in compiling a sentence. The record here contains neither a copy nor the original presentence report and reflects that the State's only attempt to prove prior felony convictions was made during the guilt phase of trial. Accordingly, the State's failure to provide proof of appellant's priors during the sentencing phase requires reversal of the court's finding that appellant was an habitual offender, and remand for resentencing.\\nReversed and remanded for resentencing.\\nRobbins, C.J., and Stroud and Jennings, JJ., agree.\\nRogers and Pittman, JJ., dissent.\"}"
\ No newline at end of file
diff --git a/arkansas/6140119.json b/arkansas/6140119.json
new file mode 100644
index 0000000000000000000000000000000000000000..b5848d8d3da4f975f7b5f06510c73561cc663085
--- /dev/null
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+"{\"id\": \"6140119\", \"name\": \"SMITH-BLAIR, INC., and Pacific Employers Insurance Company v. Cal L. JONES\", \"name_abbreviation\": \"Smith-Blair, Inc. v. Jones\", \"decision_date\": \"2002-05-01\", \"docket_number\": \"CA 01-1068\", \"first_page\": \"273\", \"last_page\": \"280\", \"citations\": \"77 Ark. App. 273\", \"volume\": \"77\", \"reporter\": \"Arkansas Appellate Reports\", \"court\": \"Arkansas Court of Appeals\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T01:43:16.575443+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"SMITH-BLAIR, INC., and Pacific Employers Insurance Company v. Cal L. JONES\", \"head_matter\": \"SMITH-BLAIR, INC., and Pacific Employers Insurance Company v. Cal L. JONES\\nCA 01-1068\\n72 S.W.3d 560\\nCourt of Appeals of Arkansas Division I\\nOpinion delivered May 1, 2002\\nHart, Shaw & Freeze, L.L.P., for appellants.\\nGarnet E. Norwood, for appellee.\", \"word_count\": \"1628\", \"char_count\": \"10089\", \"text\": \"Olly Neal, Judge.\\nThis is an appeal from the Workers' Compensation Commission (Commission), reversing the decision of the administrative law judge (ALJ) and awarding appellee additional benefits. On appeal, appellants argue that the Commission erred in holding that Cal Jones is entitled to addi tional benefits because the decision is not supported by substantial evidence. We affirm.\\nThe facts are as follows. Appellee Cal Jones was employed with appellant Smith Blair when he injured his right wrist on December 1, 1998, while testing and loading water meters at its, Texarkana, Arkansas, plant. Dr. Mark Gabbie, the initial treating physician, referred Jones to Dr. Hamlin, who then referred Jones to Dr. Frazier for surgery.\\nDr. Frazier diagnosed appellee with having a painful ulna sty-loid nonunion right wrist and recommended he undergo surgery, which was performed on April 2, 1999. On April 10, 1999, Dr. Frazier released appellee to return to work. When appellee returned to work, he was unable to perform his job duties for more than two hours due to the pain in his right upper extremity. On April 28, 1999, appellee requested a change of physicians. The request was denied, but appellee filed a request for a hearing. The ALJ, following the August 6, 1999 hearing, concluded that appellee was entitled to a change of physician and selected Dr. DeHaan, a Texarkana orthopedic surgeon.\\nAfter several examinations, Dr. DeHaan diagnosed appellee with having a nonunion ulna styloid fracture and a congenital ulna positive wrist. Dr. DeHaan recommended an ulna shortening procedure. After the procedure was performed, Dr. DeHaan recommended that appellee undergo physical therapy. Appellants refused to pay for the therapy, and appellee filed a claim requesting additional temporary total disability. The ALJ determined that appellee failed to prove by a preponderance of the evidence that he was entitled to additional medical treatment or benefits for temporary total disability. The Commission reversed the ALJ's finding, and this appeal follows.\\nIn reviewing a decision of the Commission, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the Commission. Smith v. County Market/Southeast Foods, 73 Ark. App. 333, 44 S.W.3d 737 (2001); Campbell v. Randal Tyler Ford Mercury, 70 Ark. App. 35, 13 S.W.3d 916 (2000). The question is not whether the evidence would have supported findings contrary to those made by the Commission, but only whether the Commission's decision is supported by substantial evidence. Matlock v. Blue Cross Blue Shield, 74 Ark. App. 322, 49 S.W.3d 126 (2001). Substantial evidence is that evidence which a reasonable mind might accept as adequate to support a conclusion. Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). If reasonable minds could reach the result found by the Commission, we must affirm the decision. Wal-Mart Stores, Inc. v. Brown, 73 Ark. App. 174, 40 S.W.3d 835 (2001).\\nIt is well settled that the employer takes an employee as he finds him. Oliver v. Guardsmark, Inc., 68 Ark. App. 24, 3 S.W.3d 336 (1999). An aggravation is a new injury resulting from an independent incident. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000). Being a new injury with an independent cause, an aggravation must meet the requirements for a compensable injury. Id. To sustain a compensable injury, one must prove by a preponderance of the evidence that (1) the injury arose out of and in the course of the employment, (2) the injury caused internal or external physical harm to the body that required medical services or resulted in disability or death, and (3) the injury was a major cause of the disability or need for treatment. Id.\\nWhether there is a causal connection between the injury and a disability and whether there is an independent intervening cause are questions of fact for the Commission to determine. Oak Grove Lumber v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998). Further, a compensable injury must be established by medical evidence supported by objective findings. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). Medical opinions addressing compensability must be stated within a reasonable degree of medical certainty. See Crudup; supra. Speculation and conjecture cannot substitute for credible evidence. Dena Constr. Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (Ark. App. 1980).\\nAppellants contend that there are four basic reasons the evidence is not substantial to support the Commission's finding that appellee is entided to additional benefits. First, appellants argue that appellee was ordered to return to work by Dr. Frazier follow ing his surgery without restrictions and that Dr. Frazier is the physician best qualified to examine appellee; thus, because Dr. Frazier found no impairment to his right upper extremity or right wrist, appellee was able to return to work. Further, appellants argue that because Dr. Frazier, in his June 29, 1999, report, opined that appellee could return to work, his healing period ended on June 29, 1999.\\nA claimant who has suffered a scheduled injury is entitled to benefits for temporary total disability during his healing period or until he returns to work. Ark. Code Ann. \\u00a7 11 \\u2014 9\\u2014 521(a) (Supp. 1999); see also Wheeler Const. Co. v. Armstrong, supra. The \\\"healing period\\\" continues until the employee is as far restored as the permanent character of his injury will permit, and there is nothing further in the way of treatment that will improve that condition. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).\\nAppellee attempted to return to work; however, he suffered severe pain when he went back to work. Thereafter, Jones requested that he be allowed to see another physician. He was eventually seen by Dr. DeHaan, who later diagnosed appellee with another condition that was causing his continued pain. Dr. DeHaan diagnosed a congenital ulna positive wrist condition that he opined was aggravated by claimant's injury. In his deposition, Dr. DeHaan stated, \\\"I think whatever injury he had aggravated or injured that thing which he was born with or that deformity which he was born with.\\\" The Commission recognized that only Dr. DeHaan diagnosed appellee's condition and opined that it was aggravated by and causally related to his employment. It therefore found that appellee proved that the aggravation to his congenital ulna positive wrist condition was job-related and compensable. We agree.\\nSecond, appellants argue that evidence is not substantial to support the Commission's finding that appellee is entitled to additional benefits because appellee did little to further his rehabilitation and instead primarily relied on obtaining pain control medications. Appellants outline appellee's medical records chronologically in an effort to show that appehee was, in essence, addicted to pain medication, and failed to complete the necessary therapy to rehabilitate himself. They rely on the fact that Dr. Frazier prescribed no pain medication when he released Jones to return to work; nor did Dr. Gabbie when he saw appellee in July. However, Dr. DeHaan noted that claimant had a legitimate reason for his continued pain and there is no indication in the medical records that his efforts to relieve pain with prescription medication was unreasonable or excessive. We note that the Commission is not required to believe the testimony of any witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Arnold v. Tyson Foods, Inc., 64 Ark. App. 245, 983 S.W.2d 444 (1998). Also, this argument lacks any citation to authority, and we will not consider the merits of an argument when an appellant fails to cite any convincing legal authority in support of that argument, and it is otherwise not apparent without further research that the argument is well taken. Matthews v. Jefferson Hosp. Assoc., 341 Ark. 5, 14 S.W.3d 482 (2000).\\nThird, appellants contend that after his surgery, appellee exhibited a lack of effort at rehabilitation and failed to follow the orders of his physician. Appellants recount the record of physical therapy sessions that appellee either canceled or did not complete as evidence of his lack of effort. Appellants also point to the fact that it was recommended that appellee undergo a home program and that there is no evidence that appellee even attempted the program. However, as the Commission correctly points out, \\\"there is no evidence that Jones tried to implement the home therapy, but there is likewise no evidence that claimant has not tried it either.\\\"\\nFinally, appellants argue that \\\"appellee's credibility is questionable and inconsistent.\\\" Appellants fail to recognize that questions of credibility and the weight and sufficiency to be given evidence are matters within the province of the Commission. Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 188, 975 S.W.2d 857 (1998). The Commission is not required to believe the testimony of the claimant or any other witness, but may accept and translate into findings of fact only those portions of the testimony it deems worthy of belief. Arnold v. Tyson Foods, Inc., 64 Ark. App. 245, 983 S.W.2d 444 (1998). Furthermore, it is weE established that it is within the Commission's province to weigh aE the medical evidence and to determine what is most credible. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). The Commission is entitled to review the basis for a doctor's opinion in deciding the weight and credibility of the opinion and medical evidence. Maverick Transp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000).\\nWe affirm.\"}"
\ No newline at end of file
diff --git a/arkansas/6141227.json b/arkansas/6141227.json
new file mode 100644
index 0000000000000000000000000000000000000000..375f495adbbac8cbc7a63a6dcc7a9997fc391a2f
--- /dev/null
+++ b/arkansas/6141227.json
@@ -0,0 +1 @@
+"{\"id\": \"6141227\", \"name\": \"Sue PATE, et al. v. PINEY SEWER IMPROVEMENT DISTRICT NO. 32, et. al.\", \"name_abbreviation\": \"Pate v. Piney Sewer Improvement District No. 32\", \"decision_date\": \"1985-06-20\", \"docket_number\": \"CA 85-167\", \"first_page\": \"235\", \"last_page\": \"235\", \"citations\": \"15 Ark. App. 235\", \"volume\": \"15\", \"reporter\": \"Arkansas Appellate Reports\", \"court\": \"Arkansas Court of Appeals\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T17:48:50.192589+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Sue PATE, et al. v. PINEY SEWER IMPROVEMENT DISTRICT NO. 32, et. al.\", \"head_matter\": \"Sue PATE, et al. v. PINEY SEWER IMPROVEMENT DISTRICT NO. 32, et. al.\\nCA 85-167\\n691 S.W.2d 882\\nCourt of Appeals of Arkansas\\nOpinion delivered June 20, 1985\", \"word_count\": \"64\", \"char_count\": \"364\", \"text\": \"Per Curiam.\\nSince both parties requested that this case be advanced in the public interest our opinion is delivered this date. We ar\\u00e9 also limiting the time for filing petition for rehearing to June 28, 1985.\"}"
\ No newline at end of file
diff --git a/arkansas/6142380.json b/arkansas/6142380.json
new file mode 100644
index 0000000000000000000000000000000000000000..ad6d701c990b420e713403a874bf745dbf2e40d3
--- /dev/null
+++ b/arkansas/6142380.json
@@ -0,0 +1 @@
+"{\"id\": \"6142380\", \"name\": \"Paul James PASCHAL v. Alice PASCHAL\", \"name_abbreviation\": \"Paschal v. Paschal\", \"decision_date\": \"2003-06-11\", \"docket_number\": \"CA 02-995\", \"first_page\": \"455\", \"last_page\": \"459\", \"citations\": \"82 Ark. App. 455\", \"volume\": \"82\", \"reporter\": \"Arkansas Appellate Reports\", \"court\": \"Arkansas Court of Appeals\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T02:36:03.779856+00:00\", \"provenance\": \"CAP\", \"judges\": \"Stroud, C.J., Hart, Robbins, Griffen, and Crabtree, JJ-, agree.\", \"parties\": \"Paul James PASCHAL v. Alice PASCHAL\", \"head_matter\": \"Paul James PASCHAL v. Alice PASCHAL\\nCA 02-995\\n117 S.W.3d 650\\nCourt of Appeals of Arkansas Divisions II and III\\nOpinion delivered June 11, 2003\\n[Substituted Opinion on Denial of Rehearing delivered September 17, 2003]\\nTaylor Law Firm, Scott Smith and John Mikesch, for appellant.\\nSexton Law Firm, by: Jane Watson Sexton, for appellee.\", \"word_count\": \"1187\", \"char_count\": \"7301\", \"text\": \"Karen R. Baker, Judge.\\nAppellant, Paul James Paschal, appeals a decision by the Washington County Circuit Court modifying the previous orders of the court regarding child support. Appellant has two arguments on appeal. First, he argues that the trial court erred in awarding appellee, Alice Paschal, retroactive child support. Second, appellant argues that the trial court erred in considering the bonus that he received in 2001 as income for the purpose of establishing his support obligation. We affirm.\\nThe facts of this case are as follows. The parties were divorced by a decree entered in the Washington County Circuit Court on September 17, 1996. Custody of the parties' two minor children was given to Ms. Paschal. The divorce decree provided that Mr. Paschal's child support would be set at $965 per month and one-half of his net annual bonus from the period of September 1996 to August 1997; $965 per month and twenty-two percent of his annual bonus received from the period of August 1997 to July 1999; and commencing August 1, 1999, Mr. Paschal's support obligation was to be modified based upon his current take-home pay in accordance with the Family Support Chart.\\nOn October 9, 2001, Ms. Paschal filed a petition for contempt alleging that Mr. Paschal had failed to pay the amount of support per the divorce decree. On May 21, 2002, Ms. Paschal amended her petition to add a request for modification of Mr. Paschal's support obligation due to an increase in his income. In an order entered on July 22, 2002, the trial judge granted Ms. Paschal's request to modify Mr. Paschal's support obligation and denied Ms. Paschal's motion for contempt, finding specifically that Mr. Paschal did not properly compute his support obligation due to his failure to include all of his income.\\nWe review child-support awards de novo on the record. Davie v. Office of Child Support Enforcement, 349 Ark. 187, 76 S.W.3d 873 (2002) (citing Nielsen v. Berger-Nielsen, 347 Ark. 996, 69 S.W.3d 414 (2002)). In de novo review cases, we will not reverse a finding of fact by the trial judge unless it is clearly erroneous. Id. (citing Norman v. Norman, 342 Ark. 493, 30 S.W.3d 83 (2000)). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. (citing Nielsen, supra). Further, we give due defer ence to the trial judge's superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Id.\\nThe amount of child support lies within the sound discretion of the trial judge, and the trial judge's 'finding will not be reversed absent an abuse of discretion. Ford v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002) (citing McWhorter v. McWhorter, 346 Ark. 475, 58 S.W.3d 840 (2001); Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000); Smith v. Smith, 337 Ark. 583, 990 S.W.2d 550 (1999)). The trial judge is required to refer to the child-support chart, and the amount specified in the chart is presumed to be reasonable. Id. (citing Smith v. Smith, supra).\\nMr. Paschal first argues that the trial court erred in awarding appellee, Alice Paschal, retroactive child support. However, the trial judge did not retroactively modify the child-support order. Rather, he clarified the original order by setting the sum certain amount of support. The trial judge correctly found the terms of the agreement were unambiguous in that the parties intended to set child support in accordance with the child-support chart, yet failed to set a sum certain amount of child support as required by Administrative Order No. 10.\\nThe testimony showed that on August 1, 1999, Mr. Paschal began making child-support payments in the amount of $1080 per month. The trial judge found that based on his income the amount of child support that Mr. Paschal should have paid was $1469 during the period of August 1, 1999, through August 1, 2000; $1234.66 during the period of August 2, 2000, through December 31, 2000; and $2520 during the year 2001. We find no error in the trial judge's clarification of the original child-support order.\\nAppellant's reliance upon the line of modification cases is misplaced. We agree that retroactive modification of a court-ordered child-support obligation may only be assessed from the time a petition for modification is filed. Yell v. Yell, 56 Ark. App. 176, 939 S.W.2d 860 (1997) (citing Ark. Code Ann. \\u00a7 9-14-234 (Supp. 1995); Grable v. Grable, 307 Ark. 410, 821 S.W.2d 21 (1991); Heflin v. Bell, 52 Ark. App. 201, 916 S.W.2d 769 (1996)). However, where a child-support order fails to recite the amount of support, the order has no sum certain that is capable of modifi cation. Thus, the trial judge did not retroactively modify the support order; rather, he calculated the correct amount of support based on Mr. Paschal's income, and set a sum certain amount of support, bringing the child-support order into compliance with Administrative Order No. 10.\\nThe trial judge also determined that Mr. Paschal's future monthly child-support payment should be $1,299 based on his current income. Mr. Paschal argues in his second point on appeal that the trial court erred in considering the bonus that he received in 2001 as income for the purpose of establishing his support obligation. He specifically asserts.that the bonus was a \\\"non-predictable salary bonus.\\\" For the calculation of child support, \\\"income\\\" is statutorily defined as:\\n(4) (A) \\\"Income\\\" means any periodic form of payment due to an individual, regardless of the source, including wages, salaries, commissions, bonuses, workers' compensation, disability, payments pursuant to a pension or retirement program, and interest.\\n(B) The definition of \\\"income\\\" may be expanded by the Arkansas Supreme Court from time to time in the Guidelines for Child Support Enforcement, \\u00a7 9-99-901.\\nArk. Code Ann. \\u00a7 9-14-201(4) (Supp. 2001). In Administrative Order No. 10, the Arkansas Supreme Court expanded the definition of \\\"income\\\" as follows: \\\"Income means any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, worker's compensation, disability, payments pursuant to a pension or retirement program, and interest. .\\\" In re: Administrative Order Number 10: Arkansas Child Support Guidelines \\u00a7 II, 331 Ark. 581 (1998) (emphasis added). The definition is intentionally broad to encompass the widest range of sources consistent with this State's policy to interpret \\\"income\\\" broadly for the benefit of the child. Ford, supra. Hence, we find that the $100,000 bonus that Mr. Paschal received in 2001 clearly falls within the definition of income, and the trial court properly considered the 2001 bonus in determining Mr. Paschal's child-support obligation. Based on the foregoing, we affirm.\\nStroud, C.J., Hart, Robbins, Griffen, and Crabtree, JJ-, agree.\"}"
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+"{\"id\": \"6835821\", \"name\": \"Steven PINDER, Petitioner, v. STATE of Arkansas, Respondent\", \"name_abbreviation\": \"Pinder v. State\", \"decision_date\": \"2015-11-12\", \"docket_number\": \"No. CR-02-1289\", \"first_page\": \"490\", \"last_page\": \"493\", \"citations\": \"474 S.W.3d 490\", \"volume\": \"474\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T01:39:45.075616+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Steven PINDER, Petitioner, v. STATE of Arkansas, Respondent.\", \"head_matter\": \"Steven PINDER, Petitioner, v. STATE of Arkansas, Respondent.\\nNo. CR-02-1289\\nSupreme Court of Arkansas.\\nOpinion Delivered November 12, 2015\", \"word_count\": \"1426\", \"char_count\": \"8468\", \"text\": \"PRO SE SECOND PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS [COLUMBIA COUNTY CIRCUIT COURT, NO. 14CR-02-30]\\nPER CURIAM\\nhln 2002, petitioner Steven Pinder was found guilty by a jury of two counts of rape and sentenced to life imprisonment. We affirmed. Pinder v. State, 357 Ark. 275, 166 S.W.3d 49 (2004). We subsequently affirmed the trial court's denial of Pinder's petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2002). Pinder v. State, CR-07-710, 2008 WL 2132816 (Ark. May 22, 2008) (unpublished per curiam).\\nIn 2011, Pinder filed in this court a pro se petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis in the case. In the petition, he alleged that the State withheld evidence from the defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Part of the evidence alleged to have been withheld was a pretrial medical report written by Dr. Jerry Jones in which Dr. Jones reported that the victim \\\"did retain her hymen.\\\" We rejected the claim because Pinder admitted to having known of the medical report for over seven years when he filed his petition in this court and he offered no explanation of the lengthy delay in bringing his claim. Thus, he failed to exercise the due diligence that is required in labringing coram-nobis allegations. Pinder v. State, 2011 Ark. 401, at 3, 2011 WL 4492362 (per curiam).\\nPinder sought reconsideration, and we noted that, even if he had been diligent with respect to the claim, the medical report indicated that sexual abuse was suspected, that there were physical findings that were suspicious or \\\"suggestive of sexual abuse,\\\" and that the results of the physical exam were consistent with the victim's description of what Pinder had done to her. Pinder v. State, 2012 Ark. 45, at 4-5, 2012 WL 310959 (per curiam). Accordingly, a medical report that supported the ultimate conclusion of the jury would not have prevented rendition of the judgment against Pinder had it been introduced into evidence, and it would not warrant coram-nobis relief. Id. at 5 (citing Sanders v. State, 374 Ark. 70, 285 S.W.3d 630 (2008) (per curiam)).\\nNow before us is Pinder's second petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis filed on September 1, 2015. The petition for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. A writ of errbr coram nobis is 'an extraordinarily rare femedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000). Coramnobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Westerman v. State, 2015 Ark. 69, at 4, 456 S.W.3d 374, 376; Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.\\nThe function of the vkrit is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before 1 ^rendition of the judgment. Neuman, 2009 Ark. 539, 354 S.W.3d 61. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Roberts, 2013 Ark. 56, 425 S.W.3d 771.\\nThe writ is allowed' only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Id. A writ of error coram nobis is available for addressing certain errors that are found in one of four categories: (1) insanity at the time of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a third-party confession to the crime during the time between conviction and appeal. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38.\\nAs grounds for a writ of error coram nobis,- Pinder contends that Dr. Ivy McGee-Reed, a doctor who testified for the State, gave false testimony that was \\\"determinative\\\" of the finding of guilt in his case.- He contends that the State-was aware that Dr. McGee-Reed's testimony was false and misleading-and that his-right to due process of law under the Fourteenth Amendment was denied by his being convicted on the false testimony.\\nDr. McGee-Reed's testimony at issue ,was that the victim, did not have a hymen and that her body showed indications of repeated sexual activity over a period, of years. Because this testimony differed from Dr. Jones's report that the victim had a hymen and because Pinder alleges that Dr. McGee-Reed had reviewed that report,-Pinder asserts that Dr. McGee-Reed knew her testimony was untrue. In addition, Pinder claims that he has newly discovered evidence obtained in 2015 that the doctor was also untruthful when she said that she had obtained her license to practice medicine in 1997 when, in fact, it had not been issued until 1999.\\n1 \\u00bfPinder has not stated a ground for the writ. First, any claim that Pinder desired to raise to this court concerning Dr. Jones's report and testimony from another witness at trial that disagreed with that report could have been raised in his first coram-nobis petition. In the first petition, the report was raised as a Brady violation.' In the instant petition, the report is again raised, but it is couched in terms of the State having committed misconduct by calling a witness whose testimony did not agree with a finding in the report. As stated, this court has already held that Pinder was not diligent in bringing allegations pertaining to the report. Pinder's attempt to raise the report again by linking it to an assertion of prosecutorial misconduct does not change this court's ruling concerning his diligence.\\nFurthermore, even if Pinder had not mentioned Dr. Jones's' report in his allegation that Dr. McGee-Reed's testimony was false, he would not have stated a ground for the writ. He has offered no proof that the State knowingly utilized false testimony, and we have held that a petitioner's allegation that the a witness gave false testimony at trial does not give rise to a showing of fundamental error that requires issuance of the writ. Smith v. State, 200 Ark. 767, 140 S.W.2d-675 (1940) (holding that the writ was not available to afford relief on the. ground that -the principal witness against the accused had recanted and that others since the accused's conviction had confessed to the crime); see also White v. State, 2014 Ark. 348, 438 S.W.3d 916; Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990) (A witness's recantation of part of his trial testimony was not a ground for the writ, as recantation of testimony did not fit within the remedy.)\\nTo the extent that Pinder's assertions concerning the allegedly false testimony could be considered a claim that the evidence was insufficient to sustain the judgment, issues concerning 15the sufficiency of the evidence or the credibility of witnesses are not cognizable in coram-no-bis proceedings. McArthur v. State, 2014 Ark. 367, at 7, 439 S.W.3d 681, 685, cert. denied, \\u2014 U.S.-, 135 S.Ct. 1432, 191 L.Ed.2d 391 (2015).\\nWith respect to Pinder's allegation that he has newly discovered evidence that Dr. McGee-Reed misstated the date that she had acquired a license to practice medicine, we have held that a writ of error coram nobis cannot be granted on the basis of newly discovered evidence alone. Smith v. State, 301 Ark. 374, 375, 784 S.W.2d 595, 596 (1990). There is a distinction, between fundamental error, which requires .issuance of the writ, and newly dis-. covered information, which might have created an issue to be raised at trial had it been known. Hooper v. State, 2015, Ark, 108, at 6-7, 458 S.W.3d 229, 233 (per curiam). Even if, as Pinder alleges, the date the license was issued was misstated, Pin-der has not shown that the, misstatement created^ a significant issue; that is, he has not shown that the information would have called into question the outcome of the trial. Without this showing, Pinder has fallen short of establishing a ground to issue a writ of error coram nobis. Hooper, 2015 Ark. 108, at 7, 458 S.W.3d at 233-34.\\nPetition denied.\"}"
