페이지 이미지
PDF
ePub

those included in the plat, and that this invali- It is argued that, if the description in dates the formation of the district."

question was contained in a private contract A very recent case is that of McRaven v. between the parties, it would be sufficient, Clancy, reported in 171 S. W. 88. It was and we are cited to the case of Central Irri. there held that the publication of an ordi- gation District v. De Lappe, 79 Cal. 351, 21 nance establishing an improvement district Pac. 825, in which the Supreme Court of Calmust be according to the statute, which is ifornia appears to take that view. We are mandatory and compliance with which is not cited to any other case in the excellent jurisdictional, so that, one of the lots not be- briefs filed in this cause, but this case is not ing included in the publication, though lots in harmony with our own cases on that subon both sides of it, and owned by the same ject. We are committed to the rule that the parties, were included, the district was not description contained in the published notice created.

must be such that the landowner reading it [1] Does the description given measure up may easily ascertain whether or not his to the requirements of the cases quoted? lands are included, and a clear statement of The map filed with the report shows that the reason for the rule is contained in apBig creek runs near, but not to, the corner

pellant's brief Parties to a contract underdesignated in the call found in the engineer's stand the subject with respect to which they report, but in the notice as published the are dealing, and any description which with call is to the corresponding corner in the certainty identifies it should be sufficient to northwest quarter instead of the northeast bind them by any agreement they make with quarter of the section. If this call controls the description in the published notice, the respect to it. To any proceedings of this west half of the northeast quarter and the which the landowner has. He does not read

character notice is the first information east half of the northeast quarter, which are the description contained in it with knowlembraced within the district, are omitted

edge that his lands are the subject-matter from the notice. It is urged that there are two fatal defects in the description, one of with respect to which the notice is given, these being in the designation of an errone- and his only information comes from the noous corner to which the line should run from tice itself; and it is proper that this notice the bank of Big creek, and that the other is should be such as easily ascertains the subthe designation of a portion of the boundary ject of the notice. He should not be required in the following terms:

to speculate as between pertinent clauses “Thence in a southwesterly direction along the other shall prevail, and he should not be

whether the courts will hold that the one or the east, south, and west bank of Big creek.

The map accompanying the engineer's re- penalized in case he undertakes such speculaport shows the course of Big creek, and if tion for reaching the wrong conclusion. that creek was made the boundary of the dis

Counsel for appellees urges that, if the calls trict, the district would include lands lying defining the boundaries of this district were east, south, and west of the creek, and that read in reverse order, there would be no unpart of the description would therefore be certainty about the point intended to which reasonably certain if the point was correctly the line should run from the creek. Even if designated to which the boundary line should this be true, that fact would not meet the obrun from the bank of the creek. But this jections which we have urged. As has been description does not show from what point said, the landowner does not know in adthe boundary line of the district departs vance what lands are intended to be improvfrom the bank of the creek, and because of ed, and the district in question was defined that fact the error in the description of the by numerous calls of direction and distance point to which the line should run is mate- to various fixed points, and the possibility rial and fatal. Even though it be assumed that the boundary of the district might be that this line should be a straight one, it does correctly known by tracing the calls in renot appear from which point on the bank of verse order is not sufficient to meet the rethe creek the line should be drawn, and the quirement that a notice be published from point named is more than a half mile from which the landowner may easily ascertain the bank of the creek.

whether or not his lands are included. [2] It is settled by the decisions of this We conclude, therefore, that the publishcourt that, in defining the boundaries of a ed notice was insufficient because of the ertract of land, where the descriptions given ror indicated, and that the court was without are uncertain and conflicting, distances yield jurisdiction in all proceedings had subseto courses, and courses to monuments. Here quent to that date. neither the course nor the distance from the The decree will therefore be reversed, and bank of the creek to the fixed point is given, the cause remanded, with directions for the but, even though they were, they would have entry of a decree in accordance with this to yield to the location of the fixed point. opinion.

