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$500, which was issued and signed by D. W. SWIFT v. FIRST NAT. BANK OF LEWIS-Gladney, the cashier of the bank, and deliverVILLE. (No. 195.)
ed to appellant. On the face of this certifi(Supreme Court of Arkansas. Oct. 25, 1915.) | cate the following statement was written: 1. APPEAL AND ERROR Om 866–MATTERS RE
"To be paid upon delivery of an option deed VIEWABLE-PEREMPTORY INSTRUCTION.
executed by J. E. Erwin to P. B. Swift to Where both sides request a directed ver- certain lands in Miller county, Arkansas (5,000 dict, and neither requests any other instruc-acres); said option good for 90 days.” tion, the court on appeal must treat the cause, Afterwards, on the same day, this certifiafter verdict in accordance with request of one party, as if it were before the court on the ques-cate was, by agreement with the cashier, tion of the sufficiency of the evidence to sustain taken up and canceled, and in lieu thereof the jury's verdict.
Swift gave his check payable to A. H. Ham[Ed. Note. For other cases, see Appeal and iter, agent for J. E. Erwin. This check was Error, Cent. Dig. $8 3467-3475; Dec. Dig. certified by the cashier and on its face, and Omw 866.]
before the signature was written the fol2. BANKS AND BANKING Om 154-ACTIONSCONVERSION OF DEPOSIT-EVIDENCE.
lowing: Evidence in an action by a depositor “This is given as first payment of purchase against a bank to recover the amount deposited, money on 5,000 acres of land located in Miller which the bank turned over to a third person, county, Arkansas.” held sufficient to support a directed verdict for
This certified check was delivered by apthe defendant.
[Ed. Note.-For other cases, see Banks and pellant to Hamiter, to be by him sent to Banking, Cent. Dig. $8 502-512, 515, 516, 518– Erwin, who resided elsewhere. It was so 533; Dec. Dig. Om 154.]
sent by Hamiter to Erwin, who returned it 3. BANKS AND BANKING 151-ACTIONS-in about nine days, and denied and repudiCONVERSION OF DEPOSIT - EVIDENCE – AD-ated Hamiter's agency and authority. Ap
Where plaintiff depositor sues a bank for pellant determined to insist upon his conconversion of funds which the bank paid to a tract, and went with Hamiter to the bank third person under apparent authority of the and exchanged this certified check for a draft depositor, and a part of which the third person signed by D. W. Gladney, cashier, drawn on then paid on a personal debt to the vice president of the bank, evidence of the transaction a bank in St. Louis, payable to the order of between the third person and the vice presi- J. E. Erwin. This bank exchange was likewise dent was properly excluded, where it was not sent to Erwin and returned by him. Thereclaimed that the vice president knew the source of the money, or that the bank had any interest upon appellant instituted suit against Erwin in the debt, or that the vice president was act- to enforce the specific performance of this ing in his official capacity in receiving the contract, but this suit was finally decided money.
adversely to him. See Swift v. Erwin, 104 [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. 88 502-512, 515, 516, 518 Ark. 459, 148 S. W. 267, Ann. Cas. 19140, 363. 533; Dec. Dig. Om 154.]
The money remained in the bank in this
condition until June 15, 1911, at which date Appeal from Circuit Court, Lafayette the bank of Lewisville delivered to Hamiter County; George R. Haynie, Judge.
another bill of exchange signed by Gladney, Action by P. B. Swift against the First cashier, and drawn on a bank in St. Louis, National Bank of Lewisville. From a judg- for $500, and payable to the order of A. H. ment for defendant, plaintiff appeals. Af- Hamiter, agent for J. E. Erwin, and Hamiter firmed.
surrendered to the bank the former bill of Chas. S. Todd, of Texarkana, Tex., for ap- exchange payable to the order of Erwin, and pellant. Searcy & Parks, of Lewisville, for on the same day, and immediately thereafter, appellee.