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+"{\"id\": \"6851166\", \"name\": \"Aaron Keith HUGHES, Appellant v. STATE of Arkansas, Appellee\", \"name_abbreviation\": \"Hughes v. State\", \"decision_date\": \"2015-06-17\", \"docket_number\": \"No. CR-14-1103\", \"first_page\": \"170\", \"last_page\": \"176\", \"citations\": \"467 S.W.3d 170\", \"volume\": \"467\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Arkansas Court of Appeals\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T20:31:03.910917+00:00\", \"provenance\": \"CAP\", \"judges\": \"Gladwin, C.J., and Brown, J., agree.\", \"parties\": \"Aaron Keith HUGHES, Appellant v. STATE of Arkansas, Appellee\", \"head_matter\": \"2015 Ark. App. 378\\nAaron Keith HUGHES, Appellant v. STATE of Arkansas, Appellee\\nNo. CR-14-1103\\nCourt of Appeals of Arkansas, DIVISION IV.\\nOpinion Delivered June 17, 2015\\nGregory Crain, Malvern, for appellant.\\nNo response.\", \"word_count\": \"2389\", \"char_count\": \"14189\", \"text\": \"BART F. VIRDEN, Judge\\nhOn May 27, 2014, a Hot Spring County Circuit Court jury found Aaron Keith Hughes guilty of second-degree domestic battery. He was sentenced to six years in the Arkansas Department of Correction and was ordered to pay restitution in the amount of $752.85. A judgment was filed on May 30,, 2014, and a timely notice of appeal followed.\\nHughes's attorney has filed a motion to be relieved as counsel and a no-merit brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Ark. Sup. Ct. R. 4-3(k) (2010), in which counsel asserts that there is no issue of arguable merit to support an appeal. Counsel provided his client with a copy of the motion and brief. Hughes did not file any pro se points for reversal, and the State elected not to file a brief with our court.\\nFacts\\n[2On May 25, 2014, immediately before the trial was set to begin, the circuit court held a hearing to address Hughes's request for a continuance. Hughes asserted that because he had conditionally retained counsel of his choice, Shane Ethridge, to replace his appointed attorney, Gregory Crain, he should be granted a continuance so that Ethridge could defend him on the charge brought against him. Hughes stated that he could pay Ethridge $1500 if the continuance was granted but that Eth-ridge had not been officially retained at that time. Previously, Hughes had sworn an affidavit that he was indigent. The court denied Hughes's request.\\nThe trial took place immediately after the hearing. At the trial, the victim, Kyra Zatarain, described the events of the eve ning of June 16, 2018. Zatarain testified that after vacationing together in California, she and Hughes had arrived home, and she was cooking dinner when Hughes's cousin became ill in the bathroom. When Zatarain tried bo assist Hughes's cousin, Hughes refused to allow Zatarain to help and then became very angry. She testified that he pushed her up against the bathroom wall and choked her. Zatarain testified that later that evening, as the argument continued outside in the carport, he choked her again and then threw her against fence. She testified that she lost consciousness at some point in .the evening. She stated that when she went to the doctor the next day, she was immediately transported to an orthopedic surgeon. She testified that her shoulder was injured so badly that it required surgery where four inches of bone was removed and that she also had a broken |sarm. Zatarain testified that she also suffered cuts, bruises and damage to her esophagus from Hughes strangling her and that she had permanent scars. At the time of trial, Zatarain was still in physical therapy. She testified that she could not work because of her injuries, and she no longer was able to play ball with her sons or participate in other normal activities. She testified that she had not been able to drive for six months after the incident. Zatarain testified that she also suffered emotional trauma and was in therapy for that as well.\\nZatarain's son, seventeen-year-old Dakota Wilkinson, also testified. He stated that he saw Hughes choke his mom after she tried to help Hughes's cousin, and then later heard his mother and Hughes arguing. Wilkinson testified that he heard a loud banging noise, and when he went into his mom's bedroom' to check on her, the dresser was broken and his mother was lying on the floor. He testified that when he reached his mother's room, Hughes walked away. He testified that his mother and Hughes argued again outside in the carport, and while he was watching through the kitchen window, he saw his mother's body hit.the a fence. He testified that he ran outside to help her, asked Hughes to leave their home, and then put his mom in her bed. Wilkinson testified that shortly thereafter, his mother got out of bed to talk to Hughes and that Hughes threatened them with violence if they sought help. Wilkinson testified that Hughes then began to pack up his belongings, which took between thirty and forty minutes. Wilkinson testified that he went back inside, and Zatarain and Hughes were outside talking. He testified that was when he heard a gunshot and went outside to check on them again. Wilkinson testified that Hughes said the gun had accidentally gone off, and that he convinced Hughes it was time to leave because the police would probably be |4there soon to investigate. Wilkinson testified that Hughes left at that time.\\nAshlee Brown, a former coworker of Zatarain's and former classmate of Hughes's, testified that during a conversation earlier that year Hughes recounted to her that he had thrown a woman into a fence after they had gotten into an argument.\\nAt the end of the State's presentation of evidence, and then again at the end of all of the evidence, counsel for Hughes made a three-part motion for a directed verdict, challenging the sufficiency of the evidence that Hughes caused Zatarain's injury, that the injury was serious, and that the he and Zatarain were in a dating relationship and cohabitating. The motions were denied.\\nStandard of Review and Applicable Law\\nA request to withdraw on the ground that the appeal is wholly without merit shall be accompanied by a brief in- eluding an abstract and addendum. Ark. Sup. Ct. R. 4 \\u2014 8(k)(l). The brief shall contain an argument section that consists of a list of all rulings adverse to the defendant made by the circuit court on all objections, motions and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. Id.; see also Eads v. State, 74 Ark. App. 368, 47 S.W.3d 918 (2001). This framework ensures that indigents are afforded their constitutional rights. Campbell v. State, 74 Ark. App. 277, 279, 47 S.W.3d 915, 917 (2001). In furtherance of the goal of protecting these constitutional rights, it is the duty of both counsel and of this court to perform a full examination of the proceedings as a whole to decide if an appeal would be wholly frivolous. See id.\\n| sContinuance and New Counsel\\nThe first adverse ruling concerned Hughes's request for a continuance in order to retain different counsel. Whether to grant or deny a motion for continuance is within the sound discretion of the trial court, and we will not reverse the court's decision absent an abuse of discretion amounting to a denial of justice. Anthony v. State, 339 Ark. 20, 22, 2 S.W.3d 780, 781 (1999). Additionally, appellant must show that he suffered prejudice as a result of the denial of the motion: \\\"To prevail in arguing for reversal on denial of a motion for a continuance, a criminal defendant must show prejudice that amounts to a denial of justice.\\\" White v. State, 370 Ark. 284, 292, 259 S.W.3d 410, 416 (2007).\\nOur supreme court has repeatedly held that a motion to change counsel is properly treated as a motion for continuance since a change of attorneys so close to trial would require the granting of one. Leggins v. State, 271 Ark. 616, 609 S.W.2d 76 (1980). The refusal to grant a continuance in order for the defendant to change attorneys rests within the discretion of the trial judge, and the decision will not be overturned absent a showing of abuse, Cooper v. State, 317 Ark. 485, 879 S.W.2d 405 (1994). The burden of establishing such abuse rests squarely on the shoulders of the appellant. Leggins, supra; Edwards v. State, 321 Ark. 610, 615, 906 S.W.2d 310, 313 (1995).\\nThe circuit court found that not only had Ethridge not yet been retained as counsel, the only evidence concerning Hughes's ability to pay Ethridge was Hughes's affidavit of indigency filed on February 25, 2014, which heavily implied that Hughes was unable to pay an attorney. The circuit court also noted that the request was made very late. It was the day | fiof trial, that the jury had been called, and they were ready to proceed. Furthermore, Hughes presented no evidence that he suffered prejudice resulting from the circuit court denying his request for a continuance.\\nCounsel's brief adequately explains why this adverse ruling does not constitute a meritorious ground for reversal.\\nSufficiency of the Evidence\\nThe second adverse ruling, a three-part motion for a directed verdict, concerned three elements of Hughes's second-degree domestic battery charge: that Hughes had intent to cause injury, that the injury was serious and that there was a familial relationship between himself and Zatarain. After a careful review of the abstract, addendum and record, we conclude that any argument related to the sufficiency of the evidence would not form a meritorious basis for appellate review, and we affirm.\\nA motion for a directed verdict or dismissal is a challenge to the sufficiency of the evidence, Green v. State, 79 Ark. App. 297, 87 S.W.3d 814 (2002). When reviewing a denial of a directed verdict, we look at the evidence in the light most favorable to the State. Darrough v. State, 330 Ark. 808, 810, 957 S.W.2d 707, 708 (1997). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Killian v. State, 60 Ark. App. 127, 959 S.W.2d 432 (1998). Evidence is substantial when it is forceful enough to compel a conclusion and goes beyond mere speculation or conjecture. Britt v. State, 334 Ark. 142, 974, S.W.2d 436 (1998).\\n| ^Intent to Cause the Injury\\nThe first element of the circuit court's denial of the directed verdict concerns the statutory requirement that Hughes had intent to cause physical injury. Arkansas Code Annotated section 5-26-304(a)(l) (Repl. 2006) provides that a person commits domestic battery in the second degree if, with the purpose of causing physical injury to a family or household member the person causes serious injury to that person. Intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Taylor v. State, 77 Ark. App. 144, 72 S.W.3d 882 (2002). A presumption exists that a person intends the natural and probable consequence of his acts. Bell v. State, 99 Ark. App. 300, 306, 259 S.W.3d 472, 476 (2007). A person acts purposely with respect to his or her conduct or a result of his or her conduct when it is the person's conscious object to engage in conduct of that nature or to cause the result. Ark. Code Ann. \\u00a7 5-2-202(1) (Repl. 2006).\\nThe testimony presented at the trial was sufficient to show Hughes's intent to cause injury. Zatarain testified she was thrown, choked, and hit by Hughes. Wilkinson also testified that he saw his mother hitting the fence, and that he witnessed Hughes holding his mother against the bathroom wall and again later against the brick wall with his hands around her neck. Ashlee Brown testified that Hughes told her that he threw a woman into a fence after arguing. Counsel's brief adequately explains why this is not a meritorious ground for relief.\\nSeriousness of the Injury\\nThe second aspect of the circuit court's denial of the directed verdict concerns the | ^statute's requirement that Za-tarain's injuries be serious. Serious physical injury is defined as physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ. Ark.Code Ann. \\u00a7 5-1-102(21) (Repl. 2006). Expert medical testimony is not required to prove serious physical injury, as the finder of fact may use its common knowledge to determine whether such injury occurred. Johnson v. State, 26 Ark. App. 286, 764 S.W.2d 621 (1989). Similarly, it is not necessary that the impairment be permanent, but merely protracted. See Britt v. State, 83 Ark. App. 117, 118 S.W.3d 140 (2003); Bell v. State, 99 Ark. App. 300, 305, 259 S.W.3d 472, 475 (2007).\\nZatarain was admitted to the hospital and had to have surgery resulting from her injuries. At the time of trial, nearly a year after the night in question, she testified that she was still in physical therapy because of the injuries she sustained and had not yet been able to resume her normal life. Medical bills amounting to more than $12,000 and photographs that confirm the seriousness of the injuries were admitted into evidence.\\nFamily or Household Member\\nThe third aspect of the circuit court's denial of the directed verdict concerns the requirement of the statute that there must be a familial relationship. Again, we find no meritorious ground.\\nIn Arkansas Code Annotated section 5-26-302(2)(F) (Repl. 2006), the term \\\"family or household member\\\" is defined as persons who presently |aor in the past have resided or cohabited together. \\\"Family or household member\\\" also includes \\\"Persons who are presently or in the past have been in a dating relationship together.\\\" Ark. Code Ann. \\u00a7 5-26-302(2)(H). The definition of \\\"dating relationship\\\" is \\\"a romantic or intimate social relationship between two (2) individuals that is determined by examining the following factors: (i) The length of the relationship; (ii) The type of the relationship .\\\" Ark. Code Ann. \\u00a7 5-26-302(l)(A)(O and (ii).\\nSubstantial evidence supports the trial court's denial of the directed verdict motion. The fact that the parties dated for two-arid-a-half weeks was uncontro-verted. There was also testimony from Zatarain's son that it took time and effort to pack up all of Hughes's things from them home, heavily implying that he had at least partially moved in.\\nAfter a full examination of the record under the proper standards, we hold that counsel provided a compliant \\\"no merit\\\" brief demonstrating that an appeal would be wholly without merit, and further, that counsel's motion to be relieved should be granted.\\nAffirmed; motion to withdraw granted.\\nGladwin, C.J., and Brown, J., agree.\\n. Ethridge could not be present at the hearing on that day, but Hughes asserted Ethridge would represent Hughes if a continuance was granted.\"}"
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+"{\"id\": \"6900992\", \"name\": \"VALLEY ESTATES, LIMITED PARTNERSHIP, Appellant v. R.M. PANGLE and Lois K. Pangle, Appellees\", \"name_abbreviation\": \"Valley Estates, Ltd. Partnership v. Pangle\", \"decision_date\": \"2014-11-12\", \"docket_number\": \"No. CV-14-333\", \"first_page\": \"235\", \"last_page\": \"240\", \"citations\": \"448 S.W.3d 235\", \"volume\": \"448\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Arkansas Court of Appeals\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T01:38:22.177785+00:00\", \"provenance\": \"CAP\", \"judges\": \"Whiteaker and Brown, JJ., agree.\", \"parties\": \"VALLEY ESTATES, LIMITED PARTNERSHIP, Appellant v. R.M. PANGLE and Lois K. Pangle, Appellees.\", \"head_matter\": \"2014 Ark. App. 646\\nVALLEY ESTATES, LIMITED PARTNERSHIP, Appellant v. R.M. PANGLE and Lois K. Pangle, Appellees.\\nNo. CV-14-333.\\nCourt of Appeals of Arkansas.\\nNov. 12, 2014.\\nMitchell, Williams, Selig, Gates & Wood-yard, P.L.L.C., Little Rock, by: Alex T. Gray and Brian \\u00c1. Pipkin, for appellant.\\nCooper & Bayless, Mountain Home, by: Paul Bayless, for appellees.\", \"word_count\": \"2127\", \"char_count\": \"13019\", \"text\": \"KENNETH S. HIXSON, Judge.\\n| |This case involves the construction of an apartment complex that caused drainage damage to a homeowner's adjacent property. The appellees are R.M. Pangle and Lois K. Pangle, who have lived in their house in Mountain Home since 1974. The appellant is Valley Estates, Limited Partnership. Valley Estates completed construction of the apartments at issue in late 2007. Valley Estates appeals from a judgment in favor of the Pangles, wherein the trial court found that Valley Estates created a nuisance and. awarded the' Pangles $7087.50 in compensatory damages and $10,000 in punitive damages. Valley Estates' primary argument on appeal is that the Pangles' action was barred by the applicable statute of limitations. We agree, and we reverse and dismiss.\\nThe Pangles initiated this case on June 4, 2012, when they filed a complaint against Valley Estates of Mountain Home Phase II, Limited Partnership, alleging that the ^construction of the apartment complex caused drainage damage to the Pangles' adjacent property. The Pangles amended their complaint on August 21, 2012, substituting Valley Estates, Limited Partnership as the proper defendant. The Pangles filed a second amended complaint on March 5, 2013, asserting that the con struction of the apartment created a nuisance and changed the slope of the terrain, resulting in damage to the Pangles' gravel driveway \\\"every time it rains.\\\" The Pan-gles claimed that their driveway had been damaged more than eighty-seven times since June 2009 by rainfalls of one-half inch or more, and that every time the driveway was damaged the Pangles were forced to repair the driveway at their own expense.\\nIn defending against the Pangles' lawsuit, Valley Estates asserted that the Pan-gles' claims were barred by the three-year statute of limitations. Valley Estates argued that the Pangles were asserting a permanent nuisance, as opposed to a temporary nuisance, and that the Pangles' cause of action arose upon completion of the construction project in late 2007. Because the Pangles filed their original complaint more than three years later on June 4, 2012, Valley Estates contended that the action was time-barred.\\nMr. Pangle testified at the bench trial. He stated that on three occasions during construction of the apartment complex he spoke with supervisors of Valley Estates expressing his concerns about the change in the slope of the terrain. According to Mr. Pangle, the supervisors promised that they would fix the slope but it never happened. Mr. Pangle also stated that, when the apartments were built, Valley Estates installed twenty-one downspouts that drain onto his driveway. Mr. Pangle testified that the project engineer for Valley Estates l-jhad promised to take measures to alleviate the drainage problem, but that Valley Estates made no attempt to divert the water.\\nMr. Pangle testified that any time it rained any amount, the water would flow from the apartments and wash out his driveway. Mr. Pkngle stated that each time his driveway was damaged, he would repair it by rebuilding and grading it with his tractor. Mr. Pangle stated that the drainage issues were probably the worst thing that had ever happened to him, and that the damage occurred with such frequency that his quality of life was adversely affected from losing sleep. He said that he had to repair his driveway just a week before trial.\\nBen Strider, an engineer, visually inspected the parties' properties. Mr. Strider testified that the apartment construction plans were not completed properly because there was no ditch behind one of the buildings to prevent water from flowing onto the Pangles' land. Mr. Strider further stated that the drainage problems were exacerbated by downspouts off of the back of the apartment buildings, which are aimed at the Pangles' property without the benefit of an underground drain. Mr. Strider stated that, as a result of these construction issues, damaging water flowed onto the Pangles' driveway.\\nIn the trial court's judgment awarding compensatory and punitive damages to the Pangles, it found that the drainage issues caused by the apartment construction resulted in damage to the Pangles' properly only at certain times, dependent on the rainfall. The trial court concluded that the statute of limitations began to run from the happening of each injury complained of and that there may be as many successive recoveries as there are successive injuries. The trial court found that the Pangles proved that the water drainage from Valley. 14Estates' property was a nuisance from which they had been damaged, and the trial court based its compensatory award on the aggregate repair costs incurred by the Pangles over the three years preceding the filing of their lawsuit. The trial court also awarded the Pangles $10,000 in punitive damages against Valley Estates.\\nIn this appeal, Valley Estates argues that the trial court erred in finding that the negligently constructed apartment complex constituted a temporary nuisance, as opposed to a permanent nuisance. The question of whether a nuisance is permanent or temporary is a question of law. See McAllister v. St. Louis, I.M. & S. Ry. Co., 107 Ark. 65, 154 S.W. 186 (1913). The appellate court gives no deference to conclusions of law, which are reviewed de novo. Aceva Techs., LLC v. Tyson Foods, Inc., 2013 Ark. App. 495, 429 S.W.3d 355. The statute of limitations for a nuisance claim is three years, see Jones v. Sewer Improvement District No. 3 of City of Rogers, 119 Ark. 166, 177 S.W. 888 (1915), and Valley Estates argues that because a permanent nuisance was created when the apartment complex was completed in 2007, the three-year limitations period expired prior to the filing of the Pangles' complaint.\\nThe pivotal issue in this case is whether the nuisance created by Valley Estates was permanent, in which case the limitations period expired, or temporary, in which case the Pangles have a right to successive actions for each injury and are not barred from recovery by the statute of limitations. We hold, as a matter of law, that the nuisance complained of is permanent and therefore that the Pangles' action was barred by the statute of limitations.\\nUnder Arkansas law, the general policy for a nuisance claim is to avoid multiplicity of actions and, if practical, to afford compensation in one action for all injuries. Int'l Shoe Co. v. Gibbs, 183 Ark. 512, 36 S.W.2d 961 (1931). When a nuisance is of a permanent character, and its construction and continuance are necessarily an injury, the damage is original and may be at once fully compensated, and the statute of limitations begins to run upon the construction of the nuisance. Turner v. Overton, 86 Ark. 406, 111 S.W. 270 (1908). Where the cause of injury is a permanent nuisance, as where permanent structures are erected infringing on the plaintiffs rights to his land, such as railroad embankments,' culverts, bridges, and dams, a single action should be brought for the entire damages, both past and prospective, which will bar a subsequent action. Missouri Pac. R.R. Co. v. Neal, 212 Ark. 866, 208 S.W.2d 176 (1948). A permanent nuisance is one that will continue without change from any cause except human labor. See Kelly v. Kansas City S. Ry. Co., 92 Ark. 465, 123 S.W. 664 (1909). Where a nuisance causes a permanent injury to property, the measure of damages will be the depreciation in the value of the property; that is, the difference between its value before and after the injury. Czarnecki v. Bolen-Darnall Coal Co., 91 Ark. 58, 120 S.W. 376 (1909).\\nA temporary nuisance, on the other hand, has been defined as a temporary interference with the use and enjoyment of property. See Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 404 A.2d 889 (1978). Examples of a temporary nuisance include yelping dogs, misdirected golf balls, or offensive odors. Howard W. Brill, Arkansas Law of Damages \\u00a7 28:4 (5th ed.2004). Our supreme court has held that when a structure is permanent in its character, and its construction and continuance are not necessarily injurious, but may or may not be so, the injury to be compensated in a suit is only the damage that has happened, and there be as many successive recoveries as there are successive injuries; in such case the statute of limitations | ^begins to run from the happening of the injury complained of. St. Louis, Iron Mountain & S. Ry. Co. v. Biggs, 52 Ark. 240, 12 S.W. 331 (1889). If an injury is not a permanent one but 6nly temporary or removable, the measure of damages has been held to be the depreciation in the rental value of the property during the time of its maintenance or up to the time of trial. Czamecki, supra.\\nIn the case at bar the nuisance created by the construction of the apartment complex created a permanent nuisance, i.e., a nuisance that may be expected to continue. See O'Brien v. City of O'Fallon, 80 Ill.App.3d 841, 36 Ill.Dec. 36, 400 N.E.2d 456 (1980). Mr. Pangle testified that he knew during construction that the construction was going to cause drainage issues to his property, and the construction itself caused inevitable and certain injury to the Pangles. In the Pangles' complaint they alleged that their property was damaged every time it rained and that damage had occurred more than eighty-seven times in less than three years. It is clear that the nuisance is permanent in that it will continue to cause drainage damage to the Pangles' driveway.\\nIn Missouri Pacific Railroad Co., supra, it was alleged that the appellant railroad company had negligently constructed a roadbed with insufficient openings and drains. This resulted in an overflow of flood waters in 1943 and again in 1945 that caused damage to the appellees' adjoining property and the destruction of growing crops. The appellees attempted to sustain separate claims for damages from the 1943 and 1945 incidents. However, the supreme court held that the injury caused by the railroad's negligence in failing to provide sufficient openings and drains at once caused a permanent nuisance damaging the appellees' property, and that |7the recovery for damages was limited to a single action as opposed to successive actions for a recurring damage from the same cause. The supreme court quoted from the following excerpt in 15 Am.Jur. Damages \\u00a7 25:\\nIf an injury to realty is permanent in character, all the damages caused thereby, whether past, present, or prospective, may be recovered in a single action. Moreover, recovery of all such damages must be in a single action, under the rule which prohibits splitting causes of action. The damages so recovered are called \\\"permanent or original damages.\\\" They are given on the theory that the cause of injury is fixed and that the property must always remain subject to such injury and for the purpose of preventing a multiplicity of suits and putting an end to litigation.\\nSimilar to the permanent drainage issues caused by the railroad's roadbed construction in Missouri Pacific Railroad Co., Valley Estates' apartment construction caused a permanent nuisance to the Pangles' property in the case at bar. See also Turner, supra (construction of a ditch accelerating water flow and resulting in twelve overflows in a year is a permanent nuisance).\\nIn arguing that only a temporary nuisance was created, the Pangles rely on Jones v. Sewer Improvement District No. 3 of City of Rogers, 119 Ark. 166, 177 S.W. 888 (1915). That case involved a nuisance caused by the discharge of sewage onto the plaintiffs' land. However, that ease is distinguishable because there it was not the permanent construction of the sewers that created the nuisance; rather, it was the faulty operation and maintenance of the sewer. In the present case, the faulty construction of the apartment complex caused a permanent nuisance with no further conduct required by Valley Estates. Because the permanent nuisance arose and was immediately actionable when the apartments were | scompleted in 2007, and the Pangles' complaint was filed more than three years later in June 2012, the Pan-gles' lawsuit was barred by the statute of limitations.\\nValley Estates also argues that the trial court erred in awarding punitive damages to the Pangles. Valley Estates is correct. In the absence of an award of damages for the underlying cause of action, punitive damages are improper. Bell v. McManus, 294 Ark. 275, 742 S.W.2d 559 (1988). Because the Pangles' action was time-barred and the trial court thus erred in awarding compensatory damages, its award of punitive damages must be versed as well.\\nReversed and dismissed.\\nWhiteaker and Brown, JJ., agree.\"}"