[ocr errors]

that the defense to the action be sufficiently SMITH et al. v. MINTER et al. (No. 160.) alleged, but that it shall be adjudicated that (Supreme Court of Arkansas. Oct. 11, 1915.) the defense to the action is a valid one, before

the judgment is vacated or set aside; the 1. JUDGMENT O391 VACATION PRO

court determining first whether the grounds CEEDINGS.

In order to vacate a judgment for fraud to vacate exist, and then the validity of the practiced by the successful party, it is necessary defense alleged. that the defense to the action be sufficiently al

[2] The court found that all the interested leged, and that such defense be adjudged a valid

parties had notice and opportunity to make one.

[Ed. Note. For other cases, see Judgment, defense, that the parties to the suit “were Cent. Dig. $ 752; Dec. Dig. On 391.]

present each by his attorney of record, with 2. APPEAL AND ERROR 907_REVIEW_PRE- full power to act, and that the judgment SUMPTIONS.

was a subsisting good and valid judgment." In an action to set aside a judgment for fraud on the part of defendants' attorney in con- Testimony could have been introduced showfessing it, in the absence of a bill of exceptions, ing that the attorney consenting to the judgit will be presumed that the court's finding that ment was authorized to do so, and if apthe attorney was authorized to confess judgment pellant introduced any testimony tending to was sustained by the evidence.

[Ed. Note.- For other cases, see Appeal and show a valid defense, it was not preserved Error, Cent. Dig. $8 2899, 2911-2916, 3673, by a bill of exceptions, and this court cannot 3674, 3676, 3678; Dec. Dig. Om 907.]

review the question. In London v. Hutchens,

88 Ark. 467, 114 S. W. 919, the court said: Appeal from Circuit Court, Benton County ;

"The appeal is one from the order refusing to Jos. S. Maples, Judge.

set aside the dismissal of his proceedings for Suit by Adelaide L. Smith and others vacation of the judgment for want of prosecuagainst W. L. Minter and others to enjoin the tion. * * * * London had proceeded under the collection of a judgment. From a judgment entry indicates that the court had evidence be

* * * The record

statute to have it set aside. for defendants, plaintiffs appeal. Affirmed. fore it, and the presumption is always indulged, Appellants brought this suit to enjoin the that the evidence would sustain the action of

in the absence of evidence being brought here, collection of a judgment of the circuit court, the court." rendered against them as sureties on the re- In Young v. Vincent, 94 Ark. 115, 125 S. taining bond of E. G. Nelson, in an unlawful W. 658, it was said: detainer suit, and asked also for a vacation “Where the record does not contain the eviof the judgment for a fraud, alleging that dence adduced at the trial, 'every intendment is the attorney for the defendant in the suit indulged in favor of the action of the trial court, had confessed judgment without authority to ceptible of proof that could have aided appel

and this court will presume that every fact susdo so, and that one of the sureties had been lee's case was fully established. The salutary released and no judgment taken against her. rule of law is that every judgment of a court A demurrer interposed was treated as a mo- of competent jurisdiction is presumed to be right, tion to transfer, and the cause was accord- affirmatively that it was erroneous.'

unless the party aggrieved will make it appear ingly transferred to the circuit court. A mo

In Foohs v. Bilby, 95 Ark. 302, 129 S. W. tion was then made to dismiss upon the

1104, the court said: ground that the matter was res adjudicata,

"The motion to vacate the judgment under and upon a hearing the motion to dismiss section 4431 [Kirby's Dig.], supra, was heard on was treated as one to vacate the former evidence, and, the evidence' which the court judgment, and the court held said judgment heard and on which it acted in setting aside the to be valid, and that no defense was at- judgment in question not being brought into

the record, we must presume that every fact tempted to be interposed now that did not necessary to sustain the finding and judgment of exist and was known to the parties having the court was proved that could have been the right thereto at the former adjudication. proved." It further adjudged that, since one of the be presumed that the court's findings of fact

“In the absence of a bill of exceptions, it will sureties on the bond had been released in the were based on the evidence, where there is nothjudgment rendered, the others should only be ing in the record to rebut that presumption." bound to the payment of two-thirds of the Swing v. Brinkley Car Works & Mfg. Co., 78

Ark. 198, 94 S. W. 54. judgment, and reduced it accordingly. There was no bill of exceptions in the record.

