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filed in court, nor the alleged affidavit waiving Service, and that it was kept among his OWn private papers after he had concluded not to bring the divorce Suit at the time, that it might be used later On if it Was determined to proceed With the Suit, and that as a matter of fact it was signed by John Garvey, although he did not appear before the notary and SWear to it. The court found appellant “guilty of knowingly and fraudulently offering to the court a false waiver of service on the defendant,” and fined him $50, and Ordered him committed to the county jail for 24 hours, and his name stricken from the roll of attorneys in the chancery court.
Covington & Grant, of Ft. Smith, and J. E. London, of Alma, for appellant. Jos. M. Hill, James F. Read, and Harry P. Daily, all of Ft. Smith, for the State.
KIRBY, J. (after stating the facts as above). Appellant insists that the court was Without authority to strike his name from the roll of attorneys of the chancery court and disbar him from practice therein as part of the punishment inflicted for contempt and that the judgment is not supported by the testimony. [1,2] The contempt appears to have been One committed in the immediate view and presence of the Court. The evidence discloses that When appellant, as attorney for Edith Garvey, made application to the chancellor to Sue as a poor person, he was asked if Garvey was in town and told to notify him Of the application. He later returned to the Court, and Without explanation presented the Said affidavit Showing the waiver of Service. The testimony shows at best in his favor that the Statement Was Written out at his dictation by a Stenographer, and that GarVey's name was signed by the stenographer, a Miss Simmons, at the request of a man present, Who DickerSon told her Was GarVey. It Was not dated at the time, which was some time before the 29th day of March, and Was dated upon that day when presented to the chancellor, and appeared on the face of it to have been made and sworn to On that day. If it be regarded a proceeding to punish for contempt not committed within the presence of the court, the written charge made upon the record Of the court, Of Which he Was notified and given an opportunity to anSWer, Was Sufficient, as held in Carl-Lee V. State, 102 Ark. 122, 143 S. W. 909. The Statute authorizes the court to punish for criminal contempt by a fine and imprisonment, and provides that the persons punished shall still be liable to indictment for the offense, if it is an indictable one; “but the court before which a conviction may be had on such indictment shall, in forming its sentence, take into consideration the punish
Disbarment of an attorney is no part of the punishment prescribed by statute for any Contempt Of Which he may be guilty, nor does his punishment for any such contempt prevent his being disbarred from practicing in any court, or all the Courts, of the State, if such act is one warranting disbarment. The statute prescribes the proceeding for disbarment, which contemplates definite Charges exhibited against the Offender and a time for a hearing fixed, of which he shall be notified. Sections 450–466, Kirby's Digest. Such proceedings are not criminal, but civil, in their nature. They are not instituted nor intended for the purpose of punishment. “The purpose of the proceeding for suspension and disbarment is to protect the court and the public from attorneys who, disregarding their oath of office, pervert and abuse those privileges which they have obtained by the high office they have secured from the court.” Wernimont V. State, 101 Ark. 216, 142 S. W. 196, Ann. Cas. 1913D, 1156. The accused is entitled to a trial by a jury in a proceeding to disbar if he requests it, and the judgment of suspension or removal Operates as a removal or Suspension from practice in all the Courts of this State. The proceeding for the punishment of contempt of court charged herein is criminal in its nature, as distinguished from civil, and although the Written charge against the accused, of which he was notified, and appeared and defended against, Would have been Sufficient as a charge in a disbarment proceeding, if it had notified the appellant that that Was the purpose of it, it only put him on notice Of, and required him to anSWer, a charge for contempt. It Was not intended that a proceeding to punish for Contempt and One for disbarment of an attorney should be joined in the same Charge, nor that disbarment Or SuSpenSiOn from practice as an attorney and Counselor at law should be inflicted as punishment for Contempt of Court, although courts have inherent power to punish for Contempt, and those Which grant licenses to attorneys have inherent power to revoke them. Our law does not Contemplate that an attorney may be removed Or suspended from the practice Of his profession, unless upon written chargeS preferred and after notice and an opportunity to defend has been given. The punishment of appellant for contempt by fine and imprisonment Would not have prevented his trial for disbarment upon the same charge, but he could not be tried at the Same time, upon the One charge, and punished for COntempt by fine and imprisonment, and removed from the practice of law or disbarred, Without his consent.  It Cannot be Said that he did not Object to such proceeding, for there was no notice that me was on trial for disbarment, Or that any Such result WOuld follow his conviction for contempt, and since the judgment of removal Or Suspension of an attorhaving authority to render it, operates while it continues in force as a removal or suspension from practice in all the courts of the State, no such judgment should be rendered, except upon a formal charge therefor in accordance with the statute. Beene v. State, 22 Ark. 156; Nichols v. Little, 112 Ark. 213, 165 S. W. 301.