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+"{\"id\": \"6910034\", \"name\": \"Alonzo WATSON, Appellant. v. STATE of Arkansas, Appellee\", \"name_abbreviation\": \"Watson v. State\", \"decision_date\": \"2014-05-08\", \"docket_number\": \"No. CR-13-668\", \"first_page\": \"835\", \"last_page\": \"843\", \"citations\": \"444 S.W.3d 835\", \"volume\": \"444\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T01:11:52.785088+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Alonzo WATSON, Appellant. v. STATE of Arkansas, Appellee.\", \"head_matter\": \"2014 Ark. 203\\nAlonzo WATSON, Appellant. v. STATE of Arkansas, Appellee.\\nNo. CR-13-668.\\nSupreme Court of Arkansas.\\nMay 8, 2014.\\nCraig Lambert, Little Rock, for appellant.\\nDustin McDaniel, Att\\u2019y Gen., by: David R. Raupp, Sr. Ass\\u2019t Att\\u2019y Gen., for appel-lee.\", \"word_count\": \"3447\", \"char_count\": \"21327\", \"text\": \"COURTNEY HUDSON GOODSON, Justice.\\n| jAppellant Alonzo Watson appeals the order entered by the Pulaski County Circuit Court denying his petition for postcon-viction relief that he brought pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure. For reversal, Watson contends that the circuit court erred in ruling that he did not receive ineffective assistance of counsel at trial and on appeal. We affirm the circuit court's decision.\\nThe record reflects that the prosecuting attorney in Pulaski County charged Watson with capital murder in connection with the death of Daniel Harris, whose body was found in a deserted area near a warehouse in Jacksonville on the morning of September 3, 2010. The evidence at trial disclosed that Harris died of blunt-force trauma to the head after having been struck multiple times with a piece of concrete. Watson was the last known person seen with Harris prior to his demise. In the early-morning hours of September 3, Watson encountered a number of persons and confessed to four of them that he had killed someone. 12One of those persons was Sara Whipple, Watson's girlfriend, who testified that Watson appeared at her home at approximately 3:00 a.m. and that Watson had scratches on his body and blood on his clothing. Another was Marcus Hildreth who, in addition to seeing Watson on the morning of the murder, was later incarcerated with Watson after Watson's arrest for Harris's murder. Hildreth testified that Watson told him during their incarceration that \\\"there had been a fight\\\" and that he had struck Harris with a rock. A jury in Pulaski County found Watson guilty of capital murder. The prosecutor had waived the death penalty; therefore, the conviction resulted in a sentence of life imprisonment without parole. Watson appealed his conviction and sentence, and this court affirmed on the sole issue that the circuit court did not err in denying Watson's motion to suppress a statement that he had given to the police. Watson v. State, 2012 Ark. 430, 2012 WL 5586015.\\nOn January 16, 2013, Watson filed a timely petition for postconviction relief in which he asserted that he had received ineffective assistance of counsel at trial and on direct appeal. By an order dated April 22, 2013, the circuit court denied the petition without a hearing. This appeal followed.\\nAt the outset, we note that this court does not reverse the denial of post-conviction relief unless the circuit court's findings are clearly erroneous. Conley v. State, 2014 Ark. 172, 433 S.W.3d 234. A finding is clearly erroneous when, although there is evidence to support it, after reviewing the entire evidence, we are left with the definite and firm conviction that a mistake has been committed. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. In making a determination on a claim of ineffective assistance of counsel, this court considers the totality |3of the evidence. State v. Harrison, 2012 Ark. 198, 404 S.W.3d 830.\\nOur standard of review also requires that we assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Springs v. State, 2012 Ark. 87, 387 S.W.3d 143. In asserting ineffective assistance of counsel under Strickland, the petitioner first must demonstrate that counsel's performance was deficient. Williams v. State, 2011 Ark. 489, 385 S.W.3d 228. This requires a showing that counsel made errors so serious that counsel was not functioning as the \\\"counsel\\\" guaranteed the petitioner by the Sixth Amendment. Adams v. State, 2013 Ark. 174, 427 S.W.3d 63. The reviewing court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Scott v. State, 2012 Ark. 199, 406 S.W.3d 1. The defendant claiming ineffective assistance of counsel has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55.\\nSecond, the petitioner must show that the deficient performance prejudiced the defense, which requires a demonstration that counsel's errors were so serious as to deprive the petitioner of a fair trial. Myers v. State, 2012 Ark. 143, 400 S.W.3d 231. This requires the petitioner to show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. White v. State, 2013 Ark. 171, 426 S.W.3d 911. A reasonable probability is a probability sufficient to undermine confidence in the outcome |4of the trial. Golden v. State, 2013 Ark. 144, 427 S.W.3d 11.\\nUnless a petitioner makes both Strickland showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Taylor v. State, 2013 Ark. 146, 427 S.W.3d 29. We also recognize that \\\"there is no reason for a court deciding an ineffective assistance claim . to address both components of the inquiry if the defendant makes an insufficient showing on one.\\\" Anderson v. State, 2011 Ark. 488, at 3-4, 385 S.W.3d 783, 787 (quoting Strickland, 466 U.S. at 697, 104 S.Ct. 2052).\\nOn appeal, Watson argues that he was denied effective assistance of counsel in a number of respects. First, Watson argues that his trial counsel was ineffective for not investigating the possibility that another individual, Allen Boyd, may have committed the murder. In his petition, Watson alleged that Boyd had given a statement to the police advising that Harris had raped Whipple three weeks prior to the murder. Watson argued that the rape provided a motive for Boyd to kill Harris because it was \\\"common knowledge in the community\\\" that Boyd, Whipple's former boyfriend \\\"was very distraught over her ending their relationship\\\" and that Boyd was an \\\"extremely jealous and a very violent man.\\\" Watson continues to argue on appeal that his counsel had a duty to investigate all possible defense strategies and that, had counsel investigated this matter, it is likely that the jury's attention would have been drawn to Boyd because of Boyd's motive to kill Harris.\\nIn its order, the circuit court dismissed this claim on the ground that the allegation lacked factual substantiation, as there was no evidence connecting Boyd to the murder. We cannot say that the circuit court's finding is clearly erroneous. Although it is true that counsel |fihas a duty to make a reasonable investigation or to make a reasonable decision that makes particular investigations unnecessary, a petitioner under Rule 37.1 who alleges ineffective assistance of counsel for failure to perform adequate investigation must delineate the actual prejudice that arose from the failure to investigate and demonstrate a reasonable probability that the specific materials that would have been uncovered with further investigation could have changed the outcome of trial. See Breeden v. State, 2014 Ark. 159, 432 S.W.3d 618 (per curiam). The burden is entirely on the claimant to provide facts that affirmatively support his claims of prejudice, as neither conclusory statements nor allegations without factual substantiation are sufficient to overcome the presumption that counsel was effective, and such statements and allegations will not warrant granting postconviction relief. Bryant v. State, 2013 Ark. 305, 429 S.W.3d 193 (per curiam). A petitioner who asserts ineffective assistance for failure to investigate must show that further investigation would have been fruitful, and that the specific materials identified that counsel could have uncovered would have been sufficiently significant to raise a reasonable probability of a different outcome at trial. Watson v. State, 2012 Ark. 27, 2012 WL 234634 (per curiam). Thus, to prevail under Strickland, Watson was required to establish with facts that counsel made an error so serious that counsel was not functioning as the \\\"counsel\\\" guaranteed him by the Sixth Amendment. Thornton v. State, 2014 Ark. 113, 2014 WL 1096263 (per curiam). In this case, aside from alleging that Boyd had a potential motive for killing Harris, Watson does not present any facts beyond speculation that Boyd had anything to do with Harris's murder. As such, this allegation is conclusory and does not provide a basis for postconviction relief.\\n| (jUnder this point, Watson also contends that the circuit court should have allowed an evidentiary hearing to develop further facts on this issue. However, the strong presumption in favor of counsel's effectiveness cannot be overcome by a mere possibility that an evidentiary hearing might produce evidence to bolster an allegation contained in a petition for post-conviction relief. Hickey v. State, 2013 Ark. 237, 428 S.W.3d 446; Nance v. State, 339 Ark. 192, 4 S.W.3d 501 (1999). The supporting facts must appear in the petition, and the petitioner cannot rely on the possibility that facts will be elicited from witnesses if a hearing is held. Whitmore v. State, 299 Ark. 55, 771 S.W.2d 266 (1989). Conclusory allegations that are unsupported by facts do not provide a basis for either an evidentiary hearing or postconviction relief. Nance, supra. Therefore, we cannot conclude that the circuit court erred by not conducting a hearing on this matter.\\nWatson also submits that counsel was ineffective for failing to investigate, uncover, and utilize State's witness Sara Whipple's mental-health history to good advantage at trial. Again, relying on Boyd's statement to the police, Watson alleges that Boyd had told the police that Whipple suffered from bipolar disorder and schizophrenia and that, had trial counsel investigated this information, counsel could have mounted a more serious attack on Whipple's credibility during cross-examination.\\nWatson has changed his argument on appeal. Before this court, Watson contends that counsel should have investigated Whipple's mental health with an eye toward more effective cross-examination. However, in his Rule 37.1 petition, Watson alleged that counsel, armed with information concerning Whipple's mental health, was ineffective for not requesting a 17mental evaluation and a hearing for the circuit court to determine Whipple's competency as a witness. In addressing the issue actually raised in the petition, the circuit court noted that a witness is presumed to be competent and ruled that Watson's bare allegation that Whipple's competence might have been questioned did not support the claim that counsel should have requested an examination and a hearing held on her competency. Moreover, the circuit court found that Watson suffered no prejudice because, even with the exclusion of Whipple's testimony, there was no reasonable probability that the outcome of trial would have been different, given the other evidence of Watson's guilt. It is clear from the record that the argument advanced on appeal is not the same issue that Watson raised in his petition. An appellant cannot change the grounds for an argument for the first time on appeal. Mathis v. State, 2014 Ark. 148, 2014 WL 1344427 (per curiam); Hogan v. State, 2013 Ark. 223, 2013 WL 2295431 (per curiam). We address this issue no further.\\nNext, Watson argues that trial counsel was ineffective for not objecting when the prosecuting attorney made improper remarks during closing argument. He contends that the prosecutor made veiled references to his Fifth Amendment right to remain silent by commenting on testimony that Watson refused to give a DNA sample and that he gave a sample only after being compelled to do so by court order. Citing Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and this court's decision in Bailey v. State, 287 Ark. 183, 697 S.W.2d 110 (1985), he asserts that it is constitutional error under the Fifth Amendment for the prosecution to draw an adverse inference from the accused's invocation of his right against self-incrimination. He maintains that the prosecutor's argument with respect to withholding his DNA was Isdesigned to focus the jury's attention on his right to remain silent.\\nWhere it is asserted that counsel was ineffective for faffing to make a motion or argument, the petitioner must show that the motion or argument would have been meritorious because the failure to make an argument that is meritless is not ineffective assistance of counsel. Conley, supra. This court has observed that the protections of the Fifth Amendment do not extend to demonstrative, physical tests but are intended to immunize a defendant from providing the State with evidence of a testimonial or communicative nature. Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996). This court has also held that the results of DNA testing fall within the category of demonstrative, physical tests and do not constitute testimony or a communicative act. Talley v. State, 2010 Ark. 357, 377 S.W.3d 222. Furthermore, we have said that the Fifth Amendment right against self-incrimination is not implicated by DNA testing. Id. In light of these principles, it cannot be said that an objection to the prosecutor's statements would have been successful, as the fact that Watson would not voluntarily provide a DNA sample does not speak to a violation of the Fifth Amendment. The prosecutor's remarks were otherwise based on the testimony presented at trial, and no error exists when an attorney's comment during closing argument is directly reflecting or inferable from testimony at trial. Stewart v. State, 2012 Ark. 444, 2012 WL 5963224. The circuit court's rejection of this claim is not clearly erroneous.\\nIn another issue, Watson claims that he received ineffective assistance of counsel on direct appeal. He contends that appellate counsel should have mounted a challenge to the sufficiency of the evidence because the issue was preserved for appeal, as trial counsel had |9moved for a directed verdict, and because the evidence did not support a finding that he committed the murder.\\nA convicted defendant has the right to effective assistance of counsel on appeal in accordance with the Sixth Amendment. Howard v. State, 291 Ark. 633, 727 S.W.2d 830 (1987). A hallmark of appellate advocacy is the process of assessing arguments and focusing on those likely to prevail. Malone v. State, 294 Ark. 127, 741 S.W.2d 246 (1987). An attorney need not advance every possible argument, regardless of merit. Howard, supra; see also Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983); Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992). The petitioner claiming that counsel was ineffective on appeal bears the burden of making a clear showing that counsel failed to raise a meritorious issue. Howard, supra.\\nThis court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence. Green v. State, 2013 Ark. 497, 430 S.W.3d 729. In addressing this issue, we consider all of the evidence, including that which may have been inadmissible, in the light most favorable to the State. Fondren v. State, 364 Ark. 498, 221 S.W.3d 333 (2006). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence. Wells v. State, 2013 Ark. 389, 430 S.W.3d 65. Substantial evidence is evidence that is forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Stevenson v. State, 2013 Ark. 100, 426 S.W.3d 416. At issue is the charge of capital murder. A person commits this offense if, with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person. Ark.Code Ann. \\u00a7 5-10-101(a)(4) (Repl.2013).\\n| ^Viewing the evidence in the light most favorable to the State, the record of trial discloses that Harris's brother, O'taravious Harris, testified that he, Harris, and Watson spent the evening together and ended up at his and Harris's home where they drank and played pool. He said that Watson and Harris left the home and that he later spoke with them on the phone at approximately 2:15 a.m. Whipple testified that Watson knocked on her bedroom window at about 3:00 a.m. She said that Watson was behaving as though he was scared and upset and that he told her that he had killed someone. Whipple noticed that he had scratches and blood on him, and she did not allow him in the house. She recalled that, the next day, Watson was worried about the presence of DNA and that he wanted to burn his clothing. Vicki Jones testified that Watson appeared at her home at 3:50 a.m. She said that Watson was not wearing a shirt and that he was sweating. She did not let him inside. Marcus Hildreth testified that he saw Watson outside Jones's house and that he gave Watson a ride. He said that Watson appeared as though he had been in a fight and that he seemed paranoid and nervous. Hildreth stated that Watson told him that he had \\\"burnt\\\" someone. Hildreth also picked up Jeff Neely and Adrian Hadley at an apartment complex. Neely and Hadley testified that Watson repeated several times that he had killed someone. Hildreth also testified that Watson later told him in jail that he had struck Harris in the head with a rock.\\nThe foregoing testimony constitutes substantial evidence to support the guilty verdict. Watson was the last person seen with Harris, and he told four persons that same morning that he had killed someone. Further, the murder weapon was a piece of concrete, and Watson confessed to Hil-dreth that he had used a rock to commit the murder. In light of the evidence, | nwe hold that appellate counsel was not ineffective for not challenging the sufficiency of the evidence because that argument would not have succeeded on appeal.\\nAs his last issue, Watson contends that recent decisions of the United States Supreme Court mandate that this case be remanded to the circuit court for the appointment of counsel and a new Rule 37.1 proceeding. Although Watson makes a passing reference to Trevino v. Thaler, \\u2014 U.S. -, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), he places chief reliance on the opinion of Martinez v, Ryan, \\u2014 U.S. -, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), to argue that he is entitled to representation of counsel in his postconviction action.\\nIn March 2012, the United States Supreme Court decided Martinez, holding in part that \\\"when, a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance claim where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial.\\\" Martinez, 132 S.Ct. at 1318. In other words, where state law bars a defendant from raising claims of ineffective assistance of trial counsel on direct appeal, \\\"a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.\\\" Id., 132 S.Ct. at 1320; see also Dansby v. Norris, 682 F.3d 711, 729 (8th Cir.), adhered to on denial of reh'g sub nom. Dansby v. Hobbs, 691 F.3d 934 (8th Cir.2012). In 2013, the Supreme Court revisited the procedural-default issue in Trevino and stated that the Martinez Court had read the previous decision in Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) h2\\\"as containing an exception, allowing a federal habeas court to find \\\"cause,\\\" thereby excusing a defendant's procedural default, where (1) the claim of \\\"ineffective assistance of trial counsel\\\" was a \\\"substantial\\\" claim; (2) the \\\"cause\\\" consisted of there being \\\"no counsel\\\" or only \\\"ineffective\\\" counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the \\\"initial\\\" review proceeding in respect to the \\\"ineffective-assistance-of-trial-counsel claim\\\"; and (4) state law requires that an \\\"ineffective assistance of trial counsel [claim] . be raised in an initial-review collateral proceeding.\\\" Trevino, \\u2014 U.S. at -, 133 S.Ct. at 1918 (alteration in original) (citing Martinez, \\u2014 U.S. at -, 132 S.Ct. at 1318-19, 1320-21). In Paige v. State, 2013 Ark. 432 (per curiam), this court briefly discussed the holdings of Martinez and Trevino and commented that neither decision dictates that counsel must be appointed on appeal in a postcon-viction proceeding.\\nBe that as it may, the issue Watson raises on appeal was not presented to the circuit court. In his petition for postcon-viction relief, Watson made a general request for the appointment of counsel. However, he did not argue, as he does on appeal, that the appointment of counsel was required under the Martinez decision. As we have stated, we do not consider issues that are raised for the first time on appeal. Tornavacca v. State, 2012 Ark. 224, 408 S.W.3d 727.\\nAffirmed.\"}"
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+"{\"id\": \"6939284\", \"name\": \"FORD MOTOR COMPANY, Appellant v. Paulette R. WASHINGTON, Individually and as Administratrix of the Estate of Johnny Ray Washington, Deceased, and as Parent and Legal Guardian of Terian Washington, A Minor, Appellee\", \"name_abbreviation\": \"Ford Motor Co. v. Washington\", \"decision_date\": \"2013-12-12\", \"docket_number\": \"No. CV-13-449\", \"first_page\": \"210\", \"last_page\": \"227\", \"citations\": \"431 S.W.3d 210\", \"volume\": \"431\", \"reporter\": \"South Western Reporter Third Series\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T01:37:40.415761+00:00\", \"provenance\": \"CAP\", \"judges\": \"BAKER, GOODSON, and HART, JJ\\u201e dissent.\", \"parties\": \"FORD MOTOR COMPANY, Appellant v. Paulette R. WASHINGTON, Individually and as Administratrix of the Estate of Johnny Ray Washington, Deceased, and as Parent and Legal Guardian of Terian Washington, A Minor, Appellee.\", \"head_matter\": \"2013 Ark. 510\\nFORD MOTOR COMPANY, Appellant v. Paulette R. WASHINGTON, Individually and as Administratrix of the Estate of Johnny Ray Washington, Deceased, and as Parent and Legal Guardian of Terian Washington, A Minor, Appellee.\\nNo. CV-13-449.\\nSupreme Court of Arkansas.\\nDec. 12, 2013.\\nRehearing Denied Jan. 16, 2014.\\nWright, Lindsey & Jennings, LLP, Little Rock, by: Edwin L. Lowther, Paul D. Morris, and Gary D. Marts, for appellant.\\nThe Duncan Firm, Little Rock, by: Phillip J. Duncan; Denney & Barrett, P.C., by: Richard L. Denney and LydiaJoAnn Barrett; and Brian G. Brooks, Attorney at Law, PLLC, by: Brian G. Brooks, for appellee.\", \"word_count\": \"8868\", \"char_count\": \"54246\", \"text\": \"CLIFF HOOFMAN, Justice.\\n| Appellant Ford Motor Company (\\\"Ford\\\") appeals from the judgment entered against it following a jury trial in Jefferson County Circuit Court. Ford presents five points of error on appeal: (1) whether the circuit court abused its discretion in refusing to admit evidence of seat belt noncompliance pursuant to Arkansas Code Annotated section 27-37-703 (Repl. 2008); (2) whether the circuit court erred as a matter of law in determining that the defective-glass claim was not preempted by Federal Motor Vehicle Safety Standard 205 (\\\"FMVSS 205\\\"), 49 C.F.R. \\u00a7 571.205 (2001); (3) whether the circuit court erred in denying Ford's motion for judgment notwithstanding the verdict on the issue of punitive damages; (4) whether the circuit court erred in failing to reduce the jury's compensatory-damages award, pursuant to Arkansas Code Annotated sections 16-61-204 and-205 (Repl.2005), before entering | \\u00bfjudgment for Washington; and (5) whether the nunc pro tunc designation included in the circuit court's judgment is contrary to Arkansas law. We simultaneously consider with the submission of this case a motion filed by Washington during the pendency of the appeal to strike a portion of Ford's reply brief. We affirm in part, reverse and remand in part, and rule that the motion is denied.\\nAt approximately 10:30 a.m. on August 23, 2000, Johnny Ray Washington and his eleven-year-old son, Terian, were traveling in their 1994 Ford Explorer on Linden Street in Pine Bluff, Arkansas, when the vehicle was struck on the driver's side by Karah Allen Williams, who had run a stop sign. The Explorer rolled over twice and landed right-side up. Terian walked away from the accident, but Johnny suffered a fatal head injury when his head exited the vehicle during the rollover and was crushed. When emergency-medical technicians arrived on the scene, Johnny was in severe distress but still had a pulse and slow respirations. Johnny was transported to Jefferson County Regional Medical Center, where he was pronounced dead at 11:39 a.m.\\nOn August 14, 2003, appellee Paulette R. Washington, the decedent's wife, individually and as administratrix of her husband's estate, and as parent and legal guardian of Terian Washington, filed a complaint in the Jefferson County Circuit Court against Ford Motor Company (\\\"Ford\\\"), Freeway Ford Lincoln Mercury, Inc., and Karah Allen Williams. | .-Washington asserted several claims against Ford, including negligence, strict liability, failure to warn, and breach of warranties. She asked for past and future medical expenses; past and future lost earnings; future loss of earning capacity; past and future pain and suffering; past and future mental anguish and mental harm; loss of services, society, and companionship; permanent injuries; properly damage; the reasonable value of the loss of Johnny's life; and the reasonable value of funeral expenses. She also asserted a claim for punitive damages against Ford.\\nThe case proceeded to trial on August 16, 2010, solely against Ford, and Washington alleged that the Explorer had two defects: (1) the propensity to roll over and (2) the use of tempered, rather than laminated glass, in the side windows that made ejection or partial ejection in a rollover more likely. Although Williams had been previously dismissed, the circuit court allowed her to be placed on the verdict form for apportionment purposes. After a two-week trial, the jury returned a verdict finding that both Ford and Williams, equally, had been the proximate cause of Johnny's death. The jury awarded Washington $4,652,125 in compensatory damages and $2.5 million in punitive damages, and a judgment was entered on October 6, 2010, in which the circuit court merely reproduced the jury's answers to the special interrogatories without setting forth a specific dollar amount owed by Ford.\\nOn October 20, 2010, Ford filed a motion for judgment notwithstanding the verdict or alternatively, for a new trial, which was denied. Ford filed a timely notice of appeal, and ^Washington filed a notice of cross-appeal. This court dismissed Ford's first appeal without prejudice due to the lack of a final order because no written order had been entered dismissing Freeway Ford. See Ford Motor Co. v. Washington, 2012 Ark. 325, 2012 WL 4017383 (\\\"Ford I\\\"). We then dismissed the second appeal for lack of finality because the judgment did not set forth a specific dollar amount owed by Ford. See Ford Motor Co. v. Washington, 2013 Ark. 88, 2013 WL 776233 (\\\"Ford II\\\"). Following a second remand, the circuit court entered an order on April 8, 2013, awarding judgment against Ford in the amount of $7,152,125. The court also included a nunc pro tunc provision in the order, making the judgment retroactive to October 6, 2010, the date of the original judgment, for post-judgment-interest purposes.\\nFord filed a motion to alter or amend the judgment, arguing that the nunc pro tunc designation was improper; a motion for JNOV; and a motion for remittitur, arguing that the award of compensatory damages should be reduced in accordance with the jury's 50-50 allocation of fault between Ford and Williams. These motions were denied by the circuit court on April 29, 2013, and Ford filed a timely notice of appeal on May 3, 2013.\\nI. Section 27-37-703\\nFor its first point on appeal, Ford contends that the circuit court abused its discretion when it found that Ford had not met the requirements of Arkansas Code Annotated section 27-37-703 and prohibited Ford from introducing evidence that Johnny was not wearing a seat belt at the time of the accident. Ford maintains that it put forth sufficient proof to meet its burden under the statute. Ford also asserts that the circuit court abused its discretion in allowing Washington to present testimony that Johnny was wearing his seat belt because once 1 \\u00bfWashington \\\"opened the door,\\\" it was error not to allow Ford to rebut that evidence, even where such evidence was otherwise inadmissible.\\nIn response, Washington argues that Ford did not meet its statutory burden and that the circuit court was correct to reject Ford's evidence suggesting that Johnny was not wearing a seat belt because it was \\\"conjecture,\\\" \\\"lack[ed] foundation,\\\" and was \\\"merely conclusionary.\\\" Further, Washington asserts that Ford's \\\"opening the door\\\" argument is not preserved.\\nAccording to Ark.Code Ann. \\u00a7 27-37-703 (Repl.2008), which governs the admissibility of such evidence,\\n(a)(1) The failure of an occupant to wear a properly adjusted and fastened seat belt shall not be admissible into evidence in a civil action.\\n(2) Provided, that evidence of such failure may be admitted in a civil action as to the causal relationship between noncompliance'and the injuries alleged, if the following conditions have been satisfied:\\n(A) The plaintiff has filed a products liability claim other than a claim related to an alleged failure of a seat belt;\\n(B) The defendant alleging noncompliance with this subchapter shall raise this defense in its answer or timely amendment thereto in accordance with the rules of civil procedure; and\\n(C) Each defendant seeking to offer evidence alleging noncompliance has the burden of proving:\\n(i) Noncompliance;\\n(ii) That compliance would have reduced injuries; and\\n(iii)The extent of the reduction of such injuries.\\n(b)(1) Upon request of any party, the trial judge shall hold a hearing out of the presence of the jury as to the admissibility of such evidence in accordance with the provisions of this section and the rules of evidence.\\n(2) The finding of the trial judge shall not constitute a finding of fact, and the finding shall be limited to the issue of admissibility of such evidence.\\nOn the second day of trial, Ford filed a motion for admission of evidence of the 1 (\\u00a1decedent's failure to wear a seat belt, asserting that it had met the prerequisites of section 27-37-703. Specifically, Ford put forth the deposition testimony of Dr. Robert Piziali, a mechanical-engineering and accident-reconstruction expert, who testified that there were no marks on the vehicle's restraint system consistent with belt use; that there were no marks on the decedent that were consistent with belt use; that the position of the decedent's head at the time of the injury was inconsistent with restraint use; that if the decedent had been properly restrained, his head would not have been able to exit the vehicle; and that had he been properly restrained, the decedent would not have been in a position to be killed.\\nTo rebut Ford's evidence of seat belt nonuse, Washington presented the deposition testimony of Timothy Clowers, a paramedic who had arrived on the scene of the accident and attended to Johnny. Clowers testified that \\\"from the best of my recollection,\\\" he remembered having to undo the decedent's seat belt before tending to his injuries. When he was referred to a notation contained in the decedent's emergency-room records stating, \\\"motor vehicle accident, unrestrained driver,\\\" Clowers stated that he did not recall telling emergency-room personnel that the decedent was or was not restrained. Clowers further stated that he could not disagree with the notation without knowing the basis for it, but that, in his experience, emergency-room personnel generally assume that a person was not restrained when the person is ejected from the vehicle. On cross-examination, Clowers said that he did not have a specific recollection of unfastening the decedent's seat belt. He also 17did not specifically recall whether the shoulder harness was positioned across the decedent's torso.\\nAfter holding a hearing on the motion out of the presence of the jury and considering this proffered testimony, as well as the parties' arguments, the circuit court ruled that Ford had not met its burden under the statute and that evidence of nonuse of the seat belt would be excluded. Thereafter, when Washington attempted to introduce the portions of Clowers's deposition testimony set out above into evidence, Ford objected \\\"on the grounds it goes to the issue of whether Johnny Washington was belted or not.\\\" Ford argued,\\nFord: Well, plaintiff was allowed to put in proof that Johnny Washington was allowed to wear his belt. We're saying in this particular case, what the Court has indicated that Ford is not allowed to rebut that proof at this time. The plaintiff is opening the door, allowing Ford to do so. But, if the Court does not allow Ford to do so, it would be unfairly prejudiced by this evidence coming in at this time.\\nCOURT:\\u2014given on this very point. The reason why Ford is prohibited is Ford did not comply with the statute, and if you complied this morning with it, that's the problem. It's simple. You didn't follow the law. And the law said the defendant. It doesn't talk about-it's talking about belted. It doesn't give you any fairness argument because of that. You already know it. You're wasting my time raising this objection. Don't do it again. Objection overruled. Proceed. This point has been decided.\\nOur standard of review for evidentiary rulings dictates that circuit courts have broad discretion and that a circuit court's ruling on the admissibility of evidence will not be reversed absent an abuse of that discretion. Green v. Alpharma, Inc., 373 Ark. 378, 284 S.W.3d 29 (2008). A circuit court abuses its discretion when it makes a decision that is arbitrary or capricious. See Phelan v. Discover Bank, 361 Ark. 138, 205 S.W.3d 145 (2005).