The allegations of the answer of the de

fendant, Nelson, in the first suit are pot W. N. Ivie, of Rogers, for appellants. Ap- proof of the facts therein set up, and, as alpellees, pro se.

ready said, the court in this proceeding found

that the judgment attempted to be vacated KIRBY, J. (after stating the facts as was valid and subsisting, and that the atabove). [1] Appellants contend that the court torney confessing it had authority to do so, erred in refusing to vacate the judgment and and it must be presumed, in the absence of insist that the allegations to the complaint a bill of exceptions, that the court's findings were sufficient and that a good defense was of fact were based on the evidence; there shown to exist. In order to vacate a judg- being nothing in the record to rebut that prement for fraud practiced by the successful | sumption. party obtaining it, it is necessary, not only The judgment is accordingly affirmed.

[ocr errors]
[ocr errors]

tition for such order, signed by 15 bona fide ST. LOUIS & S. F. R. CO. V. STATE. citizens residing within the territory af(No. 149.)

fected by the petition was ever filed, and as (Supreme Court of Arkansas. Oct. 4, 1915.) we agree with appellant in this contention 1. RAILROADS Ow9-RAILROAD COMMISSION, we have found it unnecessary to consider ORDER-PETITION-SUFFICIENCY.

An order of the Railroad Commission of any of the other defenses set out in the anArkansas, based upon a petition signed by 17

swer. corporations and partnerships and 1 natural Appellant's demurrer was overruled, but person, requiring one railroad to establish a upon the trial before the court sitting as a connection with another is void, as not being jury considerable evidence was offered, at signed by 15 bona fide citizens residing within the territory affected, within the direct terms of the conclusion of which the court found apActs 1907, p. 357, § 1, since "bona fide citi- pellant guilty as charged, and this ppeal zens, as there used, means permanent resi- is prosecuted from the judgment of the court dents, as distinguished from mere sojourners, and refers to individuals, to the exclusion of imposing a fine against appellant. corporations and copartnerships.

[1] It is conceded by counsel for the state [Ed. Note. For other cases, see Railroads, that, although there are 18 names signed to Cent. Dig. $$ 12-19; Dec. Dig. 9.]

the petition, all these signers are corpora2. CITIZENS O2–CORPORATION.

tions and copartnerships, except one; but A “citizen” ordinarily means only a natural it is argued that the provisions of the statperson, and will not be construed to include

a ute in regard to the number of signers is corporation, unless the general purpose and import of the statute in which the term is found directory, and that the statute was substanseems to require it (quoting Words and Phrases, tially complied with when 15 names of indiCitizen).

viduals, corporations, and copartnerships [Ed. Note. For other cases, see_Citizens, were signed to the petition. Section 1 of Cent. Dig. 88 1, 13-16; Dec. Dig. Ow2.] 3. RAILROADS Om9_RAILROAD COMMISSION-the Railroad Commission proceeded in mak

Act 149 of the Acts of 1907, under which STATUTE-CONSTRUCTION.

It being presumed that the petition would ing the order in question, provides that the not be signed without consideration of its pro- Commission shall be empowered to hear and posed demands, the word "citizen” will not be construed to include corporations, in the absence consider all petitions for train service, deof a provision in the act creating a means by pots, stations, spurs, side tracks, platforms, which the assent of a corporation may be evi- and the establishment, enlargement, equipdenced.

ment, and discontinuance of the same upon [Ed. Note. For other cases, see Railroads, the right of way of any railroad in this Cent. Dig. $8 12–19; Dec. Dig. 9.]

state: Provided, said petitions shall be Appeal from Circuit Court, Washington signed by at least 15 bona fide citizens reCounty; Jos. S. Maples, Judge.

