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

The case involved a father suing a railroad company for damages after his 23-year-old son's body, placed on the tracks by murderers to conceal the crime, was run over and mutilated by a train; the father sought recovery on counts of negligence in failing to discover the body and in failing to promptly gather the remains afterward. The court decided that the railroad could be held liable for negligently running over the body under the lookout statute, as the body was entitled to protection from mutilation due to the next of kin's right of sepulture, and that mental anguish damages could be recovered for such an actionable wrong even absent pecuniary loss. However, the judgment awarding $500 was reversed and remanded because the trial court erred in submitting the failure-to-gather claim to the jury, as evidence showed the company had taken appropriate steps once notified and the coroner had intervened. The retrial was limited to the negligence claim regarding the train's operation.

torts & liability

The case involved a dispute over a life insurance policy issued by Guarantee Fund Life Company on Jonathan Dabbs's life, with his wife as beneficiary. After the policy lapsed due to nonpayment of premiums in 1931, the insured requested and received the cash surrender value, effectively cancelling the policy. The beneficiary sued the company after the insured's death in 1934, alleging that the cancellation was invalid without her consent and involved fraudulent misrepresentations about reinstatement. The court affirmed the lower court's findings that there was no fraud, that the policy had lapsed, and that the insured had validly exercised his option to surrender for cash, as the policy terms allowed for such actions and required re-examination for reinstatement which was properly handled.

business & regulatory

The case concerned two school warrants totaling $1,010 issued by the Wellford School District to a bond broker as a fee for refunding services on $18,500 in outstanding bonds; after the broker assigned the warrants to W. C. Turner, the district sued to cancel them on grounds that the board meeting was unauthorized and that no bonds had ultimately been refunded. The trial court canceled the warrants and enjoined payment, but the appellate court reversed. It held that the original contract made the fee contingent on the proportion of bonds actually refunded and that the broker had earned a partial fee of $700 on $10,000 in bonds that were negotiated but not refunded solely because the district failed to pay required interest, leaving a net balance of $415 after prior payments. Because the warrants were not negotiable instruments under the law merchant, they remained subject to defenses, yet the court concluded they constituted valid obligations of the district for that reduced amount, payable in order of registration. The decree was reversed and judgment entered for the assignee in the amount of $415.

business & regulatoryproperty

The case concerned a driver who struck a central pier supporting a railroad underpass while traveling on State Highway No. 10, resulting in personal injuries and vehicle damage. The court reversed a judgment in favor of the plaintiff and dismissed the action. It held that the plaintiff, who had previously driven through the underpass and admitted seeing warning signs, was negligent in failing to exercise ordinary care to avoid the pier despite ample clearance between the supports and level road conditions. This negligence was the proximate cause of the harm, consistent with the outcome in a controlling prior case involving the same location. The railroad's duty to maintain safe crossings was noted but not reached due to the contributory negligence finding.

torts & liabilitybusiness & regulatory

This case involved a dispute over disability benefits under an insurance policy issued by Sovereign Camp Woodmen of the World to Isaac L. Cole. Cole sued the company after it denied his claim for total disability benefits, and the trial court awarded him judgment. The appellate court affirmed, finding sufficient evidence that Cole was totally and permanently disabled, that the physician's testimony was properly admitted as the patient waived privilege, that the juror challenge was unavailing due to unused peremptory challenges, and that the affidavits were admissible to show proof of claim had been made, not as substantive evidence. The court held there was no error in the proceedings.

business & regulatoryprocedure

The case concerned whether the Logan County Chancery Court could assert jurisdiction over E.W. Beeson and the Beeson-Moore Stave Company, both served in Pulaski County, via an amended complaint in a pending foreclosure action that accused them of converting heading that a receiver had taken into custody under court order. The court denied the petition for prohibition, holding that the Logan Chancery Court could proceed against the out-of-county petitioners on the service obtained. The core reasoning was that once the chancery court properly acquired jurisdiction over the foreclosure and placed the mortgaged property in the receiver’s possession, any interference with that custody subjected the wrongdoers to the court’s continuing authority, which could be enforced by process directed anywhere in the state.

procedureproperty

The case concerned a lawsuit by property owner Partain and intervening bridge district taxpayers to enjoin the Arkansas State Highway Commission from building a viaduct or overpass on Jefferson Street in Van Burén adjacent to their properties and the district's bridge, alleging it would destroy property values without compensation. The trial court issued a permanent injunction barring construction. On appeal, the court ruled that the Commission could build the viaduct if it first compensated affected property owners for damages, as authorized by city ordinance and funded by the Commission, and that the bridge district's agreement was valid because the project served the bridge's primary highway purpose without improperly interfering with utility uses. The core reasoning was that municipalities may alter street grades but must pay resulting damages, the Highway Commission's allocated funds satisfied this requirement, and secondary bridge uses could not override highway needs under the governing statutes.