\\nIsThere is no dispute in this case that Ford complied with section 27-37-703(a)(2)(A) and (B) of the statute, as this is a products-liability action involving a claim not related to an alleged failure of a seat belt, and the issue was raised by Ford in its answer. Instead, the issue on appeal is whether the elements relating to noncompliance, reduction in injury, and the extent of any reduction in injury, which are listed in subsection (c) of the statute, were adequately proved by Ford.\\nWith regard to noncompliance, Ford argues that Clowers's testimony as to whether Johnny was wearing a seat belt was equivocal and that Washington did not submit any other evidence, expert or otherwise, on the issue. Ford thus argues that substantial evidence was presented of noncompliance. As to its proof of a reduction in injuries, and the extent of any such reduction, had a seat belt been worn, Ford contends that it presented sufficient evidence of these statutory elements through Dr. Piziali's deposition testimony that the vast majority of rollover accidents do not result in fatal injuries and that had Johnny been belted, he would not have been in a position to have suffered the head injury that killed him. Ford again argues that Washington failed to present any evidence to the contrary and that the circuit court abused its discretion by ruling that the evidence of seat belt nonuse was inadmissible, given Dr. Piziali's \\\"unrefuted testimony.\\\"\\nIn concluding that Ford had failed to meet its burden of proving that this evidence was admissible under section 27-37-703, the circuit court stated that it was troubled by the following: that many of Dr. Piziali's statements were generalizations; that while Dr. Piziali ^commented about a lack of blood splatter on the seat belt, he did not indicate that there were in fact blood-splatter patterns present in the vehicle that would indicate that there could have been splatter present on the belt as well; that no evidence was presented regarding what a seat belt-restraint system should have done in a rollover scenario; that Dr. Piziali did not specify the extent of the reduction of the injuries that wearing a seat belt would have resulted in other than survival; that the court was unsure about Dr. Piziali's expertise and how it related to what normally happens to a body in a rollover accident; that Dr. Piziali seemed to rely heavily on an ER document that the injured person was not belted and disregarded the testimony of Clowers, who was an eyewitness; that there was no evidence presented on what the injuries would have been had Washington been belted; and that much of the evidence presented to the court had been statistics and generalizations rather than specific facts relevant to this case.\\nAs noted above, this court may not overturn the circuit court's decision absent an abuse of discretion. An abuse of discretion is a high threshold that does not simply require error in the circuit court's decision, but requires that the court act improvidently, thoughtlessly, or without due consideration. See Coker v. Coker, 2012 Ark. 383, 423 S.W.3d 599. The circuit court in this case held a hearing on the issue, considered the evidence presented, allowed argument from both parties, and announced a fairly lengthy ruling before issuing its written order denying Ford's motion. While Ford disagrees with the weight that was given to its evidence and opines that it was sufficient to meet the statutory requirements, it was for the circuit court to determine whether the requisite showing had been made. Further, the plain wording of the statute requires that the defendant \\\"prove\\\" the required | toelements to the satisfaction of the circuit court, not merely that \\\"sufficient\\\" or \\\"substantial\\\" evidence be shown, as Ford argues in its brief. Under these circumstances, we cannot find that the circuit court acted improvidently, thoughtlessly, arbitrarily, capriciously, or without due consideration in finding that Ford did not meet its burden under the statute.\\nFord also argues that the circuit court abused its discretion in excluding evidence of seat belt nonuse when Washington \\\"opened the door\\\" to the admission of such evidence by introducing evidence that Johnny was, in fact, wearing his seat belt at the time of the accident. Although Washington asserts that Ford failed to properly preserve this argument for appeal, we disagree. As set out above, Ford objected on this basis when Washington sought to introduce Clowers's deposition testimony into evidence, and the objection was overruled by the circuit court.\\nIn any event, we find no merit to Ford's contention that it was entitled to rebut Washington's evidence of seat belt usage once the door had been opened, regardless of whether the evidence of non-use was inadmissible under the statute. We have recognized the propriety of \\\"fighting fire with fire\\\" when a party-opens the door with an untruthful statement, introduces inadmissible evidence, or makes an improper closing argument. See, e.g., King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999); Larimore v. State, 317 Ark. 111 , 877 S.W.2d 570 (1994). Also, in Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984), a case cited by Ford in its argument, we held that the trial court did not abuse its discretion in admitting character evidence that was otherwise inadmissible under Ark. R. Evid. 404, where the plaintiff had opened the door to the rebuttal evidence by testifying to his past exemplary |nconduct. In this case, the circuit court overruled Ford's objection that Washington had opened the door to the admission of evidence of seat belt nonuse, noting that Ford had not complied with the requirements in the statute and that the statute does not provide for such an exception. Because there is a statute that expressly prohibits the admission of this evidence, this case can be distinguished from other cases in which we have held that otherwise inadmissible character evidence pursuant to our rules of evidence may be admitted to \\\"fight fire with fire.\\\" See Pursley, supra. We cannot say that the circuit court abused its discretion in this ease, and we therefore affirm the circuit court's ruling excluding evidence of Johnny's nonuse of a seat belt.\\nII. Preemption\\nFor its second point on appeal, Ford argues that the circuit court erred in permitting Washington to proceed on her glazing claim because it is preempted by FMVSS 205, which expressly allows vehicle manufacturers to use tempered glass in the side windows of vehicles. Ford contends that the failure of the circuit court to dismiss this claim was legal error that warrants a new trial. Washington responds that Ford's preemption argument is waived because the jury reached its verdict on a general-verdict form. She claims that, without any indication of how the jury reached its verdict, this court must affirm the jury's findings. Alternatively, Washington contends that the federal regulation does not preempt state common-law causes of action and argues that the circuit court was correct in allowing her to present the glazing claim as a factual question for resolution by the jury.\\nThe following facts are pertinent to this particular point on appeal. According to the |12record, vehicle manufacturers typically use one of two types of glass glazing in their vehicle windows. Tempered glazing consists of a sheet of glazing that is designed to shatter on impact into small, granular pieces. American National Standards Institute Standard Z26.1 (\\\"ANSI Z26\\\") at Forward. Laminated glazing consists of two or more sheets of glass held together by a layer of plastic so that, when the glass cracks or breaks, the broken glass adheres to the sheet of plastic. Id. FMVSS 205, which was promulgated by the National Highway Traffic Safety Administration under the authority of the Federal Safety Act, expressly provides vehicle manufacturers with a choice of installing tempered glazing or laminated glazing in side windows.\\nWashington's complaint alleged negligence, strict liability, failure to warn, and breach of warranty based on Ford's use of tempered glass in the Explorer. In response, Ford filed an amended answer alleging that federal law preempted Arkansas tort law or warranty law that allows for design-defect liability based on Ford's choice to use the tempered-glass option under FMVSS 205. Washington then filed a motion for partial summary judgment on the glass-glazing claim and requested that the circuit court find that the claim was not preempted by FMVSS 205. Subse quently, Ford filed its response and cross-motion for summary judgment, arguing that FMVSS 205 preempted state-law design-defect claims regarding a manufacturer's decision to use the tempered-glass option granted by federal law.\\nPrior to trial, the circuit court conducted a pretrial-motion hearing and heard arguments on whether FMVSS 205 preempted Washington's state-law claims. At the hearing, the court orally granted Ford's motion, ruling that FMVSS 205 preempted Arkansas law. | ^Washington then filed a motion for reconsideration, and the circuit court entered an order vacating its prior ruling and finding that Washington's \\\"glass/glazing and containment claims were not preempted by FMVSS 205, nor do these claims expressly or impliedly conflict with the underlying purposes of FMVSS 205 or its enabling act, the National Traffic and Motor Vehicle Safely Act.\\\"\\nThe case proceeded to trial where Washington's expert, Dr. Steven Batzer, testified that the tempered glazing used in the Ford Explorer was unreasonably dangerous because it failed to keep the decedent inside the vehicle. Dr. Batzer stated that Ford should have used laminated glazing, and that if laminated glazing had been used in the vehicle, the decedent would have survived the accident. Dr. Batzer did concede that \\\"virtually everybody\\\" manufacturing vehicles in 1994 used tempered glazing in the side windows and that the tempered glazing used by Ford complied with the applicable federal safety standard. The jury also heard evidence that during the vehicle's rollover, the tempered glass in the driver-side window shattered, allowing the decedent's head to become trapped between the ground and the door frame. The jury was instructed on negligence and strict liability. Both Ford and Washington accepted general-verdict forms assigning fault without special interrogatories specifying the bases for that finding. At the trial's conclusion, the jury found by a preponderance of the evidence that both Ford and Williams were at fault and had proximately caused the decedent's death.\\nOn appeal, Ford argues that a new trial is warranted because Washington's tort claims based on the use of defective glazing are preempted by FMVSS 205. In support of its 114argument, Ford primarily relies on the South Carolina Supreme Court's decision in Priester v. Cromer, 401 S.C. 38, 736 S.E.2d 249 (2012). See also Noel v. Ford Motor Co., No. 6:11-cv-370-orl-28DAB, 2013 WL 1786637 (M.D.Fla. Apr. 26, 2013); Morgan v. Ford Motor Co., 224 W.Va. 62, 680 S.E.2d 77 (2009). Aside from her waiver argument, Washington asserts that her claim is not preempted, and she refers us to a number of decisions where courts have determined that a glazing claim is not preempted by federal law. See O'Hara v. General Motors Corp., 508 F.3d 753 (5th Cir.2007); Bernal v. Daewoo Motor Am., Inc., No. CV09-1502 PHX-DGC, 2011 WL 2174890 (D.Ariz. June 2, 2011); Raley v. Hyundai Motor Co., No. CIV-08-0376-HE, 2010 WL 528420 (W.D.Okla. Feb. 11, 2010); Spruell v. Ford Motor Co., Civ. No. 07-2058, 2008 WL 906648 (W.D.Ark. Apr. 1, 2008); Burns v. Ford Motor Co., Civ. No. 06-5201, 2008 WL 222711 (W.D.Ark. Jan. 24, 2008); Lake v. Memphis Landsmen, LLC, 405 S.W.3d 47 (Tenn.2013); MCI Sales and Serv., Inc. v. Hinton, 329 S.W.3d 475 (Tex.2010). In these decisions cited by the parties, the courts have considered the preemption issue in the wake of the Supreme Court's opinion of Geier v. American Honda Motor Co., 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000). See also Williamson v. Mazda Motor of Am., Inc., \\u2014 U.S. -, 131 S.Ct. 1131, 179 L.Ed.2d 75 (2011); Sprietsma v. Mercury Marine, 537 U.S. 51, 123 S.Ct. 518, 154 L.Ed.2d 466 (2002).\\nAs a threshold matter, we first address Washington's contention that Ford waived the preemption argument for purposes of appeal because the case was presented to the jury on a general-verdict form. On this point, the record reflects that the jury was instructed that it could find Ford liable based on either negligence or strict liability. In support of both claims, Washington asserted that the vehicle was defective (1) because it had an unreasonable 11 \\u00bfpropensity to roll over, or (2) because the side window was made of tempered glass. It is only the latter theory of recovery that Ford asserts should have been dismissed.\\nWe are persuaded by Washington's waiver argument. Where the jury's verdict is rendered on a general-verdict form, it is an indivisible entity or, in other words, a finding upon the whole case. S. Cent. Ark. Elec. Coop. v. Buck, 354 Ark. 11, 117 S.W.3d 591 (2003). This court will not speculate on what the jury found where a general jury verdict is used. Tyson Foods, Inc. v. Davis, 347 Ark. 566, 66 S.W.3d 568 (2002); Primm v. U.S. Fidelity & Guar. Ins. Corp., 324 Ark. 409, 922 S.W.2d 319 (1996). When special interrogatories concerning liability or damages are not requested, this court is left in the position of not knowing the basis for the jury's verdict, and this court will not question or theorize about the jury's findings. Hyden v. Highcouch, Inc., 353 Ark. 609, 110 S.W.3d 760 (2003); Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997).\\nOur previous opinion in Union Pacific Railroad Co. v. Barber, 356 Ark. 268, 149 S.W.3d 325 (2004), is pertinent to our decision here. In that case, the Barbers premised their claim of negligence on five different theories, and the jury was given a general-verdict form on which to impose liability. On appeal, Union Pacific contested the jury's findings with respect to only two of the theories supporting the claim of negligence. Applying the above-mentioned rules of law, this court declined to address Union Pacific's arguments because the jury could have fixed liability on another theory that was advanced at trial.\\nSimilarly, in Tyson, supra, the jury was instructed on negligence, fraud, and promissory estoppel but the verdict form did not differentiate between the different types of damages 11Bthat could be awarded. The verdict form in that case stated, \\\"We the jury find for Don Davis on his claim for damages and award damages against Tyson Foods, Inc. in the amount of $891,660.\\\" Tyson, 347 Ark. at 576, 66 S.W.3d at 579. In Tyson, we affirmed the damage award, holding as follows:\\nThe evidence was presented to the jury, and the general verdict casts no light on what decision the jury reached other than liability and an amount of damages. No further analysis may be undertaken. Special interrogatories concerning damages were not requested. We are left in the position of not knowing the basis for the jury's verdict and we will not question or theorize about the jury's findings. Esry [v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997).]\\nId. at 585, 66 S.W.3d at 581.\\nIn the instant case, the jury could have found in favor of Washington based on the Explorer's propensity to roll over, or it could have found that the window glazing was defective. The jury might also have found a combination of both defects. However, because the jury could have based its verdict solely on the rollover theory, we must affirm on this point. This court simply cannot speculate as to how the jury arrived at its decision; thus, Ford has failed to demonstrate prejudice result ing from the jury's consideration of the glazing claim.\\n117III. Punitive Damages\\nIn its third point on appeal, Ford argues that the circuit court erred in denying its motion for judgment notwithstanding the verdict on the issue of punitive damages. Ford does not argue that the punitive-damages award was excessive; rather, it argues that there was insufficient evidence in this case that it was malicious or indifferent to the consequences of its actions. It contends that mere negligence, even gross negligence, does not suffice to justify an award of punitive damages.\\nOur standard of review of the denial of a motion for judgment notwithstanding the verdict is the same as that for a denial of a direeted-verdict motion. Carter v. Cline, 2011 Ark. 474, 385 S.W.3d 745. Thus, a circuit court may enter a judgment notwithstanding the verdict only if there is no substantial evidence to support the verdict and the moving party is entitled to judgment as a matter of law. Id.\\nThis court has held that an award of punitive damages is justified only where the evidence indicates that the defendant acted wantonly or with such a conscious indifference to the consequences that malice may be inferred. Stein v. Lukas, 308 Ark. 74, 823 S.W.2d 832 (1992). An instruction for punitive damages may be given when there is evidence that a party likely knew or ought to have known, in light of the surrounding circumstances, that his conduct would naturally or probably result in injury, and that he continued such conduct in reckless disregard of the consequences from which malice could be inferred. D'Arbonne Constr. Co. v. Foster, 354 Ark. 304, 123 S.W.3d 894 (2003). When this court reviews an award of punitive damages, we consider the extent and enormity of the wrong, the intent of the party committing the wrong, all the circumstances, and the financial and social condition and standing of the erring party. Id.\\nWashington argues that she presented substantial evidence of Ford's knowledge of the 1994 Explorer's rollover tendencies. We agree. She introduced evidence that Ford's engineers had recommended four solutions to the Explorer's rollover issues but that only two changes were made in order not to delay the vehicle's production date. One of Washington's experts demonstrated to the jury the effectiveness of the previously recommended modifications of widening the track width of the vehicle and installing smaller tires, both of which were technically feasible and neither of which was implemented by Ford in the 1994 model despite the recommendations of its engineers. Further, there was evidence that Ford had inadequately tested the vehicle, that it had tested the Explorer under unrealistic conditions, such as by placing sand bags on the floor instead of in the seats to lower the center of gravity, and that it had consciously disregarded the risk of rollover when it chose to sell the Explorer with the larger tires that Johnny's vehicle had installed, despite management's awareness of the risk associated with the larger tires. With regard to the glazing issue, Washington presented evidence as to the feasibility of installing properly framed laminated side windows, the minimal cost of such windows, the fact that Johnny would not have suffered fatal injuries had such glazing been installed, and the knowledge by Ford engineers as to the superiority of laminated glazing in cases of rollover.\\n|19Given this proof, we find that there was substantial evidence to support the jury's award of punitive damages in this case. While Ford presented evidence to refute many of Washington's allegations, that was an issue of credibility for the jury to determine. Chavers v. Epsco, Inc., 352 Ark. 65, 98 S.W.3d 421 (2003). Thus, we affirm on this point.\\nIV. Compensatory Damages\\nFord argues in its fourth point on appeal that the compensatory-damages award should be reduced by 50%, pursuant to Ark.Code Ann. \\u00a7 16-61-204 and -205. This case was controlled by the law governing joint and several liability, as the accident occurred prior to the passage of the Civil Justice Reform Act in 2003. When Washington settled with Williams, the other tortfeasor in this case, they signed a \\\"Release and Settlement Agreement,\\\" which provided that any damages recoverable by Washington would be reduced to the extent of Williams's pro rata share of fault. Ford was not a party to this agreement, but it argues that pursuant to this agreement and to Ark.Code Ann. \\u00a7 16-61-204, the compensatory damages awarded should have been reduced by 50%, which is the amount of fault found by the jury to be attributable to Williams.\\nThe version of section 16-61-204 (1987) in effect at the time of this ease provided that\\n[a] release by the injured person of one (1) joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides; but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid.\\nThe release and settlement agreement in this case also stated that it was the intent of the parties to the agreement to comply with the provisions of the Uniform Contribution Among fin Joint Tortfeasors Act (\\u00a7 16-61-201 et seq.), so as to provide for a reduction to the extent of the pro rata share of the released tortfeasor of the injured person's damages recoverable against all other tortfeasors.\\nWhile Ford correctly recites the law on this issue, there are other factors present here that prevent this court from ordering such a reduction in the award of compensatory damages. As Washington contends in her brief, the instructions submitted to the jury on compensatory damages stated, \\\"If an interrogatory requires you to assess the damages of Mrs. Washington, you must then fix the amount of money which will reasonably and fairly compensate Paulette R. Washington, Teri-an Washington, Quinton Swygart, and the Estate for those elements of damage which you find were proximately caused by the negligence and/or manufacture, assembly, and/or sale of a defective vehicle by Ford Motor Company.\\\" (Emphasis added.) Although the interrogatories themselves did not limit the damages to those caused solely by Ford, Ford at no time objected to this instruction or argued that the jury instructions were inconsistent with the in terrogatories. Absent evidence to the contrary, the jury is presumed to obey the instructions. Pearson v. Henrickson, 336 Ark. 12, 983 S.W.2d 419 (1999). There is no evidence that the jury in this case failed to follow the instructions; thus, the damages it awarded represented only those proximately caused by Ford, and no reduction of the compensatory-damages award is warranted. We therefore affirm on this point on appeal.\\nV. Postjudgment Interest\\nIn its final point on appeal, Ford argues that the circuit court erred in its judgment entered on April 8, 2013, subsequent to this court's second dismissal of the appeal for lack of |21a final judgment, because it included a provision entering the judgment nunc pro tunc to October 6, 2010, for postjudgment-interest purposes. As Ford asserts, nunc pro tunc orders are intended to make the record speak the truth, but not to make it speak what it did not speak but ought to have spoken. Lord v. Mazzanti, 339 Ark. 25, 2 S.W.3d 76 (1999). A court entering a nunc pro tunc order can only correct the record to make it conform to action that was actually taken, such as for clerical errors, and the court cannot modify a decree to provide action that the court, in retrospect, should have taken but did not. Id.\\nThe circuit court explained in its order denying Ford's posttrial motions that it had intended to enter a final judgment on October 6, 2010, and that it intended for postjudgment interest to run from that date. However, Ford contends that this explanation fails to justify the nunc pro tunc order because the October 6, 2010 judgment was not final, regardless of what the circuit court intended, and because the matter of postjudgment interest was not a clerical error but an action that should have been taken but which the court did not in fact take.\\nWhile Washington responds by arguing that a circuit court has discretion to enter a judgment nunc pro tunc for post-judgment interest, citing Southern Farm Bureau Casualty Ins. Co. v. Robinson, 238 Ark. 159, 379 S.W.2d 8 (1964), an important distinction here is that the original judgment entered on October 6, 2010, was held by this court not to be a final judgment. See Ford I, supra. Postjudgment interest is not designed to begin accruing prior to the entry of a final judgment, as prejudgment interest may also be awarded where appropriate. The purpose of awarding postjudgment interest is to compensate judgment creditors for the |22loss of money adjudged to be due them. Glover v. Woodhaven Homes, Inc., 346 Ark. 397, 57 S.W.3d 211 (2001).\\nIn Glover, we discussed whether the trial court's award of postjudgment interest should have been calculated from the date of the original judgment, which we had reversed and remanded in an earlier appeal for the judgment amount to be modified. We concluded in that case that the interest was properly awarded from the entry of the original judgment because the reversal amounted to nothing more than a remand for clarification on the method the trial court used to determine the damages it awarded. Id. We held that when a judgment is affirmed in a modified amount, the new amount draws interest from the date of the original judgment; however, when the original judgment is reversed on appeal, any new award subsequently entered by the trial court may bear interest only from the date the new judgment is entered. Id. We also noted in reaching our decision in Glover that our opinion reversing and remanding for clarification of the original judgment did not instruct the trial court to decide any new issues or hear any additional evidence. Id.\\nIn the present case, we dismissed Ford's appeals in Ford I and Ford II because there remained issues to be decided by the circuit court and thus, the original judgment was not final. Because a final judgment in this case was not entered until April 8, 2013, we find that postjudgment interest should only have been awarded from that date forward. We therefore reverse and remand on this point.\\nOne final issue that must be addressed is Washington's motion to strike a portion of Ford's argument in its reply brief, where Ford argued that Washington had waived any | ^objection to including Williams, as a nonparty, on the verdict form. Washington argues that this \\\"new\\\" argument by Ford in its reply brief is improper because it ignores and misrepresents statements by counsel at the trial and because an appellee cannot be found to have waived an argument on appeal. We agree with Ford that it was entitled to raise this argument in its reply brief in response to Washington's arguments in her brief, regardless of whether Ford's response was meritorious, and we therefore deny the motion to strike.\\nAffirmed in part; reversed and remanded in part; motion to strike reply argument denied.\\nBAKER, GOODSON, and HART, JJ\\\" dissent.\\n. Washington entered into a settlement-and-release agreement with Williams on August 7, 2006, and the circuit court entered an order dismissing all claims against her with prejudice. In addition, the circuit court orally dismissed with prejudice all claims against Freeway Ford after Washington moved during trial to nonsuit her claims against it. However, no written order to that effect was entered at that time.\\n. Clowers was deceased at the time of trial.\\n. Citing England v. Costa, 364 Ark. 116, 216 S.W.3d 585 (2005), Ford urges this court to presume prejudice because it raised an objection to a jury instruction referencing the concept of preemption. However, Ford's objection was that the instruction should not be given in isolation without additional instructions setting forth other pertinent principles of federal regulatory law. Ford made no argument that the instruction erroneously misstated the law, and more significantly, Ford does not challenge this instruction on appeal. Instead, the issue presented by Ford is the contention that the circuit court erred in ruling that the glazing claim was not preempted by FMVSS 205 and that this alleged defect could be considered by the jury. The present case falls squarely within the holding of Barber, supra. We will not presume prejudice under these circumstances.\"}"
\ No newline at end of file
diff --git a/arkansas/8718052.json b/arkansas/8718052.json
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--- /dev/null
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@@ -0,0 +1 @@