siding in the territory sought to be affected The St. Louis & San Francisco Railroad by said petitioners. In the case of St. Louis, Company was convicted and fined for fail-I. M. & S. R. Co. v. Bellamy, 113 Ark. 384, ure to obey an order of the Railroad Com- 169 S. W. 322, it was decided that a petimission, and it appeals. Reversed. .

tion “ 'signed by at least 15 bona fide citizens Moore, Smith, Moore & Trieber, of Little residing within the territory sought to be Rock, W. F. Evans, of St. Louis, Mo., and B. affected by said petition' is essential to give R. Davidson, of. Fayetteville, for appellant. the Commission jurisdiction” to act upon Wm. L. Moose, Atty. Gen., and Jno. P. the matters mentioned in the act quoted Streepey, Asst. Atty. Gen., for the State. from.

It has been many times decided that a SMITH, J. An information was filed be-corporation is not a citizen, within the meanfore a justice of the peace of Washington ing of the equal privileges and immunities county, in which it was charged that the clause of the federal Constitution; and this appellant railroad company had failed and court has decided that section 18, article 2, refused to comply with order No. 3085 of of the Constitution of this state, containing the Railroad Commission of Arkansas, which the same provisions as those of the federal said order required appellant to establish Constitution, does not apply to corporations. and maintain a joint interchange track at C., R. I. & P. R. Co. v. State, 86 Ark. 423, Fayetteville with the Kansas City & Mem-111 S. W. 456. And while it is held that phis Railroad Company, and to do switching corporations are persons within the meaning thereon. Judgment was rendered by de- of the fourteenth amendment to the federal fault in the justice court, and an appeal Constitution, which provides that no state was prosecuted to the circuit court, in which shall deprive any person of life, liberty, or court a demurrer and an answer were filed. property without due process of law, nor Various grounds of defense were set up in deny to any person within its jurisdiction the answer, which we need not consider the equal protection of the law, it has been here; but, among other defenses, it was al- as often decided that corporations are not leged that the order of the Railroad Com- included in that portion of the same amendmission upon which the prosecution was ment which provides that no state shall based was void, for the reason that no pe- make or enforce any law which shall abridge the privileges or immunities of citizens of grant the relief prayed until the signer has the United States. A number of the cases concluded that the relief prayed for should so holding are cited in the opinion of this be granted. If the rule were otherwise, the court in the case of Chicago, R. I. & P. R. requirement of a petition would be futile. Co. v. State, supra.

For a corporation to exercise this function [2] A number of definitions of the word would require investigation and considera"citizen" are found in volume 1 of Words tion by its directors and a conclusion to be and Phrases, and we quote the following reached by them. No mere stockholder or definition there given:

officer of a corporation, upon his own initia“ 'Citizen' ordinarily means only a natural tive, would have the right to declare the person, and will not be construed to include a corporate will. Some other officer or stockcorporation, unless the general purpose and import of the statute in which the term is found holder might be of a contrary opinion, and seem to require it. International & Life Assur. to avoid this conflict a corporation, if auAss'n v. Haight, 35 N. J. Law, 279, 282.” thorized to act at all, would have to act in

In the case of School Dist. No. 11 v. some manner permitted by statute. But the School Dist. No. 20, 63 Ark. 543, 39 S. W. Legislature having made no provision by 850, the court considered the meaning of the which the assent of a corporation might be word "citizen” as employed in the statute evidenced, but, upon the contrary, having authorizing petitions for change of bounda- used language which in its ordinary accepries of school districts. The court, through tation would refer only to individuals, we Bunn, C. J., said that, from the common un- have concluded that the petition was not derstanding of the meaning of the word signed as required by law, and that the Rail"citizen,” and from the fact that some other road Commission was therefore without juword than "citizen” is employed in the stat- risdiction to make the order upon which utes authorizing these changes, whenever per- this prosecution is based, and the cause will sons other than electors were included, the therefore be reversed and dismissed. word "citizen," as there used, meant an "elector." It is not customary to speak of corporations or of copartnerships as residing