propertyprocedure

The case involved a plaintiff who sued the Coca-Cola Bottling Company after consuming a bottle containing glass particles, which caused lacerations, bleeding, pain, and anxiety. The jury awarded the plaintiff $500 in damages, and the bottling company appealed, arguing that the verdict was against the weight of the evidence. The court affirmed the judgment, holding that there was substantial evidence supporting the verdict, including the plaintiff's account and witness observations, and that the company's evidence on its bottling procedures was not conclusive on the issue of negligence, which was properly decided by the jury.

torts & liability

The case involved a beneficiary's lawsuit to recover on an accident insurance policy after her son, who had previously contracted Tropical Sprue while working in Cuba, died from a cerebral hemorrhage caused by a falling crutch striking his head. The insurer denied the claim, arguing that the application concealed the disease, that the policy never took effect because the insured was not in sound health at delivery, and that the disease contributed to the death rather than an accident being the sole cause. The trial court entered judgment for the beneficiary, and the appellate court affirmed, finding that the soliciting agent's knowledge of the condition and amendments to the application prevented a finding of concealment or breach of the good-health condition, and that the accident qualified as the proximate cause under the policy language even if the disease increased susceptibility. The court applied precedents holding insurers liable when an accident proximately causes death despite a pre-existing condition as a secondary factor.

business & regulatory

The case concerned whether Miller County could pay essential statutory expenses for a 1934 circuit court term, including juror and witness fees totaling $2,427.60, after the county court had already allowed claims exceeding the year's revenues of $52,263.49. The circuit court had directed payment of these expenses despite the excess, but the Arkansas Supreme Court reversed that ruling. The court held that Amendment No. 10 to the state constitution bars any county allowance or warrant in excess of revenues from all sources for the fiscal year, with no exception for mandatory or indispensable governmental costs. Prior decisions interpreting the amendment's plain language were reaffirmed, emphasizing that validity depends on revenues at the time of allowance and that exceeding limits violates the constitutional mandate for sound fiscal operations.

proceduretaxes

In Freeman v. Benton, the appellant was convicted in municipal court for violating a city ordinance prohibiting the transport of intoxicating liquors, with the minimum fine suspended during good behavior. Nearly two years later, following a separate conviction for drunkenness, the suspended fine was imposed, prompting a habeas corpus petition after the appellant's custody that the circuit court denied. The court affirmed the denial, reasoning that the mayor lacked authority to suspend execution of the sentence indefinitely, but the original conviction remained enforceable because the statute of limitations governed only the commencement of prosecutions, not the later enforcement of a valid judgment.

criminal lawprocedure

The case involved a dispute over liability for unpaid notes on an oil and gas lease originally purchased by D. S. Brooks, president of Root Refining Company, who signed the notes individually though the purchase was for the company's benefit. After two years, a new lease was executed with revised payment terms, and the company made 25 monthly payments of $400 each, with the final check explicitly marked as full payment of the balance. Ezzell, the seller, cashed the check after noting his objection but retained the proceeds without returning them. The court decided that this constituted an accord and satisfaction, barring further claims for interest or the balance, and reversed the lower court decree while dismissing the suit. The core reasoning was that the check's notation and accompanying letter provided clear notice of the settlement terms, which Ezzell accepted by retaining the funds despite awareness of the intent.

business & regulatoryproperty

The case involved the National Refining Company petitioning for a writ of mandamus to compel the Arkansas State Refunding Board to refund a claim against the State Highway Commission that had been approved by the Highway Audit Commission under Act No. 11 of 1934. The Refunding Board admitted the facts but refused to act because the claimant would not allow its books to be audited to verify the claim's validity. The trial court sustained a demurrer to the Board's response and ordered the refund, but the Supreme Court reversed. The court held that the Refunding Board's duties were discretionary rather than ministerial, as the statute tasked the Board—composed of high executive officers—with determining the validity of claims before issuing refunding bonds, and the Audit Commission's role was limited to investigation and reporting. Mandamus cannot control executive discretion in such matters.

procedurebusiness & regulatory

This case involved a buyer, Mays, who sued Auto Sales Company to rescind a contract for an automobile and recover repair costs after discovering the vehicle was defective and used rather than new as represented. The court determined that Summers, who negotiated the sale, was acting as an agent for Auto Sales Company based on evidence including the company's payment of his occupation tax, acceptance of trade-ins, and involvement in repairs and deal approvals. Although the company argued insufficient service of process, its filings of pleadings constituted an appearance that waived that issue. The court held that rescission was unavailable because Mays retained and used the car, so damages were limited to the difference in value between the car as represented and its actual condition, resulting in a reduced award of $426 instead of the lower court's higher amount.

business & regulatorypropertyprocedure