Hamiter indorsed the last-named bill of ex
change as agent for Erwin and presented it SMITH, J. On the 15th of October, 1910, to the bank, which took it up and placed the appellant had on general deposit with the sum of $500 in its books to the credit of First National Bank of Lewisville, subject A, H. Hamiter, agent for J. E. Erwin. Thereto his check, a sum of money exceeding $500. after Hamiter withdrew this money from the On that day he entered into a contract with bank by checks payable to himself. ApA. H. Hamiter, acting as and representing pellant testified that he knew nothing of the himself to be the duly authorized agent of transactions after the issuance of the bill of one J. E. Erwin, for the purchase of 5,000 exchange October 26, 1910, payable to the acres of land for the sum of $25,000, by the order of J. E. Erwin, and that the cashier terms of which contract appellant was to of the bank knew of the circumstances under advance or deposit $500 as part of the pur- which this deposit was made and the use to chase price, and upon the execution of a deed which'it was to be applied. These facts are to said lands by Erwin within the time lim- set out in the complaint which appellant filed ited appellant was to pay $4,500 in addition against the bank and Hamiter, in which in cash, and was to execute notes for $20,000. judgment was prayed for the conversion of On the same day appellant went to the bank the $500 deposit, and appellant testified in and drew out $500, with which he purchased support of these allegations.. from said bank a certificate of deposit of 1 Separate answers were filed by the bank
and by Hamiter. In his answer Hamiter ad-, bank, the fact remains that the cause was mitted his indebtedness, but alleged the fact submitted without objection on this issue, to be that appellant had authorized him to and the pleadings will be treated as amended use said money, and that he had done so to conform to that proof. pursuant to this permission. The answer of  We have here a verdict directed by the the bank contained a general denial of all court in a case where both sides asked a di
a the material allegations of the complaint. rected verdict, and neither side requested any
Judgment was rendered against Hamiter other instruction. Under these circumstances by confession, and the cause went to trial the case stands here upon the question of the upon the issue of the bank's liability aris- suficiency of the evidence to sustain the ing out of its action in permitting Hamiter verdict, the case being treated by us as if to withdraw the deposit on checks payable the jury, under proper instructions, had reto his own order.
turned a verdict in appellee's favor. Gee v. Hamiter became a witness, and testified Hatley, 170 S. W. 72; Sims v. Everett, 113 that he requested appellant to permit him to Ark, 198, 168 S. W. 559; Home Fire Ins. Co.
. ; . use the deposit pending the litigation over the v. Wilson, 109 Ark. 324, 159 S. W. 1113; lands, and that appellant consented for him Belding v. Vaughan, 108 Ark. 69, 157 S. W. to do so upon his agreement to make the 400; St. L., I. M. & S. R. Co. v. McMillan,
le 400; st. i., 1. M. & S. R. Co. v. McMillan, deposit good upon the termination of the liti- 103 Ark. 25, 150 S. W. 112; St. L. S. W. Ry. gation, and that he had intended to do this Co. v. Mulkey, 100 Ark. 71, 139 S. W. 613, but had been unable to do so.
Ann. Cas. 1913C, 1339. Mr. Gladney, the cashier of the bank, testi-  When the evidence is so considered, it fied that after the money had been on de- cannot be said that it is insufficient to supposit for some time he called on appellant port the verdict of the jury. The cashier of and asked him if he had any interest in this the bank testified that appellant disclaimed deposit, and appellant told him that he did ownership of the deposit, and that he pernot have any interest in it. This witness mitted Hamiter to check against the deposit further testified that Hamiter told him that without knowing that this action was unthe money was his to use, and that he had
he had authorized, and that the bank derived no no information to the contrary, and did not profit or advantage from Hamiter's withknow what use Hamiter intended to make drawal of the deposit. Hamiter testified or had made of the money, but that he did that he was authorized to deposit and to know that the bank was not concerned in the redeposit the fund in the manner which he disposition made of it and had derived no had done, and thereafter to check against it profit or advantage from this use.
in the name in which the deposit was made. Appellant offered to prove that one of the These facts being true, the bank was not checks so drawn by Hamiter was for the sum liable to appellant, and the court properly of $200, and that with this money Hamiter so directed the jury. paid a private debt due by him to a Mr. Du
 We think no error was committed in Bose, who was at the time vice president of excluding the evidence of the payment of the bank. No attempt was made, however, the debt due Du Bose, as no attempt was to show that Du Bose had any knowledge of made to show that Du Bose knew the source the transaction or knew the source from of the money, or that the bank had any inwhence the money was derived, nor was it terest in the debt so paid, or that Du Bose contended that the bank had any interest in was acting in his capacity of vice president the deposit so paid Du Bose, who was dead of the bank in so receiving said money. at the time of the trial in the court below.