The court erred in its judgment disbarring the attorney, and, being without authority to Order his removal as punishment for contempt in the proceeding, that part of its judgment will be quashed, and otherwise it Will be affirmed.
It is SO Ordered.
This is an appeal from the decree of the Franklin chancery court dismissing, for Want of equity, the complaint of appellant filed in that court against the appellees, the prosecuting attorney of the Fifteenth judicial circuit, and the Superintendent of the State penitentiary. By this suit the appellant sought to have the state, through its prosecuting attorney, to Submit to a new trial Of appellant's case and to restrain the execution of the judgment of the Franklin circuit court pronouncing a sentence of death against appellant.
Among other things, the appellant alleges that he was not guilty of the crime of rape Of Which he Was COnVicted and for. Which he Was Sentenced to be electrocuted in the Franklin circuit court. He alleges that the verdict and judgment of that court were contrary to law and the evidence; that he had appealed from the judgment and was allowed 30 days to file his bill of exceptions; that the bill of exceptions Would have Shown errors in the rulings Of the trial court in overruling his motion for a new trial which would have entitled him, On appeal to the Supreme Court, to a reversal of the judgment and a new trial of his case in the cir
cuit court. He further alleged that the bill of exceptions was not filed within the time allowed by the trial court, and sets forth facts (Which it is unnecessary to detail) showing that the failure to file the bill of exceptions within the time allowed was not On account Of any negligence legally attributable to appellant, but that it was through the carelessness or negligence of those for Whose conduct appellant was in no Wise responsible, and that by reason of the fault and carelessness of others appellant was denied, on appeal to the Supreme Court, a hearing upon the exceptions which he had reserved at the trial and which, if considered by the Supreme Court, he says would have resulted in a reversal Of the judgment and sentence of death against him and in the granting of a new trial. The sufficiency of the complaint was challenged by a demurrer, and its allegations were put in issue by the answer. Oral testimony was taken before the court and was reduced to writing, and was embodied in the bill of exceptions signed by the chancellor. There was also tendered with the complaint as an exhibit the bill of exceptions containing the evidence which was adduced on the trial of the cause before Hon. J. H. Evans, judge of the Franklin circuit court, and the bill of exceptions signed by the chancellor recites that: “The plaintiff introduced in evidence the bill of exceptions filed with the complaint herein as a part of the evidence in this cause.” The bill of exceptions signed by the chancellor further recites: “This is all the testimony introduced on the part of the plaintiff and all of the testimony introduced upon the trial of the cause by either party.” The Chancellor found: “That the said Neal McLaughlin, in perfecting and filing his bill of exceptions referred to in the complaint herein, did not use such degree of diligence as was demanded, so that the failure to obtain the filing thereof within the time decreed by the court in which said action was pending was not without fault of the said Neal McLaughlin in that behalf.” John D. Arbuckle and J. V. Bourland, both of Ft. Smith, for appellant. Wm. L. Moose, Atty. Gen., and Jno. P. Streepey, Asst. Atty.
Gen., for appellees.