W. B. THOMPSON & CO. v. LEWIS. in a particular locality. They must, of

(No. 152.) course, have their situs, or, as is sometimes (Supreme Court of Arkansas. Oct. 11, 1915.) said, their "domicile," in a particular lo

1. FIXTURES 4 ANNEXATION-INTENT. cality; but it would not be said that they

It will be presumed that the owner of land were residents of that locality.

who attaches chattels thereto intends that they Moreover, the use of the qualifying words shall become a part of the realty, and the inten"bona fide" is significant. Evidently the

tion in attaching is the test of whether the chat

tel becomes an irremovable fixture. Legislature did not intend to burden the

Ed. Note.-For other cases, see Fixtures, Railroad Commission with the consideration Cent. Dig. $$ 3, 6; Dec. Dig. ww4.] of petitions for the things authorized to be 2. FIXTURES C33–ANNEXATION BY TENANT petitioned for unless at least 15 bona fide -SUBSEQUENTLY ACQUIRED FEE. citizens residing in the locality to be affected he placed fixtures on the land,

his leasehold es

Although defendant had only a lease when were sufficiently interested to petition there- tate merges in the fee which he afterwards acfor. It is no doubt true that a corporation quired by purchase, so that fixtures already ator a copartnership might be interested and tached are thereafter irremovable. greatly benefited by relief such as

[Ed. Note.-For other cases, see Fixtures, was

Omw prayed for in the petition in question; but Cent. Dig. &$ 64, 65; Dec. Dig. 33.]

On 35-ANNEXATION-INTENTthese are questions which the Legislature 3. FIXTURES

EVIDENCE-SUFFICIENCY. apparently has left for the action of "citi

Evidence held sufficient to show intention zens residing in the locality to be affected," of owner that trade fixtures attached to the which language we construe to mean perma- land should become a part of the realty. nent residents, as distinguished from mere Cent. Dig. $$ 67–79; Dec. Dig. 35.]

[Ed. Note.-For other cases, see Fixtures,

[, , sojourners, and as excluding corporations and copartnerships, and including only indi

Appeal from Circuit Court, Union County; viduals. If corporations or companies were chas. W. Smith, Judge. taken into account, the question of the au-l Action by W. B. Thompson & Company

From a judgment for thority of the officers signing the names of against S. J. Lewis. such corporations or companies would arise, defendant, plaintiff appeals. Reversed and where the statute did not provide what of remanded, with directions. ficers should sign for such companies or J. B. Moore and Geo. M. Le Croy, both of corporations.

El Dorado, for appellant. S. J. Lewis, pro se. [3] The presumption is not to be indulged that petitions will be signed upon mere pres- McCULLOCH, C. J. Appellants obtained a entation; but upon the contrary, the pre-judgment in the circuit court of Union county sumption of law must be that signers will against appellee for debt due by contract, and not seek to put in motion the machinery of sued out execution on the judgment, which the law to require a railway company to I was by the sheriff levied on a small tract or

[ocr errors]

parcel of real estate on which was situated a [2] Appellee was not the owner of the soil steam cotton gin plant. Appellee filed a at the time he established the gin plant thereschedule claiming the machinery in the gin on, but by the purchase of the fee his leaseplant as exempt from sale under execution. hold estate in the soil became merged in the The circuit court allowed the claim of exemp- greater estate, and the principle announced in tions, and an appeal has been prosecuted to Ozark v. Adams, supra, applies. this court.