+"{\"id\": \"8718052\", \"name\": \"Jeter v. Everette\", \"name_abbreviation\": \"Jeter v. Everette\", \"decision_date\": \"1927-03-07\", \"docket_number\": \"\", \"first_page\": \"25\", \"last_page\": \"27\", \"citations\": \"173 Ark. 25\", \"volume\": \"173\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T00:14:40.755108+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Jeter v. Everette.\", \"head_matter\": \"Jeter v. Everette.\\nOpinion delivered March 7, 1927.\\nBasil Baker, for appellant.\\nHawthorne, Hawthorne & Wheatley, for appellee.\", \"word_count\": \"740\", \"char_count\": \"4323\", \"text\": \"Smith, J.\\nAppellee filed the following account in the court of J. D. Reeves, a justice of the peace:\\n\\\"Jonesboro, Ark., 1-9, 1925.\\n\\\"Lon Everette,\\n\\\"In account with E. 0. Hogue Battery Co.\\n1 rear fender.. 6.25\\nTelephone call..55\\nLabor.'. 7.00\\nWashing car. 1.50\\nTrans, grease . 1.00\\n$31.30\\nFor damage done on Essex Coach\\nUpon filing this account the justi.ce of the peace made the following entry upon his docket: \\\"The plaintiff filed before me a cause of action against the defendant for $31.30 as follows, to-wit: Repair on automobile as damages,-\\\" and issued a summons to appellant Will Jeter to appear and make answer in a cause of action filed against him. Jeter appeared, and prayed a change of venue,' which was granted, and, upon trial, judgment was rendered in appellee's favor for the amount of the account.\\nAppellant duly prosecuted an appeal to the circuit court, where a more formal complaint was filed, but which left blank the amount of damages alleged to have been sustained. Appellant filed a motion to dismiss the complaint filed in the circuit court, and that motion was sustained, and the cause went to trial upon the transcript filed on the appeal from the justice court. There was a verdict and judgment for the amount of the account, from which is this appeal.\\nIt is earnestly insisted that no sufficient statement of the cause of action was filed with the justice of the peace to confer jurisdiction upon that court, and that the circuit court acquired no jurisdiction on the appeal.\\nNo motion to make the account filed with the justice more definite and certain was filed. .A change of venue was asked and granted, -and the cause was heard by the justice on its merits. This being true, the case of Austin v. Hemphill, 170 Ark. 945, 282 S. W. 1, applies, and the circuit court properly refused to dismiss the cause of action. In the case cited it was said:\\n\\\"The court had jurisdiction of the subject-matter of the action, and the parties, by entering their appearance to the proceedings, gave the court jurisdiction over their persons. The facts recited in the judgment entry show that they were not misled in preparing their defense. # Actions may be commenced either by summons or by the voluntary appearance of the parties. Here the parties appeared in court and contested the claim of the plaintiff, and the circuit court properly overruled their motion to dismiss the appeal. The alleged defect in the issuance of the summons before filing the account or a short written statement of facts was waived by going to trial and judgment without at any stage of the cause bringing the matter to the attention of the justice. ' ' '\\nSee also Fitch v. Walls, 169 Ark. 745, 276 S. W. 578.\\nIt appears from the testimony offered at the trial from which this appeal comes that the account filed with the justice covered the cost of repairs to appellee's auto mobile sustained in a collision with appellant's automobile.\\nThe cause was submitted to the jury under instructions to which no objections were made. These instructions required the jury to find, before returning a verdict for the plaintiff, that appellant's car was being driven at a speed so great as to constitute negligence and that this negligence was the proximate cause of the injury. The testimony presented this issue, and was sufficient to support the finding of the jury that appellant was negligent in this respect.\\nAs has been said, the jury returned a verdict for the full amount of the account sued on, and it is pointed out that the account ipcluded the following items:\\nTelephone call.$0.55\\nWashing car. 1.50\\nTransmission grease. 1.00\\nThe appellee testified that he paid the battery company which repaired the car the amount of the bill, $31.30, and that it was necessary to repair the wheel and fender, but there was no testimony whatever tending to show that the telephone call, or washing the car, or greasing it, were necessary expenses in restoring the car to the condition it Avas in before the collision. For the lack of testimony to support the recovery of these items the judgment must be modified to exclude them, but, as no other error appears, the judgment as thus modified mil be affirmed.\"}"
\ No newline at end of file
diff --git a/arkansas/8718136.json b/arkansas/8718136.json
new file mode 100644
index 0000000000000000000000000000000000000000..6ecf39b52aea3a65b6697425749575a742fc0929
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+"{\"id\": \"8718136\", \"name\": \"BOONE COUNTY, ARKANSAS, d/b/a HILLCREST NURSING HOME, et al. v. APEX OF ARKANSAS, INC., et al.\", \"name_abbreviation\": \"Boone County v. Apex of Arkansas, Inc.\", \"decision_date\": \"1986-02-03\", \"docket_number\": \"85-279\", \"first_page\": \"152\", \"last_page\": \"156\", \"citations\": \"288 Ark. 152\", \"volume\": \"288\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T02:30:22.676666+00:00\", \"provenance\": \"CAP\", \"judges\": \"Purtle, J., not participating.\", \"parties\": \"BOONE COUNTY, ARKANSAS, d/b/a HILLCREST NURSING HOME, et al. v. APEX OF ARKANSAS, INC., et al.\", \"head_matter\": \"BOONE COUNTY, ARKANSAS, d/b/a HILLCREST NURSING HOME, et al. v. APEX OF ARKANSAS, INC., et al.\\n85-279\\n702 S.W.2d 795\\nSupreme Court of Arkansas\\nOpinion delivered February 3, 1986\\nRobert L. Brown, for appellant Boone County, Arkansas.\\nSteve Clark, Att\\u2019y Gen., by: George A. Harper, Special Asst. Att\\u2019y Gen., for appellant Arkansas Health Planning and Development Agency.\\nGill, Skokos, Simpson, Buford & Graham, P.A., by: Harold H. Simpson, II.\", \"word_count\": \"917\", \"char_count\": \"5598\", \"text\": \"Darrell Hickman, Justice.\\nThe Pulaski County Circuit Court issued a. writ of mandamus ordering the Arkansas Health Planning and Development Agency to issue certificates of need to eight nursing homes. The court erred in issuing this writ because the matter was still in the process of administrative review and appeal and no clear duty existed to issue the certificates until the procedure was over.\\nThe appellants are the state agency AHPDA ordered to issue the certificates and Hillcrest Nursing Home of Harrison. The appellees are eight of sixteen nursing homes awarded the right to have new beds.\\nIn August, 1984, the Statewide Health Coordinating Council lifted a moratorium on nursing home beds and approved the need for 481 new beds in Northwest Arkansas. Forty-five nursing homes applied for the new beds. On February 28, 1985, the appellant state agency approved 16 of the applications, allotting all the new beds. Twenty-nine applications were denied. Hill-crest's request for 33 beds was one of those denied.\\nWithin 30 days, as required by regulation, Hillcrest asked for administrative review of the decision. Hillcrest also timely asked the agency to reconsider its decision, but the reconsideration was denied. Hillcrest took the position that the entire allocation of beds was being contested. The agency agreed because the contest by Hillcrest would necessarily mean that some nursing homes granted new beds would lose them if Hillcrest prevailed. So the agency decided in writing that the decision on the entire allocation was at issue and the issuance of the certificates of need must be delayed pending review.\\nThe agency requested the governor to appoint a state agency to conduct the administrative review on May 31, 1985. The Department of Finance and Administration was appointed on June 21, 1985, and a hearing officer was appointed August 14, 1985.\\nPending review, this suit was filed in circuit court on August 9,1985. The relief sought was mandamus which is a writ to require, in this case, a state agency to perform an act which is an established, clear and specific legal right. Chandler v. Perry-Casa Public Schools, 286 Ark. 170, 690 S.W.2d 349 (1985). It must be to enforce the performance of a legal right after it has been established and not to establish a right. Wells v. Purcell, 267 Ark. 456, 592 S.W.2d 100 (1979). There must be no discretion available to the ordered party to perform the act. Chandler v. Perry-Casa Public Schools, supra.\\nThere is no doubt that the appellant agency is empowered to issue the certificates. The question is when. The regulations provide that any decision by the state agency to issue or deny a certificate of need, upon request, will be reviewed by an independent state agency appointed by the governor. In such a case the decision by the reviewing agency is deemed the final decision.\\nIt is the appellees' assertion that the request for the review in this case only concerned the denial of Hillcrest's beds; the approval of the appellees' beds was not part of that request for review. So, as to the appellees, the argument is made that the order was final.\\nThat raises the question of whether the agency was right in treating this as a review of the decision made regarding all applications and all 481 beds. Hillcrest immediately notified the appellant agency that it considered all applications in issue. The agency agreed. We have stated that although the agency's interpretation of its own rules is persuasive, it is not binding upon the court. The interpretation will be controlling unless plainly erroneous or inconsistent. Clinton v. Rehab Hospital Services Corp., 285 Ark. 393, 688 S.W.2d 272 (1985). In a letter from the director of the agency to the attorney for the appellee nursing homes, it was stated:\\nSince all beds were allocated, the reversal of a denial would require the reduction or reversal of an approval: i.e., if Mr. Brown [Hillcrest's attorney] succeeds in gaining beds for his client then another applicant or applicants will lose beds. Thus, the appeal of any denial must be regarded as an appeal of all approved applications.\\nThe agency based its decision on Statewide Health Coordinating Council v. General Hospitals of Humana, Inc., 280 Ark. 443, 660 S.W.2d 906 (1983). In that case we held that AHPDA was without authority to issue certificates of need for the construction of beds which exceed the number established by the state health plan. The agency, correctly in our judgment, decided that if Hillcrest were awarded any beds they had to come from the 481 allotted. So, the nursing homes granted beds were necessarily affected by the review proceedings and could not receive their certificates of need until Hillcrest's complaint was resolved. Since the review was in process when this writ was granted, no clear duty existed for the agency to issue the certificates. The appropriate remedy for the appellees was not to seek mandamus; instead they must await the review process. Mandamus is improper when there is an adequate alternative remedy, which in this case was administrative review.\\nReversed and dismissed.\\nPurtle, J., not participating.\"}"
\ No newline at end of file
diff --git a/arkansas/8719208.json b/arkansas/8719208.json
new file mode 100644
index 0000000000000000000000000000000000000000..3c317db5f13ed949c54775a128ec24e45ca816fd
--- /dev/null
+++ b/arkansas/8719208.json
@@ -0,0 +1 @@
+"{\"id\": \"8719208\", \"name\": \"Jones v. Ross\", \"name_abbreviation\": \"Jones v. Ross\", \"decision_date\": \"1929-03-04\", \"docket_number\": \"\", \"first_page\": \"116\", \"last_page\": \"118\", \"citations\": \"179 Ark. 116\", \"volume\": \"179\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T02:28:50.587442+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Jones v. Ross.\", \"head_matter\": \"Jones v. Ross.\\nOpinion delivered March 4, 1929.\\nA. F. Auer, for appellant.\\nFeasel & Steel, for appellee.\", \"word_count\": \"416\", \"char_count\": \"2447\", \"text\": \"Kirby, J.\\nEldridge Ross, residing in Howard County, executed two chattel mortgages on the same property, a cow and a bog, the first to appellant on the 20th day of January, 1927, to secure $50 due October 15, 1927, and the other to appellee on the.day of.....~. The mortgagor then moved with his family to Hempstead County before either mortgage was recorded, where he has since resided and was employed at the time of the trial.\\nAppellant filed his mortgage on the 28th day of November, 1927, not to be recorded, and appellee filed his mortgage, also in Howard County, shortly after it was executed, and before the filing of appellant's mortgage.\\nAppellant recovered judgment for the possession of the cow in the replevin suit in the justice court, and the case was appealed to the circuit court. At this trial the mortgagor testified that he had returned the truck purchased from appellant \\u2014 which was denied \\u2014 to secure payment of the purchase price for which the mortgage was given, before the execution of the second mortgage to his father, whom he owed the debt secured by it. The court instructed the jury, and from the judgment on the verdict against him appellant prosecutes this appeal.\\nAppellant insists that the court erred in not directing a verdict in his favor, since his mortgage was first executed, and neither of the mortgages was a lien, not having been recorded in the county of the residence of the mortgagor.\\nIf the mortgagor had not changed his residence from Howard to Hempstead County before the mortgages were recorded in Howard County, where made, the second mortgage, the une to appellee, would have constituted a prior'lien against the property anyway, being first recorded there. Merchants' & Farmers' Bank v. Citizens' Bank, 125 Ark. 131, 187 S. W. 650. See Smith v. Union County, 178 Ark. 540, 11 S. W. (2d) 455.\\nSince the jury found, however, from virtually undisputed testimony, that-the mortgagor was a resident of Hempstead County when the mortgages were recorded in Howard County (Smith v. Union County, 178 Ark. 540, 11 S. W. [2d] 455), in a suit in replevin between the mort gagees, neither mortgage being a lien, with the second mortgagee in possession of the pnoperty, he was entitled, of course, to prevail, as the jury correctly found.\\nWe find no error in the record, and the .judgment is affirmed.\"}"
\ No newline at end of file
diff --git a/arkansas/8720562.json b/arkansas/8720562.json
new file mode 100644
index 0000000000000000000000000000000000000000..99cb62a923714dec861b86c694fe6a7ec25a984d
--- /dev/null
+++ b/arkansas/8720562.json
@@ -0,0 +1 @@
+"{\"id\": \"8720562\", \"name\": \"York v. State\", \"name_abbreviation\": \"York v. State\", \"decision_date\": \"1932-10-10\", \"docket_number\": \"Cr. 3820\", \"first_page\": \"260\", \"last_page\": \"261\", \"citations\": \"186 Ark. 260\", \"volume\": \"186\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T19:37:28.409108+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"York v. State.\", \"head_matter\": \"York v. State.\\nCr. 3820\\nOpinion delivered October 10, 1932.\\nJ. S. McConnell and Geo. R. Steel, for appellant.\\nHal L. Norwood, Attorney General, for appellee.\", \"word_count\": \"202\", \"char_count\": \"1072\", \"text\": \"Per Curiam.\\nThe bill of exceptions in the instant case is identical with the one held insufficient in the case of Ward v. State, 135 Ark. 259, 204 S. W. 971. In this case, as in that the hill of exceptions was signed by the prosecuting attorney and counsel for appellant, but had not been submitted to nor approved by the trial judge. The appellant in each case had been convicted of a felony. It was there held that it is necessary that a bill of exceptions in a case where defendant has been convicted of a felony be signed by the trial judge, and that the bill of exceptions did not become a part of the record until it was so signed.\\nThe errors complained of in the instant case, like those in the Ward case, supra, are such as must be brought into the record by a proper bill of exceptions, and, as no error appears in the absence of a bill of exceptions, the judgment must be affirmed, and it is so ordered.\"}"
\ No newline at end of file
diff --git a/arkansas/8721494.json b/arkansas/8721494.json
new file mode 100644
index 0000000000000000000000000000000000000000..ea1d9a3a4cb6a89f3b37f61297d56707ed765e6d
--- /dev/null
+++ b/arkansas/8721494.json
@@ -0,0 +1 @@
+"{\"id\": \"8721494\", \"name\": \"DeSoto Life Insurance Company v. Barham\", \"name_abbreviation\": \"DeSoto Life Insurance v. Barham\", \"decision_date\": \"1946-10-14\", \"docket_number\": \"4-7955\", \"first_page\": \"467\", \"last_page\": \"471\", \"citations\": \"210 Ark. 467\", \"volume\": \"210\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T02:50:17.077637+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"DeSoto Life Insurance Company v. Barham.\", \"head_matter\": \"DeSoto Life Insurance Company v. Barham.\\n4-7955\\n196 S. W. 2d 592\\nOpinion delivered October 14, 1946.\\nAdams <& Willemin, for appellant.\\nHolland & Taylor, for appellee.\", \"word_count\": \"1233\", \"char_count\": \"6948\", \"text\": \"McHaNby, Justice.\\nAppellee brought this action in the common pleas court against .appellant to recover $500 on a policy of- disability insurance issued to him by it. By the terms of the policy appellant agreed to pay appellee $200 per month for total disability and $100 per month for partial disability. The complaint alleged that be bad sustained an injury to bis eye on or about October 21, 1944, from the effects of which be became totally disabled on or about November 7,-1944, and such total disability continued to January 20, 1945, a total of two and one-half months, and was partially disabled for more than three months thereafter; that appellant has paid him $300 on the amount due him under the policy; and that he is entitled to recover $500 for total disability and $300 for partial disability, or a total of $800, less the amount ' already paid of $300, or a balance of $500, for which, he prayed judgment, with costs, penalty and attorney's fee.\\nFor answer appellant filed a general denial, after admitting the issuance of the policy sued on. It also plead said payment of $300 made on January 24, 1945, by draft of its adjuster ,on appellant, as being in full and complete satisfaction of all claims of appellee for his eye injury as evidenced by a written release on the back of said draft in these words: \\\"In full and complete settlement for eye injury, received on or about November 6, 1944,'' which draft appellee indorsed under said release and deposited same to his credit in his bank. Other\\\" defenses were set up, reference to which will be hereinafter made.\\nTrial in the common pleas court resulted in a judgment against appellant for $500, and penalty and attorney's fee. On appeal to the circuit court, the case was tried by agreement before the court sitting as a jury and resulted in a judgment against appellant for $400 \\u00e1nd costs. This appeal followed, and appellee cross-appealed.\\nFour arguments are made for a reversal of this judgment, only one of which merits serious consideration. Minor contentions are that appellee failed to pay the premium due on the policy on December 20,1944, and that it lapsed on said date. A simple answer to this is that admittedly appellant owed appellees a sum largely in excess of the premium due at that time, for on January 24, 1945, it paid him $300, on account of disability existing both before and after December 20, 1944, thus treating the policy as not having lapsed, but as being in full force and effect. Another is that appellee failed to comply with the policy by making proof of loss. This, if not done, was waived by making payment without requiring proof. So, also, is the contention waived that appel-lee was not attended at least once each week by a physician, as the policy required.\\nAs stated above, the principal and most serious assignment of error argued by appellant is that it made a full, complete and final settlement with appellee, as evidenced by the typewritten release on the back of the draft given Mm on January 24,1945, for $300, which was indorsed by appellee in bis own bandwriting. Appellee is a reputable and well known lawyer of long standing in tbe city of Blytbeville, being 69 years old at tbe time of trial. He testified positively that be did not see tbe release on tbe back of tbe draft; that be was struck in tbe eye by some foreign object about October 21, 1944, and from November 7 thereafter was completely disabled for two and one'-balf months and partially disabled for more than three months; that be was under tbe care of a physician most of tbe time and for a short time was in a hospital in Memphis, Tennessee; that when tbe draft was delivered to him by' tbe adjuster, there was very little discussion between them at tbe time about appel-lee's claim/ Tbe adjuster said be told appellee, \\\"You have two months' total disability and one month's partial, according to your doctors' reports. He said, 'That is satisfactory.' So I asked tbe privilege of using bis stenographer, bad her write this draft up, and write tbe release on tbe back. I banded it to Judge Barham and left town. That is all that pertained to tbe case at that time.\\\"\\nAppellee says be thought this was a payment on account and that nothing was said to indicate that it was a full and complete settlement, which was not intended as be was not then well, but was still partially disabled and being treated by tbe doctor. According to tbe adjuster himself, tbe payment made did not cover tbe full amount then due for two months total and one month partial disability, or $500, which be saj^s he told appel-lee was due Mm, thus corroborating appellee that it was a payment on account and was made for a part of tbe liability already accrued, about which there was no dispute, and this payment and tbe so-called release itself cannot be construed as a consideration for a release of liability already accrued and thereafter accruing for partial disability.\\nIt is also undisputed that-appellee and the adjuster bad no discussion about a settlement in full and there was no mention of a release in full or of a release of any kind, and appellee says that bad be known that tbe pay ment was made as one in full, it would not have been accepted. It is significant that the adjuster testified, as above quoted, that appellee was entitled to pay for two months' total and one month's partial disability, or a total of $500 then due, to which appellee agreed, and then immediately gave him a draft for only $300, leaving a balance then due of $200.\\nWe think the trial court was justified by the evidence in finding that the payment was not made and accepted as one in full and in rendering judgment against appellant for the additional sum of $400. A question of fact for the jury was made and the finding of the court sitting as a jury is just as binding as the verdict of a jury-\\nOn the cross-appeal but little need be said. The finding of the court of the duration of appellee's disability is binding on him. While his testimony is that he had two and one-half months of total disability and more than three months of partial disability, the court was not required to find for him for the full amount he claimed, even though no one testified to the contrary.\\nThe trial court probably found, or at least it was justified, in finding that appellant owed appellee $200, balance due on the January 24, 1945, payment, and two months' partial disability of $100 each, or a total of $400. Appellee did not pay either of the December or March quarterly premiums of $37 each, or a total of $74, which should be deducted from the judgment of $400, leaving a balance of $326 with interest at 6 per cent, from the date of the judgment. The judgment will be modified to this extent, and as so modified, is affirmed.\"}"
\ No newline at end of file
diff --git a/arkansas/8721738.json b/arkansas/8721738.json
new file mode 100644
index 0000000000000000000000000000000000000000..47b7f62449e9b4cd51ffaee211ea0389c82a7371
--- /dev/null
+++ b/arkansas/8721738.json
@@ -0,0 +1 @@
+"{\"id\": \"8721738\", \"name\": \"George Allen PETERS v. STATE of Arkansas\", \"name_abbreviation\": \"Peters v. State\", \"decision_date\": \"1985-07-08\", \"docket_number\": \"CR 85-96\", \"first_page\": \"421\", \"last_page\": \"425\", \"citations\": \"286 Ark. 421\", \"volume\": \"286\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T23:29:34.621120+00:00\", \"provenance\": \"CAP\", \"judges\": \"Dudley and Smith, JJ., not participating.\", \"parties\": \"George Allen PETERS v. STATE of Arkansas\", \"head_matter\": \"George Allen PETERS v. STATE of Arkansas\\nCR 85-96\\n692 S.W.2d 243\\nSupreme Court of Arkansas\\nOpinion delivered July 8, 1985\\nDarrell E. Baker, Jr., Deputy Public Defender, for appellant.\\nSteve Clark, Att\\u2019y Gen., by: Velda P. West, Asst. Att\\u2019y Gen., for appellee.\", \"word_count\": \"1116\", \"char_count\": \"6692\", \"text\": \"David Newbern, Justice.\\nGeorge Allen Peters was charged with violation of Ark. Stat. Ann. \\u00a7 75-2503 (Supp. 1983). The information alleged a felony offense of driving while intoxicated and recited that Peters had been convicted of DWI on three occasions. A jury convicted Peters of the offense charged, and he was sentenced to imprisonment for eighteen months and fined $5,000.\\nWe must reverse this conviction for two reasons. First, there was insufficient evidence that Peters was assisted by counsel in one of the three prior convictions alleged. Secondly, the court did not allow the jury to determine the existence of the prior convictions.\\n1. Evidence of Counsel\\nThe trial court accepted as evidence of one of the three prior convictions a certified transcript of the Farmington, Arkansas, municipal court docket showing that Peters was convicted of DWI, third offense, on September 15, 1982. The docket transcript was silent as to whether Peters had been represented or had waived representation by counsel. If the record is silent as to representation or waiver the conviction cannot be used as evidence that the offense charged in this case is the fourth DWI offense and thus a felony under the statute. Baldasaar v. Illinois, 446 U.S. 222 (1980); Lovell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984).\\nThe only evidence presented by the state to show that Peters was represented by counsel at his third offense trial was a copy of a letter from a law student to the judge who presided at that trial. The letter shows Peters to have been represented by the student. The clerk of the Farmington City Court has entered a certification on the copy saying it is \\\"true and correct,\\\" but she does not say that the original is a record of the court.\\nIn a letter to the deputy prosecutor who tried the case before us now, the Farmington City Court clerk stated that the law student who signed the letter to the judge represented Peters under the supervision of a named, licensed attorney pursuant to our student practice rule. This letter bears no certification as being a public record.\\nIn response to the appellant's contention that these letters are hearsay, the state cites Williford v. State, 284 Ark. 449, 683 S.W.2d 228 (1985), as authority that a certified copy of a document showing representation by counsel is sufficient proof. In that case we held that a photocopy of a docket sheet certified by a court clerk as being \\\"an accurate record of the proceedings\\\" and showing waiver of the right to counsel was sufficient.\\nIn this case the only evidence that Peters was represented by an attorney was the letter from the clerk to the deputy prosecutor. This letter was not certified by the court clerk and it is not even part of the court record.\\nWe hold this letter is insufficient evidence that Peters was assisted by counsel at the trial of his third DWI conviction. Since there is not sufficient evidence of representation, Peters' third conviction cannot be used as evidence that the conviction before us now is his fourth.\\n2. Number of Prior Convictions\\nThe trial court ordered a bifurcated trial. The jury first heard evidence to determine whether the appellant was driving while intoxicated on the occasion alleged. After the jury returned a guilty verdict, the judge heard evidence in chambers to determine the number of prior convictions, and then he instructed the jury that the range of sentences should be based on three prior convictions. The trial court based this procedure on Ark. Stat. Ann. \\u00a7 41-1005 (Supp. 1983), as the Omnibus DWI Act of 1983 does not provide the procedure for bifurcation. Section 41-1005 provides that the jury will first hear evidence as to the guilt or innocence of the defendant. If the jury finds the defendant guilty, the trial court will hear evidence of the defendant's previous convictions and determine the number of prior convictions. The trial court will then instruct the jury as to the number of previous convictions. The jury will retire again to determine a sentence.\\nSection 41-1005 is inapplicable to the Omnibus DWI Act because it applies only to the determination of habitual offender status pursuant to Ark. Stat. Ann. \\u00a7 41-1001 (Supp. 1983). That statute provides extended terms of imprisonment for those who have committed more than one but less than four felonies. Appellant has three previous convictions, but they are all misdemeanors under the DWI Act. Under the sentencing enhancement statutes followed by the judge, the previously committed felonies do not constitute an element of the offense charged.\\nAppellant contends that the existence of three prior convictions constitutes an element of DWI, fourth offense, and thus the trial court deprived him of his right to have the jury determine a material element of the offense charged. We agree. The fact of three prior convictions is an element of the felony DWI fourth offense as defined by Ark. Stat. Ann. \\u00a7 75-2504(3) (Supp. 1983). In State v. Brown, 283 Ark. 304, 675 S.W.2d 822 (1984), we allowed the state to amend an information to charge DWI, first offense, instead of DWI, fourth offense. We said the state could amend to conform to the proof when the amendment does not change the nature or degree of the offense. In that case the amendment was obviously not prejudicial to the accused. We would not have permitted an amendment of an information alleging DWI, first offense, to one alleging DWI, fourth offense, because the additional element of three previous convictions, making the offense charged a felony, would constitute a matter on which the accused would be required to prepare for trial.\\nWhile the felony sentencing enhancement statutes do not apply, we agree the trial should be bifurcated. The jury must first hear evidence of guilt or innocence. If the defendant is found guilty of the instance of DWI alleged, the jury will then hear evidence of previous convictions. The trial judge will still determine whether the accused was represented by, or entered a valid waiver of, counsel in the previous convictions alleged and will exclude evidence of any conviction not meeting the counsel requirement. This procedure protects the defendant from prejudice by preventing the jury from considering the three prior convictions during their initial determination of guilt or innocence. Heard v. State, 272 Ark. 140, 612 S.W.2d 312 (1981).\\nReversed.\\nDudley and Smith, JJ., not participating.\"}"
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diff --git a/arkansas/8722457.json b/arkansas/8722457.json