WOOD, J. (after stating the facts as above). The Attorney General, for appellees, COntends that the chancery Court was Without jurisdiction to grant the relief sought in the complaint, While learned counsel for the appellant, On the other hand, maintain that the chancery court has such jurisdiction, and they have presented an elaborate brief and Cited numerous authorities to Support their contention. It is also insisted by the Attorney General that the chancellor Was correct in finding that the failure to file the bill Of exceptions within the time allowed by the trial COurt Was On 2CCOWnt Of the fault Of the appellant, while counsel for the appellant strenuously contend that the chancellor erred in SO finding. We find it unnecessary to determine either of these questions; for, if it be conceded that the chancery court had jurisdiction to grant the relief prayed, and that the chancellor erred in finding that the failure to obtain and file the bill of exceptions within the time allowed by the trial court WaS because Of the fault Or CareleSSneSS Of the appellant, the record on this appeal nevertheless discloses that the decree Of the chancery Court dismissing appellant'S COmplaint Was COrrect and must be affirmed for another reason, to wit: The bill of exceptions, made an exhibit to appellant's complaint, which contains a statement of the evidence that was introduced before the chancellor, does not show any ground upon which the Supreme Court Would have been authorized to reverse the judgment of the trial Court had this bill of exceptions been filed Within the time allowed by the trial court, and had this become a part of the record on appeal to the Supreme Court. This court on the appeal in the case of McLaughlin V. State, 174 S. W. 234, did not discover any error on the face of the record. The present record does not show that the appellant had reserved any exceptions to the rulings of the circuit Court in the trial Of his CaSe before that Court that Would have Warranted this Court in reversing the judgment of the trial court, even if the bill of exceptions had been filed Within the time allowed for filing the same. While it is alleged in the complaint that the court erred in its ruling upon certain instructions, and that exceptions Were saved to the court's ruling in the giving and refusing of instructions, these alleged inStructions and rulings were not presented to the chancellor on the hearing of the present Cause. Neither the instructions nor the trial court’s rulings thereon Were in evidence before the chancellor, and are not before us, and it is impoSSible therefore for us to determine Whether Or not the circuit court made any erroneous rulings at the trial Which resulted in appellant'S COnviction of the crime of rape. Counsel for appellant strenuously urge that the evidence as contained in the Original bill of exceptions, and which was made a part of the evidence in the hearing of the present case before the chancellor, failed to sustain the Verdict of the jury, and that a new trial should have been granted on account of the insufficiency of the evidence. We have carefully read the testimony as Set forth in the Original bill Of exceptions Contained in this record, and we are of the opinion that if this testimony had been in the record on the appeal from the judgment of the circuit court, and if the record on that appeal had shown
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that an exception had been properly taken to the ruling of the court in refusing to grant appellant's motion for a new trial on the ground of the insufficiency of the evidence to sustain the verdict, still this court would not have reversed such ruling of the trial court. The evidence, in other words, that was taken in the trial of appellant before the circuit court is amply sufficient to sustain the Verdict of the jury. It is unnecessary to Set out and discuss this evidence in detail. The testimony of the prosecutrix at the trial before the circuit court showed that She met appellant on the path that she was traveling through the woods while returning from church to the place where she was then stopping, and that he threw her upon the ground and had sexual intercourse with her forcibly and against her will. She positively identified appellant as the one who had had Such intercourse with her, and detailed the circumstances at the time and immediately thereafter, all in such manner as to convince the jury of appellant's guilt. It was peculiarly Within the province of the jury to pass upon the issue of fact. It was their province to weigh the credibility Of the Witnesses. In testing the Sufficiency of the evidence here it is Only necessary that there should be some Substantial evidence upon Which to base the Verdict. This is the unvarying rule of this court. Easley v. State, 109 Ark. 130, 159 S. W. 36. This record ShOWS evidence of a Substantial character in support of the verdict. The appellant therefore did not disclose to the chancery Court that he had any grounds to justify that court in granting the relief Sought in his complaint. As early as Leigh V. Armor, 35 Ark. 123, We said: “It is well settled that where a judgment is obtained in a court of law by fraud, accident, or mistake, unmixed with negligence on the part of the party against whom it is rendered, a court of equity has jurisdiction, on a showing of a meritorious defense or cause of action, to compel the party obtaining the judgment to submit to a new trial. But it is agreed that this power should be exercised with great caution, and the application of the doctrine is generally restricted, and is confined to cases which
present peculiar circumstances, under the maxim that there must be an end of litigation.”
See, also, Kansas, etc., R. Co. v. Fitzhugh, 61 Ark. 341–347, 33 S. W. 960, 54 Am. St. Rep. 211.
The above principles apply here. Appellant did not disclose any error in this record that would have justified the court of chancery (conceding that it had jurisdiction) in reStraining the judgment of the law court and in compelling the State to submit to a new trial.
The decree is therefore correct and is affirmed.
BARRENTINE v. HENRY WRAPE CO. (No. 147.) (Supreme Court of Arkansas. Oct. 4, 1915.)