The judgment of the court below is thereAt the conclusion of all the evidence, both fore affirmed. sides asked a directed verdict, and neiher asked any other instruction, whereupon the court directed the jury to return a verdict HOLMAN v. NUTT et al. (No. 182.) for the bank, which was accordingly done, (Supreme Court of Arkansas. Oct. 25, 1915.) and this appeal has been prosecuted from the 1. TRIAL 143—EVIDENCE-QUESTIONS FOR judgment pronounced upon that verdict.
JURY. It is urged that the pleadings did not evidence, the issue is for the jury, and a per
Where there is a material conflict in the raise the issue of Hamiter's authority to emptory instruction is error. check against the deposit, and that the bank [Ed. Note.--For other cases, see Trial, Cent. had set up no such defense. But this was Dig. $8 342, 343; Dec. Dig. Om 143.]
$$ ] the only answer made by Hamiter, and, as 2. SALES O312—SELLER'S LIEN FOR PRICEthat answer did not constitute a defense so PRIORITY. far as he was personally concerned, judg- in actions to recover money
Under Kirby's Dig. $ 4967, providing that,
in actions to recover money contracted to be ment was rendered against him by default. paid for property in the possession of the venThereupon the cause was submitted on the dee, the court shall issue an order directing the question of the bank's liability, and, even if sheriff or other officer to take the property deit be true that the allegations of Hamiter's ders of the court, the vendor of the personal
scribed in the petition and hold it subject to oranswer did not inure to the benefit of the property is not entitled to seize property sold
wherever it may be found, but his remedy under sold and delivered the five head of horses to
of the freight on the whole shipment from Appeal from Circuit Court, Howard Coun. Arkansas to Kansas City and back. Plainty; W. C. Rodgers, Special Judge.
tiff testified that he paid out about $260 Action by L. C. Holman against Samuel L. in that way. Kennedy gave plaintiff a Nutt and others. Judgment for defendants, written order for the delivery of the horsand plaintiff appeals. Reversed and re-es, and plaintiff shipped them back to manded.
Deirks, Ark., and they remained in his posH. P. Epperson, of Muddy Fork, and W. P. session until the commencement of this suit. Feazel, of Nashville, for appellant. 'D. B. Plaintiff testified positively that Kennedy Sain, of Nashville, and T. D. Crawford, of sold him the stock for the consideration Little Rock, for appellees.
named, and that pursuant thereto he took
possession of it and shipped it back to McCULLOCH, C. J. The plaintiff, L. C. Deirks, paying the freight both ways. He Holman, instituted this action against Reese admitted, on cross-examination, that after Dyer, a constable in Howard county, to re- he had returned to Arkansas he offered to cover possession of three horses which said sell the stock back to Kennedy for the price constable had taken from plaintiff's posses- | he had received—that is to say, for the sion under process issued in two suits previ- amounts he had paid out—but his testimony ously instituted before a justice of the peace was to the effect that it was a purchase of in that county, one by Charles Kennedy, and the horses from Will Kennedy in Kansas the other by S. L. Nutt, against one Mack City, and not an acceptance of possession of Craig. Kennedy sold two of the horses in the same as a pledge to hold until the controversy to Craig, and Nutt sold the oth- freight was paid. er one to Craig, and each of said actions
Kennedy testified that Craig turned the against Craig was to recover the respective horses over to him to ship to Kansas City prices of the horses sold. Each of those and to sell, and that he (Kennedy) turned parties caused to be issued, at the commence-over to Craig a lot of other stock to take to ment of his action, an order issued pursuant St. Louis to sell. Craig did not appear in to Kirby's Digest, § 4967, directing the con- the controversy either as litigant or as a stable to take from Craig, the defendant in witness. Kennedy testified that he did not those actions, the property sold to him, sell the horses to plaintiff, but merely turnwhich was described in the complaints, and ed them over to him to hold until he collectto hold said property subject to the orders ed the amount paid out on freight, and there of the court in those actions. The writs is other testimony in the case to the effect came to the hands of the constable, and he that plaintiff turned the stock back to Craig. took the horses from the possession of the The court gave a peremptory instruction in plaintiff, and, as before stated, the plaintiff favor of the defendants, and judgment was instituted this action against the constable rendered accordingly, from which the plainto regain possession of the horses. Nutt and tiff has appealed. Kennedy were allowed to intervene and make  We are of the opinion that the court themselves defendants to this action. erred in giving a peremptory instruction.