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+"{\"id\": \"8722457\", \"name\": \"Claude WILLIAMS et al v. Russell ELROD et al\", \"name_abbreviation\": \"Williams v. Elrod\", \"decision_date\": \"1968-04-22\", \"docket_number\": \"5-4620\", \"first_page\": \"671\", \"last_page\": \"676\", \"citations\": \"244 Ark. 671\", \"volume\": \"244\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T01:03:04.630347+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Claude WILLIAMS et al v. Russell ELROD et al\", \"head_matter\": \"Claude WILLIAMS et al v. Russell ELROD et al\\n5-4620\\n426 S. W. 2d 797\\nOpinion delivered April 22, 1968\\nOdell Pollard and Darrell Hickman, for appellants.\\nRose, Meek, House, Barron, Nash & Williamson, for appellees.\", \"word_count\": \"1260\", \"char_count\": \"7849\", \"text\": \"Lyle Brown, Justice.\\nThe plaintiff-appellants are taxpayers, residents, and electors of twenty-five of the State's senatorial districts. The defendant-appellees constitute all State Senators. Plaintiffs below sought a writ of mandamus to require the thirty-five senators to draw lots to fix their terms of office at two or four years in accordance with Sec. 6 of Art. 23 of our Constitution. The case was submitted on the pleadings, requests for admissions and responses, stipulations, and motion for summary judgment. Plaintiffs' motion for summary judgment was denied and the complaint dismissed.\\nIn Block v. Allen, 241 Ark. 970, 411 S. W. 2d 21 (1967) we explained the history of the senatorial apportionment provisions of our Constitution and the pertinent decisions of this court. That explanation need not here be detailed; reference is made for the benefit of interested parties. However, for clarity we should reiterate that Amendment 23 requires senatorial drawing by lot following reapportionment after' each federal census. At the drawing eighteen senators would draw terms of two years and the remainder would draw terms of four years.\\nThe taxpayers contend there is no conflict between the cited provisions of Amendments 23 and 45 (which fixes senatorial terms at four years); there being no conflict, they assert that since there was a reapportion ment as directed by Yancey v. Faubus, 238 F. Supp. 290 (E. D. Ark. 1965), there should be an immediate drawing by the twenty-six senators not affected by the decision in Catlett v. Jones, 240 Ark. 101, 398 S. W. 2d 229 (1966). The nine senators in Catlett were elected to four-year terms in 1964. Their districts were not altered by the court-ordered reapportionment resulting from Yancey v. Faubus. We therefore held they could serve the remainder of their terms. Contra, the senators assert that Amendment 45 gives them an unqualified right to serve four years, superseding the required lot-drawing provisions of Amendment 23. Alternatively, the senators contend that lot-drawing is not required as a consequence of a court-ordered apportionment, and specifically that any drawing is restricted to every ten years following the regular federal census.\\nFirst, we dispose of the contention that Sec. 6 of Amendment 45 nullifies the lot-drawing provisions of Amendment 23. The involved portion of Amendment 45 reads as follows:\\n\\\"At the next general election for the State and County officers ensuing after any such apportionment, Representatives shall be elected in accordance therewith, Senators shall be elected henceforth according to the apportionment now existing, and their respective terms of office shall begin on January 1 next following. Senators shall be elected for a term of four years at the expiration of their present terms of office.\\\" (Emphasis supplied.)\\nFour-year terms for senators, reapportionment, and drawing by lots are thoroughly embedded in our law. Those principles are found in every Arkansas Constitution, four in all, since 1836. Having been harmonized for 131 years, it is not reasonable to believe that the electorate intended to sever those provisions merely by approving the customary four-year term for senators. Repeal by implication is not favored.\\nThe contention that Amendment 45 eliminates drawing by lot would in effect defeat redistricting. That is true because without Amendment 23 there would never be a time when all senate terms expired simultaneously. In effect the senatorial districts would be frozen, a result which was declared unconstitutional in Yancey v. Faubus.\\nWe encounter no difficulty in harmonizing the two provisions, that is, the four-year term in Amendment 45 and the lot-drawing provision in Amendment 23. We agree with the statement in the concurring opinion in Block v. Allen, that the decision in Ycmcey v. Faubus did not affect Sec. 6 of Amendment 23.\\nIt is next contended by the taxpayer-appellants that Sec. 6 of Amendment 23 is applicable to the 1965 reapportionment made pursuant to the decision in Ycmcey v. Faubus. If that contention is correct, an immediate drawing would be required, rather than wait until the 1970 federal census.\\nThe only administrative procedure in our constitution requiring members of the Senate to be \\\"divided into two classes by lot\\\" is Sec. 6 of Amendment 23, which provides:\\n\\\". . . At the first regular session succeeding any apportionment so made, the Senate shall be divided into two classes by lot, eighteen of whom shall serve for a period of two years and the remaining seventeen for four years, after which all shall be elected for four years until the next reapportionment hereunder. ' '\\nThe apportionment referred to in Sec. 6 is defined in Sec. 4 as being the apportionment immediately following each federal census:\\n\\\"The Board [of Apportionment] shall make the first apportionment hereunder within ninety days from January 1, 1937; thereafter, on or before February 1 immediately following each Federal census, said Board shall reapportion the State for both Representatives and Senators .\\\"\\nIt must he conceded that those provisions amount to a restriction upon the length of the terms of office for which some of the senators are elected. However, that provision, being in the Constitution, is well known to all senatorial candidates and they cannot complain if they become affected by it. But we do not think an additional restriction should he placed on their tenure in the absence of constitutional sanction.\\nIn Butler v. Democratic State Committee, 204 Ark. 14,160 S. W. 2d 494 (1942), this court held that the election of an entirely new senate should he conducted after the federal census and then only when the Board of Apportionment altered the boundaries of any of the senatorial districts. In Catlett v. Jones, supra, we declined to shorten the elected terms of office of the involved nine senators. They were found to have been elected \\\"in accordance with the Board's plan\\\" of reapportionment after Yancey v. Fembus, supra. Our holding today is in conformity with those two cases; to hold to the contrary would actually be inconsistent with Butler and Catlett. Furthermore, the problem now before us was fully explored when Block v. Allen, supra, was under consideration. There, as here, we had the benefit of exhaustive briefing, and the Block case was orally argued. In Block v. Allen we concluded there was \\\"logic and apparent merit\\\" in the theory of appellees that an immediate drawing was not then required. Additional consideration of the question has served only to strengthen that conclusion. Quoting from the concurring opinion in that case, it is our holding that \\\"there is no occasion for a drawing until at least after the 1970 Federal census has been taken.\\\"\\nWe would also point out that appellants seek a man datory drawing for twenty-six senators, whereas the Constitution requires that thirty-five senators participate.\\nIf any change is made by the Board of Apportionment (or by this court on appeal) in the boundaries of the senatorial districts as a result of the 1970 census, it will necessitate the election of an entirely new senate. The newly-elected senators would then draw for tenure as required by Sec. 6. Butler v. Democratic State Committee, supra.\\nWe express no opinion upon the right of a group of taxpayers to here litigate an action against the Senate. That question was not raised, in fact all parties here seek a full determination of the case on its merits.\\nFor the recited reasons we hold that the taxpayer-appellants' motion for summary judgment should have been denied and their complaint dismissed.\\nAffirmed.\"}"
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diff --git a/arkansas/8724708.json b/arkansas/8724708.json
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+"{\"id\": \"8724708\", \"name\": \"Taylor v. State\", \"name_abbreviation\": \"Taylor v. State\", \"decision_date\": \"1927-07-11\", \"docket_number\": \"\", \"first_page\": \"800\", \"last_page\": \"806\", \"citations\": \"174 Ark. 800\", \"volume\": \"174\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-11T00:59:40.348437+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Taylor v. State.\", \"head_matter\": \"Taylor v. State.\\nOpinion delivered July 11, 1927.\\nTom Kidcl. and Pinnix & Pimvix, for appellant.\\nII. W. Applegate, Attorney General, and John L.Carter, Assistant, for appellee.\", \"word_count\": \"1956\", \"char_count\": \"11205\", \"text\": \"Smith, J.\\nAppellant was indicted for seducing Carrie Whisenliunt, an unmarried female, was convicted at his trial, and has appealed. The first insistence for the reversal of the judgment of the court sentencing him to a term in the penitentiary is that the testimony failed to show that the female alleged to have been seduced was an unmarried person. The testimony shows, however, that the woman alleged to have been seduced had been reared in that community, and the witnesses all called her Miss Whisenhunt, and she was referred to as the daughter of Bob Whisenhunt. Appellant and all the other witnesses who testified in the case had long been acquainted with her, and she testified that appellant courted her and agreed to marry her, and, by virtue of this promise, had carnal knowledge of her, and that she had never had sexual intercourse with any other man. This testimony, we think, sufficiently supports the finding that Miss Whisenhunt was an unmarried person.\\nIt is also insisted that the testimony is not legally sufficient to support the conviction, in that the testimony of Miss Whisenhunt is not. corroborated either as to the promise of marriage or the act of sexual intercourse, both of which facts appellant denied.-\\nMiss Whisenhunt testified that appellant began to visit her the second Sunday in April, 1924, and that he called nearly every Sunday after that, and frequently spent Saturday evenings with her. That he courted her, and she foil 'in love with him, and that they became engaged on tlie second Sunday in May, and he asked her to have sexual intercourse with him, but she declined to yield, and he became angry and discontinued his visits for a few weeks, but he apologized for his request and resumed his visits, and they renewed their engagement. Appellant renewed his importunity that she have sexual intercourse with him, and insisted that it was not wrong, as they were going to marry, and she yielded because she loved him and believed he was going to marry her. This occurred the third Sunday in June, 1924. The acts of sexual intercourse were repeated, but always under and in reliance upon appellant's promise to marry her. Appellant continued his visits until September, when Miss Whisenhunt told him that she had become pregnant. Appellant declined to marry her, and went to Texas, and did not return until December. He then went to Colorado, where he remained until he was brought back to this State by the sheriff.\\nMiss Whisenhunt was corroborated as to the atten-lions paid her by appellant, and that, during this interval, his attentions were exclusive. Miss Whisenhunt gave birth to a boy child March 5, 1925.\\nT. A. Morphew testified that appellant told him in May, 1925, that he had come to see his wife, referring to Miss Whisenhunt, and that he was going to see her and give her $75 and then leave the country. Appellant asked witness to deliver this money, but witness declined to do so. On his cross-examination witness testified that appellant said he had come to see his wife and Clayton Pen-son's baby.\\n' J. W. Penson testified that he saw appellant after his return, and appellant asked him had I seen his boy; was he a fine boy; how did, he look? The child referred 1o was the baby to which Miss- Whisenhunt had given birth. This witness testified that appellant said he would not deny it being his boy, and was asking how did he look, and was he a fine boy. Witness told appellant the child was puny, and they did' not think it would live, and appellant answered that he did not give a d-if it would die.\\nB. A. Penson testified that appellant admitted to him that he told Miss Whisenhunt a lie when he promised to marry her.\\nAppellant admitted that he had loved Miss Whisen-hunt, and that, after the birth of the child, he had asked her why she was accusing him, and had also asked her if he was the father of the child, and that she had answered that it didn't make any difference whether he was the father of the child or not, she was going to send him \\\"over the road\\\" anyway.\\nWe think this testimony sufficiently corroborative of that of Miss Whisenhunt to meet the requirement of the law, that the testimony of a female alleged to have been seduced be corroborated by other evidence.\\nThe court gave only one of the instructions requested by appellant, the one given being to the effect that, although appellant had promised to marry the prosecuting witness, yet if the engagement was broken and he afterwards had intercourse without renewing his promise to marry, he would not be guilty of seduction. We have already said that Miss Whisenhunt admitted the engagement had been broken, but she also testified that it had been renewed, and that she yielded under the renewed promise.\\nOf the other instructions asked by appellant, several might well have been given, as they were correct declarations of the law as applied to the issues of fact in the case, but it appears that the instructions given fully and fairly declared the law applicable to all the issues of fact presented by the testimony.\\nThe instructions given by the court required the jury to find beyond a reasonable doubt, before convicting appellant, that he had obtained carnal knowledge of Miss Whisenhunt by virtue of a false express promise of marriage, and that, prior to.the act of intercourse, she was of chaste character, and the jury was directed to acquit the defendant if any reasonable doubt was entertained of the previous chaste character of the prosecuting witness, The jury was further instructed that it must he found beyond a reasonable doubt, before defendant could be convicted, that Miss Whisenhunt was induced to surrender her virtue through the promise of defendant to marry her, and that only, and that, if she had yielded her virtue for sexual pleasure, and not by reason of a promise of marriage, the defendant would not be guilty.\\nThe court also fully and correctly charged the jury as to the necessity for corroboration both as to the promise of marriage -and the act of sexual intercourse, and gave other instructions on the question of reasonable doubt and the presumption of innocence.\\nSeveral witnesses testified, on behalf of appellant, to the effect that they had had sexual intercourse with Miss Whisenhunt prior to the time of her alleged seduction, but it is evident from the verdict returned under the instructions given that the jury did not believe this testimony.\\nAppellant requested an instruction numbered 15, which reads as follows: \\\"You are instructed that the prosecuting witness is presumed to be chaste and virtuous and the defendant is presumed to be innocent, but the presumption of innocence is greater than the presumption of virtue.\\\"\\nIt is insisted that no other instruction given covered this phase of the case, and that it was error to refuse this instruction.\\nAt \\u00a7 61 of the chapter on \\\"Seduction\\\" in 24 R. C. L., page 777, it is said :\\n\\\"Much conflict of opinion has resulted in determining whether, in the prosecutions for seduction, the burden of proof rests on the State to prove the chastity of the woman seduced, or on the defendant to prove her want of chastity. In favor of the former position, it is contended that the State must establish every element of the offense beyond a reasonable doubt, and the chastity of the woman is one of the essential elements. On the other hand, it is contended that a woman is presumed to be chaste until the contrary is shown. The majority rule favors the latter view; hence, the chastity of the woman is presumed in the first instance, and the defendant must introduce evidence of unchastity in order to take advantage of the defense. In support of this position it is contended that, while the law presumes the prisoner innocent until proved guilty, it does not follow that the State can use no presumptions.\\\"\\nOur case of Caldwell v. State, 73 Ark. 139, 83 S. W. 929, 108 Am. St. Rep. 28, is cited as supporting' what is there said to be the majority rule. This Caldwell case reviewed the authorities on the subject, and particularly the previous opinions of this court in the cases of Polk v. State, 40 Ark. 486, 48 Am. Rep. 17; McArthur v. State, 59 Ark. 431, 27 S. W. 628; and Walton v. State, 71 Ark. 398, 75 S. W. 1, in which last mentioned case it had been held that an indictment for seduction is bad which fails to allege that the prosecutrix was of previous chaste character.\\nThis.holding in the Walton case was modified in the Caldwell case, where it was held that it was not essential to allege the previous chastity of the prosecutrix, nor prove it, as there was a presumption of chastity. The holding in the Caldwell case was that the lack of chastity was an affirmative defense which the defendant might offer, and that, when made, the burden was on him to establish it, because of the presumption of chastity.\\nNumerous later cases have held that it was not improper to charge the jury that there was a presumption of chastity, although there was also a presumption of innocence. Sutton v. State, 163 Ark. 468, 260 S. W. 409; Taylor v. State, 113 Ark. 520, 169 S. W. 341; Wilhite v. State, 84 Ark. 67, 104 S. W. 531; Rucker v. State, 77 Ark. 23, 90 S. W. 151.\\nThere is no conflict in the two presumptions. The presumption of chastity relates only to the burden of proof. Chastity need not be alleged in an indictment, nor need it be proved at the trial, because it is presumed. It may be shown that it does not exist, and that burden is on the defendant who offers that defense, just as the burden of proof'of an alibi is on the defendant who interposes that defense. But the accused is clothed with a presumption of innocence, notwithstanding the burden of establishing an affirmative defense when he interposes it, but the fact that he is presumed to be innocent does not relieve him of the burden of establishing an affirmative defense.\\nThe instruction is argumentative and is confusing, for the reason that it appears to tell the jury that the indulgence of the presumption of innocence relieves the accused of the burden of establishing the affirmative defense of a lack of chastity.\\nAn instruction numbered 2, given by the court, reads as follows:\\n'You are instructed that the prosecuting witness is presumed to be of chaste character, and the burden of proving that she was unchaste at the time of the alleged seduction is upon the defendant; but the burden is on the State upon the whole case to prove the defendant guilty from all the evidence in the case, beyond a reasonable doubt.' If you have a reasonable doubt that the prosecutrix was of previous chaste character, you will acquit the defendant. ' '\\nIt thus appears that, while the jury was instructed that the burden was on the accused to show that the prosecutrix was unchaste, he was given the full benefit of the presumption of innocence with which the law clothed him.\\nThere was no error in refusing to give this instruction.\\nWe find no error in the record, and the judgment must be affirme/d, and it is so ordered.\"}"
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diff --git a/arkansas/8725436.json b/arkansas/8725436.json
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+"{\"id\": \"8725436\", \"name\": \"Temple et al. vs. Lawson\", \"name_abbreviation\": \"Temple v. Lawson\", \"decision_date\": \"1857-07\", \"docket_number\": \"\", \"first_page\": \"148\", \"last_page\": \"155\", \"citations\": \"19 Ark. 148\", \"volume\": \"19\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T22:17:48.836725+00:00\", \"provenance\": \"CAP\", \"judges\": \"Absent, Mr. Justice Scott.\", \"parties\": \"Temple et al. vs. Lawson.\", \"head_matter\": \"Temple et al. vs. Lawson.\\nThe giving of costs in equity is within the discretion of the Court, to be exercised upon a full consideration of all the circumstances of the case, and the situation of the parties: and that discretion, when exercised as to those costs in a suit which are denominated \\u201c general,\\u201d or properly \\u201ccosts in the cause,\\u201d cannot be controled or reversed on error.\\nIt seems to be a rule, permanently established by Courts of chancery, that they will, in no case free from fraud in the defendants, allow interpleaders their solicitor\\u2019s fee, to be paid generally, or out of the special fund brought into court.\\nApplications for costs should be made at the hearing, or before the decree; as, after the decree has passed and become final as to the party, the Court has no power to make him any allowance for costs.\\nWhere a bill is filed by a party having special funds in his hands, calling on those interested in the fund to interplead, a decree may pass, as to him, upon his depositing the fund in Court, and the cause progress as to the interpleading parties.\\nAppeal from the Circuit Court of Union county in Chancery.\\nHon. Abner A. Stith, Circuit Judge.\\nCarleton, for the appellants.\\nAfter the decree had passed, discharging the complainant, the Court had no power to award his costs, without showing error, mistake, or the like, in regard to his costs. 3 Danl. Ch. P. 1553.\\nThe parties interested in this fund could not, without notice, have their rights thus affected.\\nThat the Chancellor could not allow the interpleader his solicitor\\u2019s fee. Dunlap vs. Hubbard, 19 Ves. 205; 3 Danl. Ch. P. 1767; Dungey vs. Angove, 2 Ves. jr. 313; Dawson vs. Hard-castle, 1 Ves. jr. 368, notes; 3 Danl. Ch. P. 1767.\", \"word_count\": \"2717\", \"char_count\": \"15331\", \"text\": \"Mr. Justice Hanly,\\ndelivered the opinion of the Court.\\nOn the 9th June, 1853, the appellee, Lawson, filed his bill of interpleader, on the chancery side of the Union Circuit Court, making J. H. Temple & Co., Nelson, Bradley & Co., A. F. Dunbar & Co., J. H. Palmer & Co., Miles M. Temple, Henry C. Buckingham, James B. Kirtland, and William Holmes, defendants, and charging in his bill, in substance, that he, Lawson, on the 24th of February, 1852, made two writings obligatory, by which he bound himself to pay to J. H. Temple & Co., a portion of the defendants named in his bill, in notes, on solvent men, $5,669 89-100, on or beiore the 1st March, 1853, \\u2014 that on the 12th August, 1852, Nelson, Bradley & Co. other defendants in his bill, commenced their action of assump-sit by attachment, against the same J. H. Temple & Co., and also Miles M. Temple and Henry C. Buckingham, other defendants named in his bill, for $6200,-and garnisheed him, Lawson, on his indebtedness to J. H. Temple & Co., \\u2014 that, on the 11th December, 1852, A. F. Dunbar & Co., other defendants in his bill, commenced their action of assumpsit by attachment, against the same J. H. Temple & Co., for $500, and garnisheed him, Lawson, and his indebtedness to J. H. Temple & Co.; and that, on the 11th December, 1852, J. H. Palmer & Co., other defendants in his bill, commenced their action by attachment against the same J. H. Temple & Co., for $1500, and garnisheed him, Lawson, on his indebtedness to them \\u2014 that these several attachment suits were brought on the law side of the Union Circuit Court \\u2014 that, after the service of the writ of garnishment, sued out against him by Nelson, Bradley & Co., but before the service of the garnishments, sued out by A. F. Dunbar & Co., and J. H. Palmer & Co., he, Lawson, had, by letter from John H. Temple, one of the firm of J. H. Temple & Co., been notified that his writings obligatory had been assigned, but was not informed to whom \\u2014 that, in March, 1853, he had been notified by Messrs. Marr & Rainey, attorneys at law, resident in Union county, that they, as the attorneys of the defendant in his bill, J. H. Kirtland, held one of the writings for $4,- 660 63-100, and that they also held the other one for the defendant in his bill, William Holmes, to whom they had been, severally, respectively assigned \\u2014 that on the 14th April, 1853, Marr & Rainey, as attorneys for Kirtland and Holmes, instituted actions against him, Lawson, on their notes, so asserted to have been assigned to them, on the law side of the Union Circuit Court \\u2014 that all of said parties were persisting in their claims \\u2014 that he, Lawson, was greatly harrassed and annoyed, and would be put to great cost, expense, trouble and vexation in the litigation and defence of the several suits which had been-brought and instituted, involving his indebtedness to the defendants, J. H. Temple & Co., and the several cross and conflicting suits, brought against him, in respect thereto \\u2014 that he, Lawson, was, and had been always, ready and willing to discharge and pay off his obligations to the defendants, J. H. Temple & Co., according to their tenor and effect, but, that he, Lawson, was in doubt to whom the same ought or should be paid \\u2014 was fearful, if he should pay the amount to one or the other of the defendants named in his bill, the others would persist to annoy and vex him with their suits, and might finally require him to pay the amount over again. Prayer that the persons named might each be made defendants \\u2014 that the Court would settle and determine the rights of the respective parties\\u2014 would direct Lawson to whom of them to pay over the amount of his obligations, or, in default thereof, that the Court would appoint a Receiver in Chancery, to take charge of the means tendered with his bill, to pay his obligations \\u2014 that, on doing either of which, Lawson furthermore prayed that he might be quieted in those suits, and secured against further molestation and costs, in respect thereto, by perpetual injunctions, etc. Concluding for general relief.\\nOn the 2d July, 1853, all the parties appeared, by themselves} or their solicitors, and consented, in open Court, that the bill might be taken as confessed, and that a decree might then be entered in accordance with the prayer thereof. It appears, from the transcript, that, on that day, a decree of the Court was entered, in substance, as follows: That the bill be taken as true, \\u2014 that the notes, tendered by the bill, in payment of those of Laws on, due to J. H. Temple & Co., be received, and taken as full payment and discharge of Lawson's obligations, \\u2014 that the parties be perpetually enjoined from proceeding with their respective suits at law against Lawson, \\u2014 that Lawson pay all the costs in the suits of Kirtland and Holmes against him. It appears, also, from the transcript, that it was agreed between the defendants, named in Lawson's bill, that Lawson should be discharged from that suit, as a party, after the rendition of the decree, as above, but that the suit should be retained as to themselves, with the view of having the Court,* at some future time, to settle the contest between them, in respect to the fund paid into Court by Lawson, which was consented to by the Court, and an order was entered, discharging Lawson from further notice or concern, as a party to that suit, but directing that it might be retained, as to the defendants, for the purpose of settling their rights, with respect to the funds paid into Court.\\nIt appears from the transcript that, on the 8th day of December, 1854, the parties, Lawson and the defendants named in his bill, came into Court and suggested that that cause was still standing on the docket, notwithstanding the disposition theretofore made of it, as above stated, and requested that the Court should strike it from the docket, which on that day was accordingly done.\\nIt appears also that afterwards, at the April term, 1856, Lawson by his solicitor, filed a motion to retax the costs of Lawson and allow him the srim of $350 out of the fund brought into Court by him under the decree above stated, being the amount of his attorney's fee for services rendered in and about the bringing and litigating the suit brought by Lawson, which resulted in the decr\\u00e9e above stated. And the Court upon the testimony of two witnesses, who testified to the reasonableness of $200, decreed that amount to him to be paid out of the fund brought into Court. No notice appears to have been given of this motion previous to its being filed. But the transcript shows that on the day of the decree allowing Lawson the $200, as attorney's fee in the interpleader suit, the defendants in that suit, who claimed to be interested in the fund brought by Lawson into Court, came into Court and expressed themselves dissatisfied with the decree of the Court allowing Lawson his attorney's fee, and excepted thereto, and took an appeal therefrom to this Court; and it is now insisted here, on the part of the appellants, that the last decree rendered in the cause in favor of the appellee, Lawson, was unauthorized and unwarranted, and, therefore, is erroneous.\\nFor the purpose of better understanding the subject before us, and with the hope of making ourselves better understood, We propose in the outset to state a few of the general rules which have been prescribed by Courts of Chancery for their government in determining questions of costs and awarding them.\\nThe giving of costs in equity is entirely discretionary, (see Scarborough vs. Burton, 2 Atk. 111. Burnett vs. College, 3 Bro. C. C. 390. 5 Danl. Ch. Pr. 15, 15;) as well with respect to the period at -which the Court decides upon them, as with respect to the parties to whom they are given. See. same authorities above cited.\\nIt is said that inasmuch as the giving of costs in a chancery suit is entirely discretionary, the exercise of that discretion cannot be reviewed or controled on error, or, in other words, that it is not the subject of error. See Cowles vs. Whitmore, 10 Conn. Rep. 121.\\nBut when it is said that the giving of costs in Courts of Equity, is entirely discretionary, it must not be supposed that these Courts are not governed by definite principles in their decisions relative to the costs of proceedings before them; all that is meant, it is said, by the dictum, is, that these Courts are not like the ordinary Courts, held inflexibly to the rule of giving costs of the suit to the successful party, but that they will, in awarding costs, take into their consideration the circumstances of the particular case before it, or the situation or conduct of the parties, and exercise their discretion with reference to these points. See Brooks vs. Byam, 2 Story's C. C. Rep. 553-'4; Kaye vs. Bank of Louisville, 9 Dana Rep. 261-'4; Tomlinson vs. Ward, 2 Conn. 396; Hunt vs. Lewin, 4 Stew. & Port. Rep. 138; Randolph vs. Rooser, 7 Port. Rep. 249.