1. MASTER AND SERVANT ©:286 – ACTIONS FOR INJURIES-QUESTIONS FOR JURY. An employer allowed its employés to remain in its plant and on its grounds during the noon hour without any restrictions as to their conduct. Certain of the employés engaged in a sham battle with rocks upon such grounds, and plaintiff, who was not engaged in the rock throwing, but who was returning to his work, was struck and injured. There was evidence that it was known to the employer that the employés indulged in this practice, and that the Superintendent and foreman had remonstrated with them, and ordered the practice Stopped when they had seen it engaged in. The superintendent and foreman testified that they had no control of the employés during the time that the plant was not in operation. Held, that the employer's negligence was a question for the jury, as it could not be said as a matter of Iaw, that the employer had no control of the employés upon its premises while the plant was not in operation, and the testimony as to its conduct in discouraging the practice of throwing stones on the premises, though it would have supported a verdict for the employer, did not, as a matter of law, show the exercise of ordinary care to free the premises of known dangerS. [Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1010–1015, 1017–1033, 1036–1042, 1044, 1046–1050; Dec. Dig. Q:286.]
2. APPEAL AND ERROR G2927—REVIEW-DIRECTION OF VERDICT. In determining on appeal the correctness of the trial court's action in directing a verdict, that view of the evidence which is most favorable to the party against whom the verdict is directed is to be taken.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2912, 2917, 3748, 3758, 4024; Dec. Dig. G->927.]
3. TRIAL (3:139—DIRECTION OF VERDICT. Where there is any evidence tending to establish an issue in favor of a party, it is error to take the case from the jury and direct a Verdict against such party. [Ed. Note.—For other cases, see Trial, Cent. #. §§ 332, 333, 338–341, 365; Dec. Dig. Q:
Appeal from Circuit Court, White County; J. M. Jackson, Judge.
Action by James W. Barrentine against the Henry Wrape Company. From a judgment on a directed verdict for defendant, plaintiff appeals. Reversed and remanded.
J. N. Rachels, John E. Miller, and W. H. Yarnell, Jr., all of Searcy, for appellant. Brundidge & Neelly, of Searcy, for appellee.
KIRBY, J. This appeal is from a directed Verdict.  This is the second suit for damages for personal injury alleged to have been caused by the negligence of appellee in failing to exercise ordinary care to protect appellant while upon its premises and in its plant as he was returning to his work. After going to dinner on the day of the injury he was returning to resume work at his place, and when within a few feet of his
place of employment, and shortly before the hour to begin, some of the other employés Who had engaged in a sham battle With rocks upon the grounds threw a stone which struck him in the eye and put it out. In the first suit the complaint was held insufficient upon demurrer, and the law relating to the liability was declared. Barrentine v. Henry Wrape Co., 105 Ark. 485, 152 S. W. 158. It Was there Said : “The master owes to his servants, while on his premises to perform service, and also to Strangers who rightfully come upon the premises, the duty of exercising ordinary care to free the premises from known dangers, all dangers of which the master is informed. This, of course, includes dangers arising from negligent or willful acts of the servants. Though it is not essential to the , master's liability that the negligent servant should be acting at the time within the scope of his authority, yet it is essential that the master should have control of him or the opportunity to control his actions before the liability attaches on account of his conduct. If the servant in committing the negligent act is not proceeding within the line of his duty, and is not at the time within the control of the master, then the latter is not liable.”
The testimony tends to show that appellant was not engaged in the rock throwing which many of the other employés indulged in for diversion during the noon hour, as he was returning to the machine where he worked, and immediately before the time to begin he Was Struck by a Stone or missile throWn by some of the others, inflicting the injury complained of, and also that it was known to the master that the employés indulged in such practice, and the superintendent and foreman had remonstrated with them and Ordered the practice Stopped When they had seen it engaged in. It was further shown that the men were allowed to remain in the plant and on the grounds during the noon hour without any restrictions as to their conduct; and the superintendent and foreman testified that they had no control of the employés during the time that the plant was not in operation, and, under these circumstances, there was a question for the jury to determine whether the master was negligent and failed to exercise ordinary care for the protection of appellant.
[2, 3] In determining on appeal the correctness of the trial court's action in directing a verdict for either party, the rule is to take that view of the evidence that is most favorable to the party against whom the verdict is directed, and where there is any evidence tending to establish an issue in favor of the party against whom the Verdict is directed, it is error to take the case from the jury. Williams v. St. L. & S. F. R. Co., 103 Ark. 401, 147 S. W. 93; Phoenix Cement Co. v. Russellville Water & Light Co., 101 Ark. 22, 140 S. W. 996; Curtis v. St. L. & S. F. R. Co., 96 Ark. 394, 131 S. W. 947, 34 L. R. A. (N.S.) 466, Ann. Cas. 1912B, 685.