Mr. Ewell lays down the rule, which ap[1] The facts in the case are undisputed. pears to be overwhelmingly supported by the Appellee leased the lot from one Bolding in authorities, that: the year 1903 and erected the gin plant, “As against one who is the owner of the eswhich consisted of a frame two-story build- tate in fee as well as of the fixtures, they are ing, and placed therein the machinery con- part of the freehold and cease to be goods and

chattels, and therefore may not be seised as sisting of engine and boiler and gin stand goods and chattels by the sheriff under a fi. fa. and cotton press, together with necessary as against the owner of the fee." Ewell on Fixshafting and belting. The machinery was tures (2d Ed.) p. 537. placed in the building in the customary way, Indeed, the same author lays down the rule the boiler resting upon the ground under the that the owner of the fee cannot establish by shed of the building, and is incased in what parol his claim that fixtures attached to the the witnesses termed a mud casing. The soil are chattels for the purpose of requiring cotton gin and press are placed upon sills a levy thereon as that character of property. resting upon the surface of the lot. Ap- The learned author states the proposition as pellee purchased said lot from Bolding in follows: the year 1907, and Bolding conveyed the title "Nor can the execution debtor by parol turn in fee to him. Appellee has continued to own out as chattels for purpose of levy growing and operate the gin since that time.

grass, fruit, or trees, or fixtures annexed to his Our conclusion is that the machinery con- levy of execution thereon as chattels; and, if

land, nor without a severance, authorize the stituting the gin plant did not constitute re- attempted to be done, the levy is void.” Page movable trade fixtures at the time of the 542. levy of the execution and could not be

[3] The machinery involved in this case claimed as exempt. This court, in the case of was attached to the soil in the customary Choate v. Kimball, 56 Ark. 55, 19 S. W. 108, way in which that character of machinery laid down the rules for ascertaining whether was attached for use. The owner has, in an article is a chattel or an irremovable fix- fact, used the property since he became the ture, the principal test being stated as fol- owner of the soil, for a period of about eight lows:

years, so the conclusion is unavoidable, even “The intention of the party making the an- if no conclusive presumption were to be innexation to make the article a permanent accession to the freehold, this intention being in- dulged under those circumstances, that there ferred from the nature of the article affixed, the was no intention to treat the machinery othrelation and situation of the party making the erwise than as a part of the realty. annexation and the policy of the law in relation

The circuit court reached the wrong conthereto, the structure and mode of the annexation, and the purpose or use for which the an- clusion in the case, so the judgment is renexation has been made."

versed, and the cause remanded, with direcIn the later case of Ozark V. Adams, 73 tions to quash the supersedeas. Ark. 227, 83 S. W. 920, we said that:

"Before the aforesaid rules can be applied the primary question is the relation of the parties.''

FEDERAL REALTY CO. v. EVINS. And in that case the court approved the

(No. 162.) rule that:

Oct. 11, 1915.) “Where a chattel annexed to the soil is sold to (Supreme Court of Arkansas. the owner of the realty, that fact changes its 1. VENDOR AND PURCHASER 3–CONTRACTS prior personal character into an irremovable

-CONSTRUCTION. fixture."

A contract in which one party agrees to sell The court cited with approval the case of lands and lots at a stipulated price, and the Curtis v. Riddle, 7 Allen (Mass.) 185. The is a contract for the sale of land, and not cre

other party agrees to pay the stipulated price, intention of the party who annexes the chat- ating an agency for the sale, although other protel being the real test whether or not it re- visions indicate that sales by the purchaser are mains a chattel or becomes an irremovable contemplated by the contract. fixture, the inference is strong, where the purchaser, Cent. Dig. g 3; Dec. Dig. Ow3.]

[Ed. Note. For other cases, see Vendor and party attaching the fixture is the owner of the soil, that it was intended to become a part

2. CONTRACTS Onn 278—RIGHTS AND OBLIGA

TIONS OF PARTIES. of the soil, and not a removable fixture, and Where defendant entered into contract with all of the authorities hold that, under those plaintiff imposing certain obligations upon it circumstances, there must be strong evidence and conferring certain rights, he is not entitled of a contrary intention manifested by some without the performance of his obligations.

to insist upon the enforcement of his rights overt act or circumstance. Bemis v. First

[Ed. Note. For other cases, see Contracts, National Bank, 63 Ark. 625, 40 S. W. 127. Cent. Dig. $$ 1207–1213; Dec. Dig. Om 278.]

« 이전계속 »