Plaintiff asserts ownership to the horses, The case should have been submitted to the and he came in possession thereof under cir- jury upon the testimony. According to the cumstances which he relates as follows: testimony of the plaintiff, he was in possesPlaintiff sold to Will Kennedy four mules sion of the horses under his purchase from and some cattle for prices aggregating the Will Kennedy, whose testimony establishes sum of $600, and took the note of his vendee the fact that he had authority from Mack for the purchase price, reciting that the title Craig to sell the horses. It is true there was was retained by the vendor until the price shown no authority on the part of Kennedy should be paid in full. Without having paid to sell for anything but money, or to sell in any of said purchase price, Kennedy ship- discharge of his own obligation, but Craig ped the mules purchased from the plaintiff is not repudiating the sale made by his to Kansas City, and also shipped the three agent, and the defendants are not in a posihorses in controversy, and two others, mak- tion in this action to call into question Kening five in all. After Kennedy had gotten nedy's authority. away with the shipment of stock, plaintiff re-  The defendants have no lien on the ceived information of it, and telegraphed to property and did not retain the title as seKansas City and had Kennedy arrested, and curity for the purchase money of the horses the car load of stock stopped in the hands of when sold. The statute under which they the carrier. Plaintiff followed Kennedy to were proceeding for the enforcement of their Kansas City, and, according to his testimony, debts only authorizes the sequestration of made a trade with him whereby the latter property when found in the possession or the
control of the vendee. That statute was con- homa, concerning the illness and death of his strued in the case of Bridgeford & Co. v. mother. Adams, 45 Ark. 136, where it was held that: The company defended on the ground,
The statute "does not give to the vendor a among other things, that the transmission continuous subsisting lien on the property for and delivery of the message constituted inthe purchase price, but only provides that the property shall not be exempt from the vendor's terstate commerce, which exempted it from execution for the debt, and enables the plain the operation of the statutes of this state tiff in a suit for the purchase money to seize it making mental anguish an element of damat once if in the control or possession of the ages for negligent failure to receive, transvendee, without alleging the ordinary grounds for an attachment."
mit, or deliver a telegraphic message. The In that case it was held that the remedy case is ruled by the recent decisions of this could not be asserted against a trustee under court holding that there can be no recovery
of damages under those circumstances. a deed of assignment from the vendee. The same principle has been subsequently an
Judgment reversed, and cause dismissed. nounced in numerous cases decided by this court; it being held that the remedy could not be invoked as against property in the STATE ex rel. MOOS, Atty. Gen., v. WOODhands of the personal representative of the
RUFF et al. (No. 183.) vendee after the latter's death (Blass v.
(Supreme Court of Arkansas. Oct. 25, 1915.) Hood, 57 Ark. 13, 20 S. W. 544), or against
subsequent attaching creditors (Fox v. Ar- 1. CRIMINAL LAW E84 – JURISDICTION OF
JUSTICES OF THE PEACE – CONSTITUTIONAL kansas Industrial Co., 52 Ark. 450, 12 S. W. PROVISIONS. 875), or against a receiver for an insolvent Under Const. art. 7, $ 40, providing that corporation (Clements v. Hamilton-Brown justices of the peace shall have such jurisdic
tion of misdemeanors "as is now or may be preShoe Co., 99 Ara, 335, 138 S. W. 971). If scribed by law,
scribed by law,” the Legislature may ezitirely plaintiff held the property under a fraudu- abolish the jurisdiction of justices of the peace lent transfer of the title from Craig, made in misdemeanor cases; the Constitution being for the purpose of defrauding his creditors, a limitation, and not a grant, of powers. that might be shown in defense of the action, Law, Cent. Dig. SS 115–124; Dec. Dig. Om84.)