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It cannot be Said that the testimOny is undisputed, nor that different minds could not draw different conclusions from it relating to the question of the exercise of Ordinary care by the master to protect the Servant. It is true the superintendent and foreman both testified that they had no Control of the employés on the groundS Or premises during the noon hour, and that they were under no restrictions whatever, but it is also ShOWn that the master knew of the habit indulged in by the employés of throwing stones upon the grounds; and, While there is testimony tending to ShoW that they stopped the employés from doing this when they were seen to be engaged in it, it still remains a question for the jury to determine Whether Such conduct WaS the exercise of ordinary care required by law of the master. As a matter Of law, it cannot be said that a master had no control Of the servants upon his premises during the noon hour when the plant was not in operation, because he exercised none; and, although the testimony showing appellee's conduct in discouraging the practice of throwing Stones upon the premises is amply Sufficient to have Supported a Verdict in its favor, if One had been rendered, it is not sufficient to be declared, as a matter of law, the exercise Of Ordinary care to free its premises of knoWn dangers.
The court erred in directing the Verdict.
The judgment is reverSed, and the CauSe remanded for a new trial.
SCOTT v. McCRAW, PERKINS & WEBBER
1. F. R A U D U L E N T CONVEYANCES @->300 – VOLUNTARY CHARACTER OF CONVEYANCESUFFICIENCY OF EVIDENCE. In a creditors’ suit to uncover a parcel of realty in the hands of the judgment debtor's wife, evidence held sufficient to show that the land which the debtor conveyed was originally purchased with the wife's money; title being taken in the husband's name. [Ed. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 896–903; Dec. Dig. Q->300.] . 2. F. R A U D U L E N T CONVEYANCES @->300– VOLUNTARY CHARACTER OF CONVEYANCE— SUFFICIENCY OF EVIDENCE. In a creditors’ suit to uncover a parcel of realty conveyed to the judgment debtor's wife -by deed of trust, evidence held to support the chancellor's finding that the conveyance was voluntary and to put the property beyond plaintiff's reach. [Ed. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 896–903; Dec. Dig. 6:300.]
3. FRAUDULENT CONVEYANCES @->300–HUSBAND AND WIFE—EVIDENCE AS TO CONSIDERATION. Though an insolvent husband justly indebted to his wife may validly appropriate his property to pay her in preference to his other creditors, where the wife, to establish her status as creditor, asserts that she loaned money to
her husband many years previous without written evidence of his agreement to repay her, her bare statements should be corroborated before accepted in support of the conveyance. [Ed. Note.—For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 896–903; Dec. Dig. Q->300.] 4. FRAUDULENT CONVEYANCES @:313 — DECREE OF SALE–PROPRIETY. Where, in a creditors’ suit to uncover realty of a judgment debtor conveyed to his wife, the court ordered the sale of the property which had been uncovered by its decree, such action was proper, since a chancery court, which acquires jurisdiction to set aside fraudulent conVeyances, should not only grant the relief prayed for, but enforce the lien by ordering the land in controversy sold to satisfy the judgment.
SMITH, J. Appellee was the plaintiff be10W, and alleged in its complaint that on the 27th day of March, 1914, it recovered a judgment against appellant, Dr. S. A. Scott, for the sum of $2,303.29, with interest, and that the Suit on which this judgment was obtained was filed on the 16th of June, 1913, and that in anticipation of the filing of this suit Dr. Scott had executed a voluntary conveyance to his wife to lot No. 10, in block No. 9, of Sheldon's addition to the city of Little Rock. The date Of the deed to Mrs. Scott Was October 21, 1913. Before the date of the submission of this cause the complaint was amended to allege that On the day of June, 1913, appellant, Dr. Scott, had executed a deed of trust in favor of his Wife to certain other property there described, and that this conveyance was a voluntary one, for the fraudulent purpose of enabling appellants to cheat, hinder, and delay appellee in the collection of its just demand against Dr. Scott. After appellee had recovered judgment against Dr. Scott in the original suit, he prosecuted an appeal to this court, and appellee prosecuted a cross-appeal, and we have only recently handed down an opin