\\nThe discretion which we have said resides in the Court to award or give costs, must be understood to relate only to those costs in a suit, which are denominated \\\"general,\\\" or properly \\\" costs in the cause,\\\" and not such as may be said to be extraordinary, such as directing the costs of the suit to be paid out of a particular fund, or where the Court under special circumstances and a particular state of facts, developed by a proper course of pleading and demanded at the proper time, will direct counsel fees to be paid by a party either generally or out of a particular fund. See 3d Danl. Ch. Pr. 1517, 1553, 1583, 1767.\\nIt is said in Dungey vs. Angove (2 Vesey Jun. 313,) which was a case of fraudulent collusion, the plaintiff and his solicitor -were ordered to pay the defendant to a bill of interpleader, which was dismissed, all his expenses as between attorney and client. See, also, 8 Danl. Ch. Pr. 1767. And it seems to be a rule, permanently established by Courts of Chancery, that they will in no case, free from fraud in the defendants, allow inter-pleaders their solicitor's fee, to be paid generally, or out of the special fund brought into Court. See Dunlap vs. Hubbard, 19 Ves. 205. The Chancellor in this last case, saying: \\\"I do not recollect a single instance where an interpleader has been ah lowed his attorney's fee.\\\"\\nBut supposing, for the argument, that it were proper to allow-attorney's fee in any case of interpleader, without fraud on the part of the defendant, we apprehend there can be no doubt application should be made for such costs at the hearing or at any rate before the decree has been passed, as, after a decree has been passed, the Court will not, on petition, give the ordinary costs of the suit to a party, although he was a mere trustee, and as such, would have been entitled to them, as a matter of course, if asked for at the hearing. See Coleman vs. Sorrell, 2 Cox 206, cited in 3 Danl. Ch. Pr. 1553.\\nIt appears from our statement, that though the suit in the case before us was disposed of as to Lawson, it was retained as to the defendants or appellants, and it may not be without profit that we should enquire as to the effect of such a course of procedure as this in respect to the rights of the parties in relation to each other, and the jurisdiction of the Court, both over the subject matter and the parties We will advert to the principles of law bearing on such a case under such state of facts.\\nIt is said that a decree in an interpleading suit may terminate the case as to the plaintiff, though the litigation may continue between the defendants by interpleader, and in that case, \\\"the cause may proceed without revivor, notwithstanding the death of the plaintiff. See Mitf. Plea, by Jeremy 60, 49, note (?i); Anon. 1 Vern. 351; Jennings vs. Nugent, 1 Moll. 134; 3 Danl. Ch. Pr. 1765.\\nCourts of Equity dispose of cases arising upon bills of inter-pleader, in various modes, according to the nature of the question, and the manner in which it is brought before the Court. An interpleading bill is considered as putting the defendants to contest their respective claims just as a bill does, which is brought by an executor or trustee to obtain the direction of the Court upon the adverse claims of different defendants. If, therefore, at the hearing, the question between the defendants is ripe for decision, the Court will decide it, and make a final decree at the first hearing. And if it is not ripe for a decision, as between the defendants, the Court merely decides that the bill is properly filed and dismisses the plaintiff with his costs \\u2022up to that time and directs an issue to ascertain contested facts, 'as may be best suited to the nature of the case. See Angel\\u00ed vs. Hadden, 16 Vesey 202; City Bank vs. Bungs, 2 Paige 570; 2 Story Eq., sec. 822; 1 Smith Ch. P., (2 Amer. Ed.) 472; Eden on Inj., (2d Amer. Ed.) 404; 3 Danl. Ch. Pr. 1765.\\nAnd such seems to have been the course pursued with the case before us. As far as Lawson, the appellee, was concerned, the cause had been disposed of for more than two years before his application (on simple motion without notice,) was made for the allowance of counsel fees. There can be no doubt, we think, that the Court below had not the power, under the circumstances, to make an allowance to the appellee of $200, or any other sum, for counsel fees, at any time, and more particularly so after the decree had been passed in the cause, as was the case in the instance before us.\\nThe decree of the Union Circuit Court in Chancery, making the allowance of $200, as counsel fees in this cause to the ap-pellee, is, therefore, reversed at his costs.\\nAbsent, Mr. Justice Scott.\"}"
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+"{\"id\": \"8725552\", \"name\": \"Crabtree et al. vs. McDaniel\", \"name_abbreviation\": \"Crabtree v. McDaniel\", \"decision_date\": \"1856-01\", \"docket_number\": \"\", \"first_page\": \"222\", \"last_page\": \"227\", \"citations\": \"17 Ark. 222\", \"volume\": \"17\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T18:54:02.396319+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Crabtree et al. vs. McDaniel.\", \"head_matter\": \"Crabtree et al. vs. McDaniel.\\nA continuous, peaceable, adverse possession of slaves for the period of five years, vests title in tbe possessor. Pryor & wife vs. Syburn, (at the present term.)\\nAppeal from Lafayette Circuit Court in Chancery.\\nHon. Siielton Watson, Circuit Judge.\\nFowler, for appellants.\\nWateins & G-allagiiisr and Hempstead, for tbe appellee.\", \"word_count\": \"2024\", \"char_count\": \"11800\", \"text\": \"Mr. Justice Soott\\ndelivered the \\u00a9\\u2022pinion of tbe Court.\\n\\u2022 Crabtree and wife, and Mary Nelson Penn, Sarah Ann Cook, Priscilla Cook and Zachariab Cook, minors, by Crabtree their next friend, in behalf of themselves, and all other heirs of Nancy McGhirt, alias Nancy McDaniel, exhibited their bill in the La-fayettee Circuit Court, on the 25th day of January, 1853, against James McDaniel; and afterwards filed an amendment thereto, alleging altogether, substantially, as follows, to wit: That one Sarah McGhirt, otherwise called Sarah Ann McDaniel, had lately died intestate, in that county, leaving the said Nancy McGhirt her only child and heir surviving; that before, and at the death of Sarah, she owned in her own separate right, certain slaves who are described,- the exclusive right to which vested in Nancy, as sole heir. That Nancy died afterwards, in that county, in infancy, intestate and without issue. That the father and mother of Sarah died in her lifetime. That th\\u00e9 next of kin of Nancy are the sisters of her mother and their descendants, to wit: Priscilla, wife of Crabtree,. Eliza, who married James, Elizabeth, who- married Jolly, and the minor complainants who are children of Hannah, another sister of Sarah, who first married Penn, after his death married Cook, and afterwards departed this life, leaving her surviving the four minor complainants, her only heirs and distributees. That James and Jolly and their wives had removed from the Creek Indian Nation, where they had long resided, to parts unknown, nor was it known to complainants, whether any of them were dead or alive. That Sarah, and all her sisters, were women of, and belonging to the Creek Nation of Indians. That by the customs, laws and usages of that tribe, a man who did not belong to that Nation, could not lawfully marry a woman of that Nation, without first obtaining a license from the Chief of the Town or Council of the Nation. That the defendant McDaniel, isa white man, and nota Creek Indian, and never obtained any such license to marry the said Sarah Ann. That by said laws of the Creeks, a feme covert of that tribe, holds the sole and exclusive right of property in slaves, whether acquired by gift, descent, purchase or distribution, before or after coverture, to her sole and separate use, and the husband acquires, by marriage, no estate wlratever, in his wife's property, owned by her at the time of the marriage, or afterwards acquired by her; and on her death all such property descends to her children, and in default thereof to the next of kin of her own blood. That there had been no administration on the estate either of the said Sarah Ann, or of her daughter Nancy. That the slaves in controversy had come into the possession of the defendant McDaniel, who holds them without authority of law and as a trustee for the complainants, and the other heirs and legal representatives of the said Nancy, who are the rightful owners, and entitled to the possession of them. That the defendant intendsremoving them to parts unknown, beyond the limits of the State of Arkansas, pretending title thereto. And praying for answer, injunction, receiver, process of seizure and account of the hire, and for partition, distribution, and for general relief. The bill was verified by Crabtree's affidavit, and upon bond and security given, process of injunction and of seizure was awarded, and the slaves taken and hired out.\\nMcDaniel answered, admitting that Sarah Ann, her father and mother, and her daughter Nancy, had died as alleged; that Nancy was the only child of Sarah Ann; the relationship of complainants, Priscilla and the minors, and James and Jolly's wives, as alleged ; that there had been no administration of the estates of either Sarah Ann or Nancy, and that he was about to remove to Texas, and carry the slaves in question with him ; but denying that Sarah Ann had any sole or separate estate at the time of her death, or that Nancy ever had any whatsoever, denying the mode of marriage alleged, and that Crabtree was ever married to Priscilla, but admitting she is now living with him as his wife; denying that Nancy was ever known by the name of Nancy McG-hirt, or by any other than Nancy McDaniel, and also that the slaves in controversy, were ever wrongfully withheld by him from complainants, or any one else, or ever were held by him as trustee And averring the truth to be, that two of the slaves in controversy, from which the others have issued since the former came lawfully in the defendant's possession, were originally owned by one Zachariah McGhirt, a resident of the Creek Nation of Indians, whoso wife was a woman of that tribe. That the said Zachariah and his said wife, were the father and mother of the said Sarah Ann, and of her before mentioned sisters. That these Indians have no written code of laws for their government, but that their local and domestic affairs were entirely governed by their established usages and customs. That by one of these, whenever a person, who was not held as a slave in said nation, desired to contract a marriage with a woman belonging to said tribe, all that was necessary to consummate such marriage was for the parties to live together as man and wife, in an open and public manner ; and that he, the defendant, lived with the aforesaid Sarah Ann, and co-habited with her, as his wife, from about the year 1838 until the year 1846 or 1847, when she died. That he had several children by her, none of whom survived her, except the aforesaid Nancy. That after his marriage as aforesaid, his wife's father died in the Creek Nation, leaving considerable property. That by other usages and customs of said tribe of Indians, after asufficiency of the property of the deceased was applied to the payment of his debts, the residue was divided equally among his children. That in accordance thereto, two of the slaves of the said Za'chari\\u00e1h were sold fop the payment of his debts and the proceeds proving to be sufficient for that purpose, the residue was equally divided among his children and their representatives. That by that division the defendant, in right of his wife Sarah Ann aforesaid, received for his share the aforesaid two slaves, which, together with their issue since, are now in controversy. That by the customs and usages of said Creek Nation of Indians, the husband of any Creek woman could take, have and use, as his absolute property, whatever might descend or be distributed to her after coverture, and that in pursuance thereof the defendant, as the husband of the said Sarah Ann, reduced said slaves to his own possession, whereby they became his absolute property and that from that time he has held quiet, peaceable and absolute possession of them and of their increase, as his own exclusive property, until taken from him by the order of the Chancellor under the prayer of this bill. And insists that under said customs and usages, they have been ever since the aforesaid division, and are still, his absolute property. And again averring that he legally and properly acquired the possession and control of said slaves, under the customs and usages of the aforesaid tribe of Indians, and that he so held the same afterwards, as long as he continued to reside in said Indian country, and >removing them therefrom to the l\\u00edtate of Arkansas as his absolute property, he has ever since continued so to hold them, he insists that, from his original' lawful title and \\\"long continued, peaceable and quiet possession, he is entitled to hold said slaves, as his absolute property, free from any pretended claim or demand of said claimants, or any one else, as the supposed heirs of the said Nancy.\\\" And alleging a want of equity in the bill, prays full benefit at the hearing, as if a demurrer had been interposed.\\nHie answer was sworn to, and issue taken ; and the cause hav ing been previously set clown for final hearing, was heard at the May term, 1854, of the Lafayette. Circuit Court, upon the bill, answer, and replication and a mass of evidence by deposition, when the court found the slaves in controversy to be the absolute property of the defendant McDaniel, and that the' complainants were entitled to no relief, dismissed their bill, with costs, and vacating the injunction and all other restaiuing orders previously made, decreed also, that the defendant should recover against the complainants all such damages as ho had sustained by reason of the injunction and restraining orders aforesaid ; but because the amount of damage was unknown, and there was not sufficient time to ascertain it, at that term of the court, by the inquiry of a jury, ordered a writ of enquiry therefor, returnable unto the next term in course; from which decree the complainant appealed to this court.\\nThe larger portion of the testimony in the record, relates to the usages, customs and laws of the Creek Indians, set up in the pleadings. It is conflicting to a degree beyond reconciliation, and it would be, therefore, only by discarding some of it altogether, that any conclusion could be arrived at on the points contested' But, however these points might be found, they would not be decisive of the case, because it must unavoidably go for the defendant below, upon the ground of his long continued, peaceable, quiet and adverse possession. It will, therefore, be necessary only to set out the substance of the testimony relating to this ground of the defence.\\nIt appears that Zachariah McGhirt departed this life in the Creek Nation sometime in the year 1840 or 1841, and his wife, also, died about the same time. That soon afterwards, there was a distribution of the property left by them, among their children and their representatives. That by means of this distribution, the negroes in controversy came to the possession of McDaniel, his alleged wife Sarah Ann being one of the distributees. Sarah Ann died, leaving her surviving one child named Nancy McDaniel, who died in the month of March, 1846. In the year 1842, McDaniel settled in Lafayette county, Arkansas, where be lias ever since resided, and where Sarah Ann and her daughters departed this life. When he came there, lie brought with him the aforesaid Sarah Ann and her daughter, and also the slaves in controversy, and held the latter from thenceforward, in his continuous peaceable possession, as his own property up to the time when, on tlie 26th of January, 1853, they were taken from his possession by the sheriff of Lafayette county, by virtue of process of seizure, ordered by the Circuit Judge in vacation.\\nThere is no evidence that there ever was any adverse claim to the slaves in controversy, on the part of the complainants or any one else, against McDaniel, until the filing of the bill in tins case, which was the 25th of January, 1853, a period of more than five years after the death of the girl Nancy McDaniel, under whom the complainants set up title \\u2014 Crabtree and his wife, living all the time in the neighborhood of McDaniel \\u2014 of about twelve years from the time the negroes went into the possession of McDaniel, upon the distribution of the estate of McGhirt and wife, and of upwards of six years and one month after the approval of the statute of limi tation and title in relation to slaves, expounded in the case of Pryor et al. vs. Ryburn et al., decided at the present term.\\nUpon this ground then, the decree of the Circuit Court of Lafayette county, must be affirmed.\"}"
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+"{\"id\": \"8726591\", \"name\": \"Chitwood vs. The State\", \"name_abbreviation\": \"Chitwood v. State\", \"decision_date\": \"1857-01\", \"docket_number\": \"\", \"first_page\": \"453\", \"last_page\": \"455\", \"citations\": \"18 Ark. 453\", \"volume\": \"18\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T20:23:40.194608+00:00\", \"provenance\": \"CAP\", \"judges\": \"The Hon. Felix J. Batson, Circuit Judge.\", \"parties\": \"Chitwood vs. The State.\", \"head_matter\": \"Chitwood vs. The State.\\nIf the defendant, in preparing his bill of exceptions on the trial of an indictment for a criminal offence, state that the venue was proved as alleged, instead of stating what the witness testified as to the place where the offence was committed, he must abide by the concession.\\nWhere the verdict is not without evidence to support it and the Court below refuses to grant a new trial, this Court will not disturb the verdict.\\nAppeal from the Circuit Court of Johnson county.\\nThe Hon. Felix J. Batson, Circuit Judge.\", \"word_count\": \"916\", \"char_count\": \"5151\", \"text\": \"Mr. Chief Justice English\\ndelivered the opinion of the Court.\\nRussell B. Chitwood was indicted in the Johnson Circuit Court for an assault and battery upon John Armstrong] tried by a jury upon the general issue; verdict of guilty, and fined $10. He moved for a new trial on the grounds that the verdict was contrary to law and evidence; the Court overruled the motion, and he excepted and appealed.\\nThe bill of exceptions taken by the appellant is as follows:\\n\\\" Be it remembered that on the trial of this cause, the State, to sustain the issue on her part, introduced John Armstrong, the party charged to have been assaulted, etc., who, being sworn, by his testimony established the time, venue and manner of the parties as charged; and who testified that he, in company with another person, had gone to a school house, where the defendant was, in search of ,a man named Reagan. That he had his gun with him when he went into the house, where the defendant and others were engaged in singing. That, when they stopped singing, he spoke to defendant and told him he had understood that defendant had threatened to whip his brother, and that if he should attempt to do it, he would have some older person to whip first, he, the witness, at the time holding his gun in his hand. Defendant replied by telling him to leave the house, and then rose to his feet. Witness refused to leave until he got ready, when the defendant caught the gun in one hand and with the other pushed witness back, and they both fell together over a bench, and were separated by the persons present. That witness made no attempt to inflict any injury on the person of said defendant before the defendant caught the gun. Witness did not recollect whether he pointed or drew the gun upon defendant or not. That if he presented the gun before defendant caught it, it was unintentionally done.\\n\\\" The State then called two other witnesses, who testified that they were present- at said difficulty. That defendant, themselves and others were present at said school house engaged in -singing when said Armstrong came there. That Armstrong came into the house, and set his gun down by the door, and walked back and forth across the floor until the singing ceased, when he stepped to his gun, picked it up, walked up in front of the defendant and accosted him as stated by said Armstrong. That defendant then told Armstrong to leave the house, and rose to his feet. Whereupon Armstrong threw his gun over in the position of a present; when defendant seized the gun in one hand, and with the other pushed Armstrong back, when they both fell over a bench, and were parted by the by-standers. That defendant made no attempt to strike or use violence upon Armstrong, until after he had drawn his gun as above stated. This was all the testimony in the cause,\\\" etc.\\nThe refusal of the Court below to grant a new trial is the only matter assigned for error.\\nThe counsel for appellant insists that the venue was not proven. But the bill of exceptions expressly states that the State established the venue, etc., as charged, by the witness Armstrong. The counsel, however, submits that the bill of exceptions states a legal conclusion instead of the facts sworn to by the witness. If there be any force in this objection, it comes badly from the appellant. It is the-usual practice for the party who reserves a point, to prepare and tender the bill of exceptions for the signature of the Judge, who signs it, if it contains a correct statement of the facts, etc. It appears from the face of the bill of exceptions in this case, that it was prepared and tendered to the Judge by the appellant. If he thought proper to make it state that the venue was proven as charged, instead of stating what the witness testified as to the place where the offence was committed, it was a concession in favor of the State which he must abide by.'\\nIt is, moreover, insisted by the counsel for appellant, that the verdict was not warranted by the evidence as to the assault and battery, etc.\\nIf the jury believed the witness Armstrong, their verdict was not without evidence to sustain it. They might have found, upon the testimony of the other two witnesses, that appellant acted in self defence. It was clearly a case turning upon the weight of the evidence, and it was their peculiar province to judge of this. They having found the defendant guilty, upon all the testimony before them, and the presiding Judge, who likewise heard the evidence, having refused to grant a new trial, we shall not disturb the verdict.\\nThe judgment is affirmed.\\nAbsent, Hon. Thomas B. Hanly.\"}"
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+"{\"id\": \"8726759\", \"name\": \"Dickens vs. Howell\", \"name_abbreviation\": \"Dickens v. Howell\", \"decision_date\": \"1866-12\", \"docket_number\": \"\", \"first_page\": \"230\", \"last_page\": \"233\", \"citations\": \"24 Ark. 230\", \"volume\": \"24\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T19:52:34.566428+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Dickens vs. Howell.\", \"head_matter\": \"Dickens vs. Howell.\\nIt is not a material variance in declaring upon a note, in which no day of payment is specified, to describe ita3 payable on request: particularly where the pleader does not prefer to set it out in licee verba.\\nAppeal from Yell Circuit Court.\\nHon. Thohas Boles, Circuit Judge.\\nClark, Williams & MartiN for the appellant.\\nThat there was a variance between the obligation sued on and that given on oyer, referred to Baekett vs. Spencer, 29 Barb. {1S\\u00cd. Y.) Rep., 180; Jones vs. Brown, 11 Ohio, (W. S.) 601; Cornell vs. Moulton, 3 JOenio, 12; 8 John., 189, 375; 2 McCord, 246.\", \"word_count\": \"1243\", \"char_count\": \"6900\", \"text\": \"Hr. Chief Justice Walker\\ndelivered the opinion of the court.\\nThis is an action of debt brought in the Yell circuit court by Howell vs. Dickens. The defendant craved oyer of the writing declared upon, which having been given, he demurred for variance between the writing described in the declaration, and that given upon oyer. The special cause of variance is, that in the declaration, the writing obligatory is described as being payable on request, and that given on oyer is payable on the fifteenth day of October, 1861, the date of its execution. The court overruled the demurrer, and the defendant offered \\\"no further defence. Judgment was rendered in favor, of the plaintiff', from which the defendant appealed.\\nThe question of variance is the only one presented for our consideration.\\nThe writing obligatory declared upon is in the following words: \\\"For value received Tpromise to pay Haynes A. Howell eleven hundred and ninety-nine dollars, to bear interest at the rate of ten per cent, from date until paid. Witness my hand and seal this 15th day of October, 1861. Samuel DiokeNS, [Seal.]\\\" The averment in the declaration is, that the defendant, on the 15th day of October, 1861, acknowledged bimself to be held and firmly bound nnto the plaintiff in the sum of eleven hundred and ninety-nine dollars above demanded, to bear interest at the rate of ten per cent, from date until paid, for value received, to he paid to the said plaintiff when he the said defmdcmt should 1)6 thereunto afterwards reguested. '\\nThe appellant contends that the contract was due and payable at its date, and that the terms \\\" to be paid upon request,'' so misdescribed the instrument as to make it payable, not at its date, but upon request; and the question is, do the terms, to be paid upon request, constitute such further description of the contract as to vary it in legal effect, or in other words, to change the time of payment, so as to make the bond payable at another and different time from that at which it was, by the terms of the contract, to have been paid. If it does, then the variance is material, and the demurrer should have been sustained; otherwise, the judgment of the court was correct.\\nBy reference to the authorities upon this subject it will be found that, in contracts like the one under consideration, where no time of payment is mentioned in the note or hond, it is in effect a promise on demand. Story, in his work on Promissory Notes,p. 29, says: \\\"Where a note does not Specify a day or time of payment, it is by law deemed payable on demand, and therefore is construed as if it contained the words, payable on demand, on its face.\\\" We observe that Chitty, in his forms for declarations in debt upon bonds, has omitted the words: \\\"When he the said defendant should be thereunto afterwards requested,\\\" but in a note referring to this part of the declaration, says that \\\" they are usually inserted,\\\" but as they \\\" are not usually in the bond, they seem better omitted in the declaration.\\\" The form prescribed, and the note in explanation of it, although not of great weight in determining this question, show that it is not a matter of vital importance which form of declaring is adopted, whilst some of the American courts hold it best, where no time of payment is specified in the note, that it should be declared upon as a note on demand. Thus, in the ease of Green vs. Dribelis, 1 Iowa Reps., p. 552, in an action on a promissory note, in which no time of payment was specified, a demurrer was filed to the declaration, because it was not averred at what time the note was due and payable. The judge, who delivered the opinion of the court, said: \\\"It is very correctly assumed by counsel for the plaintiff in error, that where no time for payment is mentioned in the note, it is, in contemplation of law, payable on demand.\\\" The declaration is objected to on the ground that it does not specially describe the note according to its legal effect. The note should, no doubt, be declared upon as a note payable on demand, but it does not necessarily follow that the particular words on demand should be incorporated in the declaration, if it alleges, in other terms, the time when the note became due, and in this particular we can but consider the declaration sufficient in law.\\\" Thus it will be seen that the ground of objection to the declaration in that case was, that the pleader had failed to do precisely that which he did do in the case before us, that is: allege that the bond was to be paid upon request, which is held by the court to be the legal effect of a promise to pay when no day for payment is specified in the contract. Such being the legal effect of the contract, in the language of Sto\\u00fcy, \\\"as much so as if it contained the words, payable on demand, on its face,\\\" we think it clear that the pleader in this instance did not err in so declaring upon it, because in so doing he but stated what was true according to the legal effect of the bond, and consequently there vras no material variance between the bond as declared upon and that given on oyer.\\nThe rights of the parties are, in no respect, affected by this construction of the legal import of the contract; no demand was necessary to entitle the party to his right of action, which was matured and perfect from the date of the bond. The addition of the descriptive words, \\\"to be paid upon request,\\\" used by the pleader,-is not understood as altering, or in any manner changing the time when the debt became due, and brings this case within the rule laid down by this court in the case of The State Bank vs. Peel et al., 6 English's Rep.,p. 753, in which this court held \\\" that a variance is immaterial when it does not change the nature of the contract, which must receive the same legal construction, whether the words be in or out of the declaration.\\\" It should be remembered too, that the pleader did not attempt to set out the bond in liceo verba, but only set forth the contract in substance and legal effect, and when such is the case, the same strictness is not required as where the pleader attempts to set forth the contract literally.\\n\\\"We are therefore of opinion that the court did not err, in overruling the defendant's demurrer and rendering judgment for the plaintiff.\\nLet the judgment be affirmed.\"}"
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+"{\"id\": \"8727467\", \"name\": \"Hicks vs. Wilson\", \"name_abbreviation\": \"Hicks v. Wilson\", \"decision_date\": \"1867-06\", \"docket_number\": \"\", \"first_page\": \"628\", \"last_page\": \"628\", \"citations\": \"24 Ark. 628\", \"volume\": \"24\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T19:52:34.566428+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hicks vs. Wilson.\", \"head_matter\": \"Hicks vs. Wilson.\\nWhere there is no exception to the decision of the court overruling a motion for new trial, the party making the motion will be regarded as acquiescing in the decision.\\nWrit of Error to Marion Circuit Court.\\nHon. Elias HaRRell, Circuit Judge.\\nGarlaND & Nash, for plaintiff.\", \"word_count\": \"224\", \"char_count\": \"1269\", \"text\": \"Mr. Justice ClendeniN\\ndelivered the opinion of tbe court.\\nThis is a writ of error to the circuit court of Marion county. The defendant in error, Wilson, brought his suit against the plaintiff in error before a justice of the peace. At the appearance of the parties, on motion of the defendant before the justice, the suit was dismissed, and Wilson appealed to the circuit court. In the circuit court, the case was submitted to the court sitting as a jury and judgment was given for the plaintiff, (Wilson.) The defendant moved for a new trial, which was overruled; and the defendant did not except to the ruling of the court.\\nThe uniform doctrine of this court has been that where there has been no exception taken to a refusal of the court to granta new trial, the supreme court cannot revise the' decision on the motion, and the party making the motion will be regarded as \\u2022acquiescing. See Moss adm'r. vs. Smith, 19 Ark., 683.\\nThe judgment of the circuit court is affirmed.\"}"
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+"{\"id\": \"8728437\", \"name\": \"Jarrett, adm'r of Acheson, against Wilson, adm'r of Wilson\", \"name_abbreviation\": \"Jarrett v. Wilson\", \"decision_date\": \"1838-07\", \"docket_number\": \"\", \"first_page\": \"137\", \"last_page\": \"141\", \"citations\": \"1 Ark. 137\", \"volume\": \"1\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T21:34:10.941312+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Jarrett, adm\\u2019r of Acheson, against Wilson, adm'r of Wilson.\", \"head_matter\": \"Jarrett, adm\\u2019r of Acheson, against Wilson, adm'r of Wilson.\\nError to Lawrence Circuit Court.\\nIf the defendant pleads, after demurrer to the declaration overruled, he can take no advantage in this Court of insufficiency of the declaration. He should let judgment go upon the demurrer, and appeal.\\nUpon issue on replication that there are goods unadministered, to the plea of plane adminislrant, the verdict ought to find the amount of assets unadmin-istered, and if it do not, the judgment is bad.\\nAnd if in such case the judgment be that \\u201cthe plaintiff recover of the defend- \\u201c ant his debt and damages, &c., to be levied of the goods, &c. of his intes- \\u201c tate, if any he hath unadmiaislorod, and if none, of his own proffer goods, \\u201c &c.,\\u201d it is equally bad, whether one part of the judgment might be reversed and the other affirmed, or not.\\nIf one part could bo affirmed and the ether reversed, still the situation of the plaintiff in error would not bo bettered. Kis own property would still be liable, if he has no assets unadrainistered.\\nThe statute of the Stale curing informality, fro., does not extend to a case lijfe the present.\\nThis was an action of debt, commenced in the Lawrence Circuit Court, by Marcus Wilson against Jarrett, administrator of John Acheson, deceased, upon a writing obligatory, executed by Acheson in his lifetime, whereby he acknowledged that Wilson had advanced and become liable for him, A dieron, to tac amount of $SG76 70. At May Term, 1835, cf the Court below, the defendant below craved oyer of the writing obligatory, and demurred to the declaration, which demurrer was overruled, and the defendant below then filed his plea of plane admimstravit, except as to the sum of $240 93, to which plea the plaintiff below demurred, and his demurrer being overruled, he filed his replication, that the defendant ha'd in Ids hands at the commencement of the suit, goods and chattels of bis intestate unadminis-tered, to the amount of the debt \\u2014 concluding to the country, to which the defendant below joined issue, and thereupon the following judgment was rendered \\u2014 that the defendant having failed to produce evidence to sustain his plea, and saying nothing further in bar or preclusion, \\u00e9se., and there being sufficient evidence of the plaintiff\\u2019s demand, \\u201c it is therefore considered by the Court that the said plaintiff have and recover of the said defendant the sum of $>6G76 70, debt, and $1088 23, damages, and costs of salt, to be levied of the goods and chattels which were of the said John Acheson at the time of his death, in the hands of the said administrator, defendant as aforesaid, remaining to be administered upon; if so much thereof in his hands to be ad ministered he hath not, then to be levied on the proper goods and chattels of said_defendant.\\u201d\\nThe errors assigned were, 1st, That the declaration was uncertain and insufficient: 2d, The overruling of the demurrer: 3d, That the Court rendered judgment without impannelling a jury, or having the case submitted to the Court: and 4th, The form of the judgment as against the proper goods and chattels of the administrator.\\nRingo, Chief Justice, and Dickinson, Judge, having been engaged in the case, did not sit therein, and it came on to be tried before Lacy, Judge, Catjsin and Haggard, Special Judges, in the name of Jarreti, adni\\u2019r., against Alexander Y/ilson, adm\\u2019r. of Marcus Wilson, the oiginal plaintiff below.\\nHall, for the plaintiff in error,\\ncontended 'that the demurrer to the declaration was wrongly overruled, and that there was error in the judgment below.\\nTiiapnall and Cocke, contra:-\\nVarious objections are taken to the declaration, the sufficiency of which cannot certainly at this stage of the cause be put in question. But the objections themselves are without form or propriety. See Statute of Jeofail, McCampbelVs Digest, 332. Demurrer overruled or withdrawn precludes the defendant from going back to the judgment.\\nThe plaintiff contends there is no order'on the record, referring the decision of the case to the Court. The Court could not have decided upon the case without the consent of the parties, and after judgment the legal presumption is conclusive that it was by virtue of that consent that the Court acted. Every thing will be presumed in favor of the judgment below, which is not contradicted by the record, is a principle too well settled and too frequently referred to before the Court to need a reference now.\\nThe judgment against the administrator de bonis intestati, is undoubtedly good. The residue of the judgment may be erroneous. If it is, as the two judgments are separate and not dependant on each other, so much of the judgment of the Court below as is de bonis pro-priis may be reversed, and the judgment de bonis intestati be affirmed. Tidd\\u2019s Practice, 1128*, 1129; 4 Burrows, 2018; 2 Bacon 228-29. A judgment for debt and damages may be reversed as to the damages and affirmed as to the debt. Tidd, 1128-9.\", \"word_count\": \"1767\", \"char_count\": \"10466\", \"text\": \"Causin', Special Judge,\\ndelivered the opinion of the Court: This cause comes before the Court upon a writ of error, sued out by the plaintiff in error, against the intestate of defendant in error, to the Lawrence Circuit Court.\\nThe intestate of the defendant in error brought an action of debt in the Court below against the plaintiff in error in an instrument of' writing, signed and sealed by John Acheson, the plaintiff's intestate, by which the intestate acknowledges his indebtedness to the defendant's intestate in the sum of three thousand and seventy-seven dollars, and the liability of the defendant's intestate for him to pay certain debts to sundry persons, amounting to the sum of three thousand two hundred and ninety-nine dollars and seventy cents, the two sums making the aggregate amount of six,thousand six hundred and seventy-six dollars and seventy cents. To the declaration filed the defendant in the Court below demurred, but the Court overruled the demurrer; he then pleaded that the action was prematurely brought, but withdrew this plea pleaded ji/eiie administravit, praeler two hundred and forty-two dollars and ninety-two cents, to which plea the plaintiff in the Court below demurred: the Court however overruled the demurrer, and he then filed his replication, in which he alleges that the plaintiff in error at the commencement of this suit, and ever since, had divers goods and chattels which were of his inf\\u00e9state at the time of his death, in his hands as administrator, to be administered, of great value, to wit: of the value of the debt set forth in the declaration, and wherewith as administrator he could and ought to have satisfied the debt in the declaration mentioned; on this replication issue was joined.^ Under this_ state of pleading, the Court below (for it appears that no verdict was rendered by a jury) entered up judgment de bonis intestati et si non de bonis propriis against the plaintiff for the debt, and one thousand and sixty-eight dollars and twenty-three cents damages and costs. The errors assigned may be resolved into two: First, that the declaration is insufficient: Second, that the judgment given in the Court below is erroneous and illegal.\\nThe first objection the Court considers untenable; admitting the insufficiency of the declaration, there being a cause of action apparent on the face of it, no such objection can be successfully urged before this tribunal. The proper time for making the objection has passed. The plaintiff, if he relied on the insufficiency of the declaration, should have appealed from the judgment of the Court, on the demurrer to the same. On this point, the authorities are too conclusive to admit of a doubt. See 2d Marshall's Reports, 143, 254, 436; 3 Bibb, 52; Comyn's Digest, 6 v. 262; Story's Pleadings, 71.\\nIt has been contended by'the counsel for the defendant that the objection against the judgment should not be sustained, because the judgment consists of distinct and independent parts, and that portion operating unjustly against the plaintiff's own property may well be reversed, and the remaining part affecting him in his representative character of administrator affirmed: but in the view of the Court, whether the judgment consists of distinct and independent parts, so that one part might be reversed and the other affirmed, or the same is incapable of separation is a matter perfectly immaterial, as the omission to state in the judgment the amount of assets unadministcred vitiates the whole of it. The plea o\\u00ed plena adminislravit, though not sustained, is not necessarily a false plea within the knowledge of the party pleading it; and if it be found against him, the verdict ought to find the amount of assets unadministered, and he \\u00cd3 liable for that sum only. Siglar vs. Haywood, 8th Wheaton, 675.\\nSuppose one part of the judgment were reversed and the other affirmed, would it better the situation of the plaintiff in error? Not in the least; for even then the plaintiff's own property (upon the supposition that he has no assets to he administered,) would he exposed to the payment of the debt. Whether the plaintiff has assets unadminister-edornot, it is impracticable for this Court to determine. From the record non constat he has one cent; if the consequence suggested .would result from carrying into effect either part of the judgment, (and that it would seems too clear to be denied), a reversal of it is absolutely required. The act of the Legislature in regard to informality in pleading, relied upon in argument by the defendant's counsel, the Court cannot consider applicable to the case presented by the record.\\nThe judgment is therefore reversed, the case remanded for a new trial, and costs in this Court awarded to the plaintiff in error.\\nNathan Haggakd, one of the Judges in this cause, dissents from the opinion of the Court herein delivered at this time, so far as the first assignment of errors is decided upon. It is not deemed necessary or important to decide on said assignment, because such decision would not vary the result of the case. And inasmuch as there was no withdrawal of the demurrer to the declaration prior to the plea to the merits being interposed, the reasons upon which that part of the opinion of the Court is predicated, have no force here. Therefore a non-con- currcnce on that point with that opinion is here stated, and said dissent ordered to be entered with the opinion delivered in this case.\\nG. N. CAUSIN,\\nNATHAN HAGGARD,\\nTHOS. J. LACY.\"}"
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diff --git a/arkansas/8728553.json b/arkansas/8728553.json
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+"{\"id\": \"8728553\", \"name\": \"State, use of Jones, Woodward & Co. vs. Borden et al.\", \"name_abbreviation\": \"State ex rel. Jones, Woodward & Co. v. Borden\", \"decision_date\": \"1855-01\", \"docket_number\": \"\", \"first_page\": \"611\", \"last_page\": \"618\", \"citations\": \"15 Ark. 611\", \"volume\": \"15\", \"reporter\": \"Arkansas Reports\", \"court\": \"Arkansas Supreme Court\", \"jurisdiction\": \"Arkansas\", \"last_updated\": \"2021-08-10T21:14:03.707550+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State, use of Jones, Woodward & Co. vs. Borden et al.\", \"head_matter\": \"State, use of Jones, Woodward & Co. vs. Borden et al.\\nWRere a slieriff sells property, levied upon, under an execution, -and the \\u00a1purchaser refuses to pay the money bid, it is not such a sale, -within the meaning of sec. 70, chap. 6T, Dig., as would make the sheriff responsible .for the amount.\\nA sheriff is not responsible, as for neglect or refusal to make sale of the property levied upon under execution, where, by his return, it appears that he had not time to sell on the day appointed by law for making' sales, because other sales required by law to be made on that day, consumed the -whole time within which sales may lawfully be made.\\n.An officer derives his power to levy upon and sell property from the judgment and the writ, and a sale, after the return, day of the writ, would be void.\\n. Appeal from JPulaski Circuit Court.\\nHon. \\u00a5h. H. Feild, Circuit Judge.\\nCurrar & Gallagher, for the plaintiff,\\ncited -sections 68, 6% 70, 5\\u00e9 cmd 55, ch. 67, Pig., and contended that it was the duty of the sheriff to have -struct off the property for cash, and required \\u25a0the same to be paid, and as, in this \\u00a1case, he saw fit to strike off \\u25a0\\u25a0the property without requiring cash to be paid down, he is liable to the plaintiff, as he thereby saw fit to assume the payment of the amount bid, and it was a satisfaction of the execution. See Simmons vs. Bradford, 15 Mass. 83/ 7 P.& C. 370/ Xymam vs. Lymcm, 12 Mass. 319.\\nWhen .the sheriff chose to allow the time of sale to elapse, without requiring the cash of Beebe, for his bid, and thereby deprived plaintiff of his remedy, he assumed the debt, or the .amount bid, and cannot set up, as a defence, that the defendant in the execution had no title to the land.\\nTbe statute prescribes that lands be sold under execution on the 1st day, and that the execution, be made returnable on the 2d day of the term:, (Dig-, eh. 67, sees. 9, 52)/ and a sale made after the return of the writ would be void. 7 Eng. 554, 555 / 4 8m. <& Manrsh. 631.\\nThe return of the sale of the property, was a satisfaction of the judgment; and no other execution could have been issued: it follows then that the sheriff is liable, as he ought to have received the amount of the bid either from Beebe, or have re-sold the property \\u2014 the plaintiffs have no recourse against the purchaser..\\nPiKE & CtaiMiNS, for the defendants\\u00bb\\nIf the sheriff had no time to sell on the first day of sale, after Beebe refused to pay his bid, and no power to sell afterwards, he was not bound to do any thing at all afterwards. And as the plaintiffs have chosen to allege that he did make the money, they must 'abide by their allegation, and cannot recover', unless he did actually make it\\u00bb Taylor et al. vs.. The County of Pulaslci, 4 Arle. 596.\\nIt is very clear that if a sheriff, on an execution against B, take the property which belongs to A, he is a trespasser\\u00bb 2 Pielc. 121/ 1 Mass. 530/ 17 ib. 244/ 2 A. K. Marsh. 268. And the owner- of the property may waive the trespass, and bring his action for the money, which the goods sold for. Lmdon vs. Hooper, Cowp. 419. And justice and common sense would seem to teach that he- could not also be liable to- an action for the money. It is well settled, that he may retarni the proceeds im, his own hands, as an indemnity against his liability to the rightful owner, where he has sold the property. Payne us. Eershaw, PEa/rper 275/ Eruton vs. Common, ib. 889/ 6 Greenl. 28/ 16 Pide. 556.\\nThe plaintiffs were not precluded from any further attempt to enforce their judgment by execution\\u00bb They were entitled to bring an action, in the name of the sheriff, against Beebe, for the money bid, or, if they prefered, to cause a re-sale by vend. ex.\", \"word_count\": \"3031\", \"char_count\": \"16428\", \"text\": \"Mr. Justice Walxee.\\ndelivered tbe opinion of tbe Court.\\nThis was an action of debt, against William 33. Borden and bis securities, on bis offical bond as sheriff.\\nTbe first breach states that, on tbe 26th of June, 1843, Jones and Woodward obtained judgment in tbe Pulaski Circuit Court against James C. Anthony for $600 debt, $66 66 damages and costs: that, on tbe 11th September, 1843, fi. fa. issued, returnable November 28th, 1843, and was levied on certain lands and returned without sale, and unsatisfied: that, on tbe 1st October, 1844, a vend. ex. issued and came to tbe bands of Borden, then sheriff, ordering sale of tbe land levied on, and for want of sufficiency of such property further to levy, and that under that writ be made tbe full amount of tbe debt, damages and costs, and bad failed to pay over tbe money.\\nTbe 2d breach, after a like recital, avers that, at tbe return day, Borden, as sheriff, c&rtified and retwrned that be bad, by virtue thereof, sold property to tbe amount of $1026, and avers that be bad not paid over tbe money.\\nTbe 3d breach states tbe same judgment, fi. fa. levy, and vend, ex., and then sets out tbe return of Borden; which was, that be made further levy on two negroes, and advertised tbe land and tbe negroes for sale, and offered them for sale on tbe 21st April, 1845; that Boswell Beebe purchased lots 1, 8, 9, 10 11, and 12, in Block No. 2, for $1026, which bid be refused to pay; that tbe matter being'before tbe court, be so returned for its decision, that be employed all tbe time, between 9 A. M. and 3 P. M., and could not sell tbe land as mentioned and described within tbe hour of 3 P. M. having arrived before be reached them on bis sale book, and that P. W. Trapnall bought tbe negroes for $40, which was applied on certain specified older executions: that there was no other property, and so tbe writ returned unsatisfied, and so tbe plaintiff proceeded to aver that, by this return, the judgment was satisfied, Jones and Woodward deprived of tbe right to further execution, and tbe debt, &c., lost to them.\\n\\\"Tbe 4th breach is the same, only averring hindrance and delay by reason of such return.\\nIssues were taken upon the 1st and 2d breaches, which we \\u2022will consider after we have settled the law-arising upon the demurrer to the 3d and 4th breaches, which was sustained.\\nThe special causes of demurrer'were; 1st. That neither breach shows any cause of action; 2d. That ea'ch shows that Borden had no power to execute the writ; 3d. That neither of the breaches \\u2022contains any allegation that the return is untrue; and, if true, then there is no cause of action.\\nThe fust and third grounds raise the-same question, and indeed the main -question in the whole case: and the determination of the sufficiency of the 3d breach will be conclusive of that arising upon .the fourth.\\nThe truth of the facts returned by the sheriff is not'Jcontro-vertecl, and the question is, does the return excuse the sheriff for not having the money bid for the property before the court?\\nThe plaintiffs rely upon the following provisions of the statute, as fixing the liability of the sheriff. By the statute, Dig., Ch. 67, page 506, it is enacted: \\\"If any officer to whom any execution shall! be delivered, shall neglect or refuse to execute or levy the same according to law, or shall take in execution any property, or if any property shall be delivered to him by any .person against whom an execution may have been issued, and such officer shall neglect or refuse to make sale of the property so-delivered, according to law, &c.; in .any such event, such officer shall be liable .and bound to pay the whole -amount of money in such execution specified, or thereon -endorsed and directed to be levied.\\\"\\nSee. -69 provides, that \\\"If such officer shall not, on the return of any execution, or at the time the same ought to be returned, have the money which he may have become liable to pay as aforesaid, and pay the same -over according to the command of the writ, any person aggrieved thereby, may have his action against the officer, and his securities upon his bond, &c.\\\"\\nSeo. YO provides, \\\"If any officer sell any property under any execution, whether he receive payment therefor or not, or shall receive the money in any execution specified or thereon endorsed and directed to be levied, or any part thereof, and shall not have the amount of such sale, or the money so- made before the court, and pay over the same according to law, he shall be liable to pay the whole amount, &c.\\\"\\nThe questions presented are, was there a sale of the property by Borden- to Beebe; if so, then no matter whether he received the money bid or not, he was clearly liable- to pay it over under the provisions of the YOth section: or if after the levy he refused or neglected to sell the property levied upon, then he would be liable under the 6Yth section.\\nFirst, then, was the property sold? That it was offered and struck off to Beebe is admitted; but as he refused to pay his bid, was it a sale of the property? If so, then, the purchaser would acquire property which he- had never paid for, the sheriff would become- the guarantor for the payment of the money, and would be left to his recourse against the purchaser to make it out of him, if he could ? Such never w'as intended by law to be his liability, nor is such the effect of a bid unpaid, as is manifest from the 53d section, which declars that, \\\"if any person shall refuse to pay the amount bid for any property struck off to Mm, the officer making the sale, may again sell such property to the highest bidder, and, if any loss shall he occasioned thereby, the officer may recover such loss by action against the first bidder, &c.\\\" Under this section, the first bidder, by failing to pay the sum hid, forfeits it, and acquires no interest whatever in the property, as held by this court, in the- cases of Newton vs. State Bank, 14 Ark. 15, and The State vs. Lawson, sheriff, 14 Ark. 118.\\nThere was, then, no sale of property in this case, and the next question is, did the sheriff neglect or refuse to sell the property levied upon?\\nThis is a matter of fact, to be determined by the return itself,, under the issue formed; because, if untrue, the sheriff's liability- would have arisen upon a count for a false, return, in which, case, the truth of the facts stated in the return would have been put in issue; but, in the case before us, the only question is, taking the return as true, is the sheriff guilty of neglect for not selling the property? He states that he had not time to sell on the day appointed by law for making sales, because, after once offering it for sale, other sales, required by law to be made on that day, consumed the whole time within which sales may lawfully be made; and this return we have held to be sufficient to execuse the sheriff from neglect in not re-selling the property, after the first bidder had failed to pay his bid. Newton vs. State Bank, 14 Ark. 15. It is not to be expected of a sheriff, who has a number of sales to make within a few hours, that he shall stop selling, after an item of property is sold, until the money is paid for it, and if not, to set it up again for sale; but his duty must be performed with due regard to all the interest committed to his care on that day, and if he really had not time to re-sell the property, no one should be allowed to hold him chargable with neglect of official duty.\\nThe next question is, when then should he have sold the property so levied upon? In Newton vs. The Bank, we held a sale under the same writ, made on the second day of the term of the court to which the writ was made returnable, even though erroneous and perhaps reversible upon error for that reason, not to be void, and that a sale on that day, the writ still being in force, would communicate title in the property to the purchaser. But we did not decide, in that case, that the sheriff1 was bound to sell on that day. And, after that time, his power to sell under the writ, ceased. An officer derives his power to levy, and sell property (particularly real estate) from the judgment and the writ, not from the statute; Whiting & Slark vs. Beebe, 7 Eng. 554; and although there are some authorities, which would seem to sanction a sale of personal property, which had pi'eviously been levied upon, after the return of the writ, without a ven. ex., the better rule seems to be to require the officer to act under authority of a writ, both in making the levy and the sale. Whiting & Slark vs. Beebe. The effect of the return made by Borden, on the writ in this case, was to leave a subsisting levy to be disposed of by sale upon further process for that purpose, and, with his return thus made, his liability; under that process, ceased; and if the plaintiffs had desired to pursue their remedy upon the judgment to final satisfaction,^ they could only do so by an alias writ to sell the property levied upon. The subsequent sale of th\\u00e9 real estate, made by Borden, without a writ, was no disposition of the property. ITis acts, without process, were void, and in no wise tended to satisfy the judgment.\\nIf, upon a re-sale of the property, it should sell for less than it was bid off at, in the first instance, the statute provides a remedy against the first bidder for the deficit. This remedy is a just punishment upon an intermeddling bidder, who declines to make good his bid, and is at the same time important to both the debtor and the creditor: but this redress, such as it is, is given against the bidder alone. If the money is not made out of his estate, there is no responsibility resting upon the sheriff to pay it; nol-is he bound to advance it, in the first instance.. The recovery, in fact, is one by the debtor and creditor, for although, under the statute, the suit is brought in the name of the sheriff, he is evidently but a nominal party, and it is even doubtful whether he is responsible for costs: but of this, we are not, at present, to consider.\\nFrom the view thus taken of the legal liability of the sheriff, it follows, that the demurrer to the 3d and 4th breaches, was properly sustained; and, if sustained upon the ground that the return which was set out in the breach, was not sufficient to charge the sheriff, it follows, that it was a good defence to the 1st and 2d breaches; and, consequently, the 2d plea of defendant to these breaches, was properly held to be good.\\nThe remaining question of law is that arising upon the demurrer to the plea.averring that the property, levied upon and sold by the sheriff, did not belong to Anthony, the defendant in execution.\\nThis question would have been properly before us for consideration, if, in fact, a sale of the property bad been made; but, as we have held, tbat a sale without a writ was void, it follows that no title whatever passed; and it becomes unnecessary to determine to whom the property belonged, or whether, if sold, the sheriff'might withhold,- from the plaintiff, the money for which the property sold, upon' the ground that the property in fact belonged to'-a third person.\\nIt may not be amiss, however, to remark that there are strong reasons for sustaining the plea. If personal property, the sheriff would be liable- to an action of trespass for taking it; and should a recovery be-had against him by the owner of the property, if \\u2022remaining unsold, the property would become his, because the payment of the damages would be all that the owner could recover. Suppose'this to have taken place after levy, and before a sale of the property, it could hardly be said that the sheriff, because, by mistake he had levied upon the property, should be compelled to follow up his levy and sell property which he had paid for out of his own- pocket, and which was in law his, and apply the money to the- satisfaction of the execution; and if not before sale, after the sale, as he is. still liable ever to the true owner of the property, it would seem but just that he should' be permitted to show the fact that the property was not the defendant's, in order that he might retain the' money as an indemnity against loss, if sued for the property, or for the money for which it was sold, either of which might be done. Ineden vs. Hooper, Cowp. 419; Walcott vs. Pomeroy, 2 Pick. 121; Owing vs. Friar, 2 A. K. Marsh. 268.\\nBut, as this question is not properly presented upon the recordr after the disposition made of the other questions of law, we wilL e-xpress no definite opinion upon it.\\nThe only important question involved was as to the liability of the sheriff upon his return, which, under the issue formed,, must be taken as true, and that we have already decided. Let. the judgment be affirmed.\"}"
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