[Ed. Note.-For other cases, see Criminal but there was no attempt to prove that the
2. CRIMINAL LAW Own 84 - JURISDICTION OF alleged sale to plaintiff was to plaintiff was fraudulent.
COURTS-CONSTITUTIONAL PROVISIONS. Neal v. Cone, 76 Ark. 273, 88 S. W. 952; Under Const. art. 7, § 43, providing that Roach v. Johnson, 71 Ark. 344, 74 S. W. 299. corporation courts for towns and cities may be Reversed and remanded for a new trial. tices of the peace in civil and criminal matters,
invested with jurisdiction concurrent with jussuch jurisdiction as under the Constitution may be vested in justices of the peace may be vested in municipal courts, and the Constitution
does not require that such jurisdiction be exerWESTERN UNION TELEGRAPH CO. v.
cised concurrently with justices of the peace, and STEWART. (No. 179.)
hence Laws 1915, p. 340, establishing municipal (Supreme Court of Arkansas. Oct. 25, 1915.) courts in certain cities, is not invalid, though
in section 10 it gives such courts jurisdiction exCOMMERCE 8 - INTERSTATE COMMERCE clusive of justices of the peace over all misdeSTATE INTERFERENCE – TELEGRAMS NEGLI- meanors committed within the limits of the GENCE-ELEMENTS OF DAMAGES.
county. Under the statutes of Arkansas which pro- [Ed. Note.-For other cases, see Criminal vide that mental anguish shall be an element of Law, Cent. Dig. $8 115-124; Dec. Dig. Ono damages for negligent failure to receive, trans- 84.] mit or deliver a telegraphic message, no recovery can be had where the message is interstate in 3. CRIMINAL LAW 206 - JURISDICTION OF character, and therefore subject to the federal
COURTS-CONSTITUTIONAL PROVISIONS. law on interstate commerce.
Under Const. art. 7, § 43, providing that [Ed. Note. For other cases, see Commerce, invested with jurisdiction concurrent with jus
corporation courts for towns and cities may be Cent. Dig. & 5; Dec. Dig. Om 8.]
tices of the peace in civil and criminal matters, Appeal from Circuit Court, Logan Coun- and section 40, giving justices of the peace
original jurisdiction to sit as examining courts, ty; Jeptha H. Evans, Judge.
Laws 1915, p. 340, is not unconstitutional beAction by W. M. Stewart against the West-cause of the provision therein that the municiern Union Telegraph Company. From a pal courts thereby created shall have jurisdicjudgment for plaintiff, defendant appeals. tion to sit as examining courts, as the Consti
tution does not vest exclusive jurisdiction in Reversed, and cause dismissed.
justices of the peace to sit in examining trials. H. C. Mechem, of Ft. Smith, for appellant. Law, Cent. Dig. ss 411-413, 460; Dec. Dig.
Ed. Note.-For other cases, see Criminal
On 206.] McCULLOCH, C. J. This is an action
4. STATUTES O 64-PARTIAL INVALIDITY-EFagainst the telegraph company to recover
FECT. compensation for mental suffering alleged to If Laws 1915, p. 340, creating municipal have been caused by the negligence of the courts in certain cities, attempts to make their company in failing to promptly transmit and jurisdiction in civil matters coextensive with
the limits of the county, and, if it is invalid to deliver a message to plaintiff at Booneville, that extent, this does not impair the validity Ark., from his brother in the state of Okla-1 of the remainder of the act; there being no 84.]
reason to doubt that the Legislature would have statute does not mention any city by name, enacted the statute with that part omitted.
but the description of the territory in which [Ed. Note. -For other cases, . see Statutes, it has application is so framed as to include Cent. Dig. $8 58-66, 195; Dec. Dig. Om 64.]
only the cities of Little Rock and Argenta. 5. CRIMINAL LAW O 84 - JURISDICTION OF COURTS—CONSTITUTIONAL PROVISIONS.
