Frank G. Smith

The case involved a garnishment proceeding in which Malvern Gravel Company obtained a default judgment against Kochtitzky & Johnson, Inc. as garnishee for an $800 debt allegedly owed by a subcontractor on a federal levee construction project. After the circuit court sustained a demurrer to the garnishee's answer without prior notice to its counsel—who had understood that no judgment would be entered until the demurrer was heard at a mutually convenient time—the garnishee sued to vacate the judgment entered at a later term. The Arkansas Supreme Court reversed the denial of that motion, concluding that the misunderstanding among counsel constituted an unavoidable casualty under the statute that prevented the garnishee from presenting its defense that it held no funds of the debtor. The judgment was therefore set aside with directions to hear the garnishee's answer on the merits.

procedure

The case concerned a $300 school district warrant issued without legal authority to purchase land, which was later assigned by the payee to Arkansas Tractor & Equipment Co. and then sold to intervener J.P. Melton. The trial court canceled the warrant as invalid and found that the tractor company had guaranteed to Melton that the warrant would be redeemed after earlier warrants were paid. On appeal by the tractor company, the court reviewed conflicting testimony about whether any guaranty was made and affirmed the lower court's finding that the guaranty existed, as it was supported by the preponderance of the evidence.

business & regulatory

This case arose from a prior taxpayer suit, Johnson v. Donham, in which Pulaski County was barred from using county funds to buy a law library for the prosecuting attorney. Attorney Price Shofner, who had represented the taxpayer, filed a claim with the county court for his fees and advanced costs after prevailing in that litigation; the claim was disallowed, but the circuit court awarded $450 plus costs on appeal. The county appealed, arguing there was no lawful contract because the prosecuting attorney's consent had not been obtained under Act 74 of 1933 and that no contract existed at all. The Supreme Court affirmed the award, holding that the prosecuting attorney's consent was unnecessary because he was adverse to the suit and had refused to act, and that the evidence supported a contingent-fee agreement with the county judge for a reasonable fee payable only upon success.

procedurebusiness & regulatory

In Romich v. Kempner Bros. Realty Co., the dispute centered on ownership of a sprinkler system installed in a factory building after a mortgage foreclosure suit had begun but before the sale. The appellant, who purchased the lessee's assets from a receiver, claimed the system as removable personal property under the lease terms, while the appellees, who acquired the real estate through foreclosure, argued it was a fixture that passed with the property. The court reversed the chancery court's decision awarding the system to the appellees, holding that under the liberal rule applicable between landlord and tenant successors, the system did not become a fixture because the lease permitted its removal, it was installed with agreement for removal, and it could be taken out without damaging the building. The reasoning emphasized the parties' intentions, the post-mortgage installation, and that removal would not affect the mortgagee's original security.

property

The case involved a building and loan association seeking to foreclose on a mortgage executed by Lena Higgins to secure a portion of an original loan made to W.M. Carter, which had been assigned to the receiver of the association. Higgins had purchased a lot from Carter subject to the original mortgage and later signed a new mortgage that included her lot and an additional lot she owned, in exchange for an agreement to make certain payments that would release her property from the lien. The court dismissed the foreclosure action, holding that the evidence showed the parties intended the new mortgage to discharge the lien on Higgins's lots upon her payment of $100 plus a $25 attorney's fee, which she had completed, and that general relief could include reformation of the instrument to reflect this understanding.

property

The case involved Hays Construction Company seeking to compel payment from the State Refunding Board for expenses it incurred preparing to perform a paving contract with the State Highway Commission, after the Commission breached due to lack of funds and permitted only the federally funded portion to be completed and paid at the contract rate. The company had filed a claim that the Highway Audit Commission recommended settling for $6,900, which the Refunding Board approved, leading to this suit for a warrant and payment after the circuit court denied relief. The Supreme Court affirmed, ruling that the claim was for damages arising from the breach—including costs tied to anticipated profits on the unperformed work—and that the Refunding Board lacked authority to authorize such payments under the governing statutes, as held in the controlling precedent of Smith v. Refunding Board.

business & regulatory