Respondents, who are judges of the muAs the Constitution does not by express nicipal courts in Little Rock, demurred to terms restrict the jurisdiction of justices of the the petition, and the circuit court sustained peace to the territorial limits of the township the demurrer and rendered judgment disin which they are elected to serve, and as article 7, § 43, provides that corporation courts for missing the petition. towns and cities may be invested with jurisdic- It is not contended tliat municipal courts tion concurrent with justices of the peace in cannot, under the Constitution, be establishcivil and criminal matters, the Legislature may ed, but the validity of the statute establishvest jurisdiction in municipal courts beyond the geographical limits of the municipalities.
ing the courts presided over by respondents [Ed. Note.-For other cases, see Criminal is attacked on the following grounds set Law, Cent. Dig. SS 115-124; Dec. Dig. Om forth in the brief:
(1) The act is unconstitutional because it 6. STATUTES O 812-SPECIAL BILL-NOTICE. takes away all of the jurisdiction of jus
The constitutional provision requiring notice of a special bill is a mere direction to the tices of the peace as to misdemeanors in Legislature itself.
townships subject to the act. [Ed. Note.-For other cases, see Statutes, (2) Because it gives municipal courts juCent. Dig. $ 6; Dec. Dig. Cam812.]
risdiction to sit as examining courts, com7. STATUTES 812-ENACTMENT—NOTICE OF mit, discharge, or recognize offenders to the SPECIAL Acts. Laws 1915, p. 340, establishing municipal court having jurisdiction for further trial,
. courts in certain cities of the first class, is not and to bind persons to keep the peace or for a special act within the constitutional provision good behavior. requiring notice of a special bill, though it is so framed as to include only the cities of Little ceeds and extends beyond the geographical
(3) Because according to its terms it exRock and Argenta.
[Ed. Note. -For other cases, see Statutes, boundaries of the cities covered by it. Cent. Dig. $ 6; Dec. Dig. Omw 812.]
(4) Because the act in its nature is special, 8. CONSTITUTIONAL LAW Oww102 – CRIMINAL and is an act applying only to the city of LAW Cm 87-COMPENSATION OF JUSTICE OF Little Rock and another city contiguous to PEACE-STATUTORY PROVISIONS—IMPAIRMENT the city of Little Rock, and not to the whole OF VESTED RIGHTS.
Justices of the peace have no vested rights state at large, and that no notice of the inin the fees and emoluments of their office, and tended introduction or passage of the said the matter is subject to regulation at any time act was given, and because a general act by the Legislature, and hence Laws 1915, p. I could have accomplished the purpose, if it 340, establishing municipal courts and restricting the jurisdiction of justices of the peace, is could have been accomplished at all, without not void as impairing the vested rights of jus- the necessity for a special act. tices of the peace in such fees and emoluments.
(5) Because the act attempts to take away [Ed. Note.-For other cases, see Constitutional Law, Cent, Dig. $8 225, 356; Dec. Dig. and the rights and powers of the justices of the 102; Criminal Law, Cent. Dig. § 126; Dec. peace who were elected and holding office Dig. Om 87.]
at the time of the passage and approval of Kirby, J., dissenting.
the act, and that said justice of the peace
courts are constitutional courts, and their Appeal from Circuit Court, Pulaski Coun
powers could not be enlarged or restricted ty; Guy Fulk, Judge.
by the acts of the Legislature. Quo warranto by the State, on relation of
(6) Because the Legislature has no power, W. L. Moos, Attorney General, against Wil- under the Constitution of Arkansas, to create liam E. Woodruff and another. From a
a new judicial department for the state, or judgment dismissing the petition, plaintiff
any part thereof, and that this was attemptappeals. Affirmed.
ed by giving municipal corporation courts W. L. Moose, Atty. Gen., and Carmichael, power to hear and determine cases beyond Brooks, Powers & Rector, of Little Rock, for their geographical jurisdiction. appellant. J. M. Moore, J. W. House, G. B. The points of attack will be discussed in Rose, B. D. Brickhouse, C. T. Coffman, Mor- the order above set forth. Whilst the power ris M. Cohn, W. J. Terry, J. F. Loughbor- of the Legislature to create municipal courts ough, and H. M. Trieber, all of Little Rock, is not questioned, it becomes necessary for for appellees.
us to pass upon the several attacks made on
this statute; for it can be said, with much McCULLOCH, C. J. The Attorney Gen- reason, that the act must stand or fall as eral instituted this action in the circuit court a whole, inasmuch as the Legislature might of Pulaski county by petition for quo war- not have enacted it with any of its assaulted ranto, challenging the validity of a statute parts omitted. enacted by the General Assembly of 1915 es- The sections of the Constitution which retablishing municipal courts in certain cities fer to the creation of municipal courts are as of the first class. Acts 1915, p. 340. The follows: