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GUNTHER V. CITY OF HOT SPRINGS. (No. 174.)
(Supreme Court of Arkansas. Oct. 18, 1915.)
1. INTOXICATING LIQUORS (3:10—LICENSE TO SELL—POWER TO CONTROL.
Under Kirby's Dig. § 5438, giving municipalities power to license, regulate, tax, or suppress retail dramshops, and also wholesale liquor dealers, a city may impose a license fee upon both wholesale and retail selling, where both are conducted by the same person in the same room, and although sections 5109–5111, providing for the levy and collection of a state and county tax, expressly exempt a licensed retailer who wholesales from the payment of the wholesale license fee.
[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. §§ 7-12; Dec. Dig. 3:10.]
2. INTOXICATING LIQUORS @:46—LICENSE. To SELL—REASONABLE FEE.
Where the statute authorizing municipalities to license, tax, or suppress retailers and wholesalers of liquor fixes no maximum fee which may be charged, an ordinance fixing the license fee cannot be void because the amount is unreasonable.
[Ed. Note.—For other cases, see Intoxicating Liquors, Cent. Dig. $48; Dec. Dig. 3:46.]
Appeal from Circuit Court, Garland County; Scott Wood, Judge.
A. J. Gunther was convicted of violating an ordinance of the City of Hot Springs. On appeal to the circuit court, he was again Convicted, and he appeals. Affirmed.
Appellant was convicted for violating an Ordinance of the city of Hot Springs requiring Wholesale dealers in malt liquors, to pay a license of $300, and appealed to the circuit court, Where he was again convicted, from Which judgment this appeal is prosecuted. The case was tried upon an agreed Statement of facts and the ordinance fixing the license. By the terms Of the Ordinance each Wholesale dealer in malt liquorS WaS required to pay the sum of $300 per year.
The appellant procured from the county COurt a license authorizing him to conduct a dramshop at 721 Central avenue, in the city of Hot Springs, Ark., for the year 1914. He also procured from the city a license to conduct a dramshop at the same place. The building in which he was authorized to retail liquorS under Said licenses ConsistS Of One storeroom fronting On Central avenue, in said city, and running through to Valley Street, and WaS uSed both as a Saloon Or dramshop and as a storeroom for malt liquors, which he sold in wholesale quantities to Other retail liquor dealers in the city, in barrels Of not leSS than five gallonS and Cases Of not less than three dozen bottles. He did not for Said year procure a license as a Wholesale dealer in malt liquors, either from the county Or the city, but Sold Said liquors Wholesale from his Storeroom in which he
conducted a retail liquor business for which he had taken out license.
C. Floyd Huff, of Hot Springs, for appellant.
KIRBY, J. (after stating the facts as above). The Sole question for determination On this appeal is Whether a city can require of a dealer engaged in selling liquors Wholesale and retail from the same Storeroom who had paid license as a retail liquor dealer, both city and county, to pay license as a wholesale dealer in malt liquors.  Municipal corporations are given authority under section 5438, Kirby's Digest (Act May 23, 1901), “to license, regulate, tax or suppress * * *” not only “tippling houses, dramshops,” but also “any dealer in Wines and liquors, by the quantity or otherWise, than as keeper of tippling houses and dramshops.” After it Was decided in Tuck V. TOWn of Waldron, 31 Ark. 464, that the act of 1875 did not authorize cities and towns to require persons engaged in the sale of wines and liquorS by the quantity Or OtherWise than as keeperS Of tippling houses Or dramshops to pay license, the law Was amended, granting them Such power. Even if it is true, as contended by appellant, that one who engages in business as a retail liquor dealer, after having paid the licenses required therefor, may engage at the same place in the Sale Of malt liquors wholeSale Without the payment of the state and County tax Or license as a wholesale liquor dealer, it does not follow that he can SO engage Without the payment of the license required by the city as such wholesale dealer. The statute of March 31, 1887 (sections 5109–5111, Kirby's Digest), providing for the levy and collection of a state and county tax on Wholesale dealers in malt liquors, expressly excepts from its provisions those who have procured retail license as provided by law. The city of Hot Springs could doubtless have made such an exception, but it has not done so, and, having the power to require the payment of both licenses, the appellant was rightly convicted for Selling malt liquors wholesale in Violation of the Ordinance, notWithStanding they Were Sold in the Same room in Which his retail busineSS, Which was duly licensed, Was COnducted.  Neither is there any merit in appellant'S COntention that the Ordinance is Void because the license fee required is unreasonable, since no price is fixed in the statute authorizing the granting of licenses to wholesale and retail liquor dealers by municipalities. Wallace v. Cubanola, 70 Ark. 395, 68 S. W. 485; Siloam Springs V. Thompson, 41 Ark. 464. The judgment is affirmed.
Q-> For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
COOKSEY v. HARTZELL. (No. 164.) Oct. 18, 1915.)
1. LoGS AND LOGGING C-52—BONA FIDE PURCHASER—NOTICE—EVIDENCE. Evidence held to show that defendant bought land with notice of plaintiff's prior purchase of the standing timber. [Ed. Note.—For other cases, see Logs and Logging, Cent. Dig. §§ 1–5; Dec. Dig. 3:2.]
2. LOGS AND LOGGING G->2—BONA FIDE PURCHASER-NOTICE—EVIDENCE. That after defendant bought land he not only conceded plaintiff's ownership of the timber thereon and agreed to cut and remove it for him, but did so as to part of it, is corroboration of the testimony of defendant's vendor that defendant before he bought was informed of the prior sale of the timber. [Ed. Note.—For other cases, see Logs and Logging, Cent. Dig. §§ 1–5; Dec. Dig. 3:2.] 3. LOGS AND LOGGING & 3 - PURCHASE oE STANDING TIMBER—TIME TO REMOVE-INTERFERENCE. . . The time limited to a purchaser of standing timber to remove it does not run during inter£e with his operations by the owner of the an Ol. [Ed. Note.—For other cases, see Logs and Logging, Cent. Dig. §§ 6–12; Dec. Dig. Q:3.]
(Supreme Court of Arkansas.
Appeal from Sevier Chancery Court; Jas. D. Shaver, Chancellor. . Suit by George Cooksey against E. E. Hart
Zell. Decree for defendant, and plaintiff appeals. Reversed and remanded, with directions.
A. D. Du Laney, Of Ashdown, for appel lant. Steel, Lake & Head, of Texarkana, for appellee.
McCULLOCH, C. J. Appellant was engaged in the timber business in Sevier county, Ark., and on October 4, 1912, purchased from One J. G. Young the timber on a certain quarter section of land. Young and his wife executed a deed on that date conveying the timber to appellant and giving the right to cut and remove the same for a period of two years. The deed was not filed for record until May 17, 1913, and in the meantime Young sold and conveyed the land to appellee on February 18, 1913. This is an action instituted by appellant in the chancery court of Sevier county to secure an injunction against appellee's interference with appellant's employés in cutting and removing the timber. It is alleged in the complaint that appellee had notice at the time he purchased the land from Young of the prior Sale of the timber to appellant, and that in August, 1913, he entered into an oral agreement with appellant's agent whereby he agreed for a stipulated price to remove the timber for appellant, and also agreed that, if he failed to do so within the period of two years prescribed in the deed of Young to appellant, the time should be extended for another year. Appellee in his answer denied that he had any notice when he purchased the land Of the
prior sale of the timber to appellant. The chancellor decided the issues in appellee's favor, and dismissed the complaint for Want of equity. [1-3] We recognize the rule that on a disputed issue of fact in a chancery cause the finding of the chancellor should not be disturbed, unless found to be against the preponderance of the evidence, but in this case we are of the opinion, after a careful analysis of the testimony, that it preponderates clearly against the finding of the chancellor. Young testified positively that the day before he sold the land to appellee he told the latter that the timber had previously been sold and was owned by the Neal Springs Lumber Company. He explained that the reason he made that statement was because appellant wanted the deed made to the Neal Springs Lumber Company, and that he understood that appellant was Operating in some way through or with that company. At any rate, he states positively that he told appellee that the timber had been sold. Appellee denied that, but admits that Young told him that the timber on a three-acre tract of land just acroSS the Creek from the timber in controversy was owned by the Neal Springs Lumber Company. Young has no interest in this controversy, So far as appears from the record, and, in addition to that, he is strongly corroborated by other testimony which shows that in August, 1913, appellee conceded appellant's ownership of the timber and entered into an agreement with the appellant, through his agent, Cleveland, to cut and haul the timber for a stipulated price. This was about two months after the appellant's deed had been put on record. Appellee did, in fact, cut and haul a lot of the timber for appellant and received pay for it. Some of the payments were as late as December 10, 1913. Appellee undertakes to explain this by stating that at the time he made the concession as to appellant's ownership he thought the deed had been placed of record before his purchase; but the fact remains that he not only conceded appellant's ownership and agreed to cut and remove the timber for the latter, but that he afterwards did cut and haul a lot Of it, and this must be taken as corroboration of the testimony of Young to the effect that appellee knew when he purchased the land that the timber had previously been sold; in other words, he was put upon notice of appellant's ownership, and, even though the deed was unrecorded, his grantor's prior conveyance to appellant must preVail Over his subsequent purchase. The timber deed, even though unrecorded, was good between the parties and against Subsequent purchasers with notice. The testimony shows, furthermore, that after appellee had failed to carry out his oral agreement to remove the timber, appellant sent a crew of men, in the Summer of 1914, On the land to cut the timber, and that appellee interfered with them and caused their arrest. Appellant's time to remove the timber WaS limited, and he was entitled to a decree restraining appellee from interfering with the operations of removing the timber; and, of course, the time does not run against appellant's rights until the interference is removed.
G: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
The decree is reversed, and the cause remanded, With directions to enter a decree in favor of the appellant in accordance with his complaint.
WEAVER, County Judge, v. KING. (No. 176.) (Supreme Court of Arkansas. Oct. 18, 1915.)
1. HIGHWAYS (8-995 — ROAD OVERSEERS POWERS AND L)UTIES. The statutory provision, requiring road overseers to keep their roads in good condition, only requires an overseer to use all the facilities granted him by law for that purpose, and does not authorize him to incur an indebtedness in excess of the revenues of his district. [Ed. Note.—For other cases, see Highways, Cent. Dig. §§ 309—312; Dec. Dig. Q:95.]
2. HIGHWAYS @->95—ROAD OVERSEERS-POWERS AND DUTIES. Kirby's Dig. $ 7314, which is a part of the statute providing an optional system of working roads, provides that at the time the county court meets to levy taxes it shall consider whether the roads shall be worked and bridges built as provided by that act, and if it shall so order, the order shall stand for 12 months, and that at the end of 12 months, when the taxes are again to be levied, if the court desires to continue to work roads and repair and build bridges thereunder, another order shall be made. Section 7318, which is a part of the same law, provides that no contract shall be made by the county judge or county court for the building of bridges or the working of roads until after the county court has levied the taxes for roads and bridges, and not until an estimate shall be made of the amount of money that will be raised, and that all contracts made and to be made within one year from the date of the levy of the taxes shall be in amount not to exceed the estimated levy. Held, that no indebtedness should be made by a district which cannot be met during the year in which it was incurred and while the law is in operation, and therefore a road overseer has no authority to incur an indebtedness for work on the roads of his district in excess of the district's revenues. [Ed. Note.—For other cases, see Highways, Cent. Dig. §§ 309-312; Dec. Dig. 3:95.]
Appeal from Circuit Court, Franklin
County; James Cochran, Judge.
Proceeding by T. C. Išing against William Weaver, County Judge, On a claim against the county. Judgment for the claimant, and the county appeals. Reversed and remanded, With directionS.
Geo. W. Barham, of Ozark, for appellant. Robt. J. White, of Paris, for appellee.
SMITH, J. Appellee was overseer of road district No. 24 Of Franklin county, and filed a claim against that district at the October, 1914, term of the county court for the sum of $313.97. This amount Was made up of
Various items for hired labor and teams and for appellee's own services, it being ShOWn that appellee had paid, Out of his Own funds, the amount of the claims for hired labor and teams, and no point is made of the manner of the presentation of those Claims. The claim Was allowed by the COunty court in the sum of $142.99, and the balance disallowed. An appeal Was taken to the circuit court, Where the entire claim Was allowed, and the county has appealed from that judgment. There is no material dispute as to the facts in the Case. The roads of Franklin County are worked under the optional System. Of WOrking roadS Set Out in Sections 7290 to 7323 of Kirby's Digest, known as the “Cotton Road Law.” At the July, 1914, term Of the County court a meeting of all the road Overseers in the County Was called, and this meeting was attended by appellee. At this meeting each road OverSeer Was adVised Of the amount of money in the County treasury to the credit of his district, and appellee Was advised that there Was $142.99 to the Credit Of his district, and each road Overseer was directed not to expend any Sum in exceSS Of the amount in the treasury to the Credit Of his district. The roads in district No. 24 were in such condition that they could not be properly Worked with the Said sum of $142.99, and appellee continued Working said roads and repairing them until he had expended the full amount set out in the claim, Which he filed With the County COurt for allowance.  It is urged that the directions in the Statute to road OVerseers to keep their roads in good COndition contained, and was sufficient, authority for appellee to incur the indebtedness evidenced by the items Set Out in the claim filed for allowance. But We do not agree With appellee in this contention. The directions to road overseers to keep their roads in good repair cannot be Construed to confer upon the Overseers the unlimited authority to incur any expense necessary for this purpose. This direction must be held to mean that he shall use all the facilities granted him by law for that purpose, and his actions must be governed by the law under which he operates.  This System of Working the roads known as the “Cotton Road LaW” is an Optional System, and does not obtain in any county unless that county shall, at the meeting of the county court for the purpose of levying taxes, make appropriate Orders for putting this law into effect. Such order, When SO made, Stands Only for a period of
- 12 months, and unless this Order is renewed
at the following meeting, the provisions of this Cotton road law are no longer effective, and the roads must thereafter be worked under the general road laws. Section 7314 of Kirby's Digest.
Section 7318 of Kirby's Digest is a part of the Cotton road law, and it is there provided that no contract shall be made by the county judge or county court for the building of bridges or repairing the same, or for Working roads, until after the county court has levied the taxes for roads and bridges under this act for the ensuing year, and then not until an estimate shall be made of the amount of money that will be raised by Such levy and collection for roads and bridges Within 12 months of the date of levy, and all contracts made and to be made Within One year from date of the levy of taxes shall be in amount not to exceed the estimated levy. Section 7318 of Kirby's Digest. The letter of this Section is So plain that We need not inquire What the Other provisions Of the act are to aid us in the construction of that section. But if such inquiry was made, it Would be found, as We have shown by reference to section 7314 Of Kirby's Digest, that this law can never be put in force for a longer period than 12 months, and that When the law has been put in force, the Order to that effect must be renewed annually, and the provisions Of the law, therefore, apply Only during the period of time covered by such orders. Consequently no indebtedneSS should be made by a district Which Cannot be met during the year in Which it was incurred and while the law is in operation. Monroe County V. Brown, 177 S. W. 43.
We conclude, therefore, that the road Overseer had no authority to incur the indebtedness in excess of the district's revenues, and the judgment of the court below, allowing this excess, must be reversed, and the cause Will be remanded, With directions to the court below to enter a judgment disallowing this exceSS.
HALL v. GAGE. (No. 168.) (Supreme Court of Arkansas. Oct. 18, 1915.)
1. APPEAL AND ERROR G->1002 - REVIEW
In an action for damages to plaintiff's
building by the falling of a wall on defendant's property, plaintiff's son who was pecuniarily interested in the building gave the only testimony as to the amount of damage which was not contradicted. On other matters, the son was contradicted. Held, that a judgment on a verdict for less damages than the amount claimed will not be disturbed, on the ground that the testimony as to damages was uncontradicted; the question of the credibility of witnesses being for the jury, and the son's credibility being affected by his interest and the contradiction of his other testimony.
[Ed. Note.—For other cases, see Appeal and # Cent. Dig. §§ 3935–3937; Dec. Dig. Q: 1002.]
2. APPEAL AND ERROR G2289—NEW TRIALNECESSITY. An assignment of error complaining that the court refused to allow defendant to introduce evidence to prove a defense cannot be considered, where not made a ground for motion
HART, J. J. H. Hall and Vince Gage owned adjoining buildings in the city of Hot Springs, Ark., which were destroyed by fire On September 1, 1913. Hall began the erection of a new building, and just after it was completed the wall of the building belonging to Gage, which had been left standing after the fire, fell over and crushed the new building of Hall. Hall sued Gage to recover damages, and alleged that the damage to his building was due to the negligence of Gage in leaving his wall standing after the fire. This is the second appeal in the case. The judgment in favor of the defendant was reversed On the former appeal, and reference is made to that opinion for a more extended statement of the issues. See Hall v. Gage, 172 S. W. 833, L. R. A. 1915C, 704. On a retrial of the case the jury returned a verdict for the plaintiff, Hall, in the sum of $350, and from the judgment rendered Hall has duly prosecuted an appeal to this court. Gage prosecuted a cross-appeal.
 The plaintiff in his complaint asked for damages in the sum of $1,500. The jury returned a verdict in his favor for $500. The plaintiff then asked for judgment for the full amount notwithstanding the verdict of the jury, and his contention here is that the court erred in not granting his request. In other Words, he contends that under the undisputed evidence he was entitled to the amount Sued for. We do not agree With him in this contention. It is true that no witness testified as to the amount of his damages, except his son, and that the jury might have found from the testimony Of Hall's son that he was damaged in the sum of $1,500, the amount sued for. But We do not think, under the circumstances, that it can be said that his testimony was undisputed. The plaintiff himself did not testify, and it appears from the testimony of his son that the son was interested With his father in the building which was destroyed. Both the questions asked by plaintiff’s counsel and the answers made by the SOn indicate that the Son Was greatly interested in the building, and was therefore directly interested in the result of the lawsuit. Moreover, the Witness described the condition of the walls and the kind of building which had been erected by his father and himself. In other words, by the testimony elicited from him. On his direct examination and CrOSSexamination the jury were fully informed as to the character and kind of building erected and the probable damage thereto.
&: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
There was the added circumstance that the Witness had testified as to Other material iSsues, and had been flatly contradicted by the evidence adduced in behalf Of the defendant. The jury were the sole judges of the credibility of the witnesses, and in weighing their testimony had a right to believe all or a part of the testimony of any Witness. They had the right to receive that part of the testimony which they believed to be true, and to reject that part which they believed to be false. When all these circumstances are Considered, we do not think it can be said that the testimony adduced in behalf of the plaintiff was uncontradicted, and that for that reason the judgment should be reversed, or that judgment should be rendered here in behalf of the plaintiff for the full amount Sued for.
 On the part of the defendant it is contended that the judgment should be reverSed, because he offered to prove that his wall had been blown down by an unusually Violent windstorm, and thereby Occasioned the damage to plaintiff’s building, and the court refused to allow him to make this proof. We cannot pass upon this contention of the defendant. He did not file a motion for a new trial, and hence we cannot review the alleged assignment Of error. The aSSignment complained of was a proper subject for a bill of exceptions; but, not having been made a ground for a motion for a new trial, we cannot consider it here. Prairie Creek Coal Mining Co. v. Kittrell, 106 Ark. 138, 153 S. W. 89; Thomas V. Jackson, 105 Ark. 353, 151 S. W. 521. Many other decisions might be cited, but the question has been SO thoroughly settled by this court that further citation of authority is not necessary.
It follows that the judgment must be affirmed.
OKLAHOMA STATE BANK V. BANK OF
(Supreme Court of Arkansas. Oct. 18, 1915.)
1. MONEY RECEIVED (8:59–FOLLOWING FUNDS —RIGHTS OF INNOCENT PARTIES. Money which has been misappropriated or obtained by fraud and afterwards paid to an innocent party cannot be recovered. [Ed. Note.—For other cases, see Money Received, Cent. Dig. § 31; Dec. Dig. 3:9.]
2. BANKS AND BANKING 3:156—COLLECTIONS —BANK AS AGENT—RECOVERING BACK.
M. executed a note which was sent to a bank for collection. He drew a draft on plaintiff in favor of W., who, acting as his agent and participating in the fraudulent scheme, deposited it with such bank for collection with instructions to credit the amount to M. or, as claimed by him, to apply it on the note. M. by false representa
tions induced plaintiff to pay this draft, and it was placed to M.'s credit on the books of the bank. Thereafter plaintiff informed the bank's cashier that M.'s conduct in the transaction was wrongful, and asked that the deposit be not disturbed until a suit could be commenced. W. thereafter directed the bank to apply the amount collected on the note, and the cashier stated that this would be done, indorsed the note as paid, and charged M.'s account with the amount, but subsequently erased the indorsement and credited the amount back to M. Held, that the bank collected the draft as M.'s agent, even assuming that it was directed to apply the amount collected on the note, and the amount, being recoverable by plaintiff from M., was likewise recoverable from the bank, even though the bank by placing the funds to M.'s credit constituted itself his debtor to that extent.
[Ed. Note.—For other cases, see Banks and #". Čent Lig. $539-546; Dec. Dig. 3= 3. BANKS AND BANKING G->165 – COLLEC
Upon receiving notice that payment of the
draft was wrongfully obtained, it was the bank’s duty to hold the funds as those of plaintiff, and it had no right to pay them out to another party, and hence, though the acts of the cashier would have constituted an appropriation of such funds to the payment of the note had they stood to the credit of M., the funds belonging to plaintiff the bank could not be held to the appropriation of the funds to the payment of the note, but had a right to withdraw such attempted appropriation and plaintiff and not the holder of the note was entitled to the funds.
[Ed. Note.—For other cases, see Banks and Banking, Čent. Lig. $ 571-573, 583-585; Dec. Dig. 3:165.]
McCULLOCH, C. J. This action was instituted in the circuit Court of Lonoke county, and, after the issues were joined by the pleadings, the case Was by agreement of parties transferred to the chancery court of that county and proceeded there to a final decree. The plaintiff, C. M. Keys CommisSion Company, a corporation doing business at East St. Louis, Ill., claims an indebtedness against defendant T. J. Muse in the Sum of $1,166.30, of which the sum of $1,150 was incurred by a draft drawn by Muse on said plaintiff in favor of one Ben Wildman, which said draft was deposited by Wildman for collection with the garnishee, Bank of Central Arkansas, at LOnoke, and paid by the plaintiff to said garnishee. R. F. Johnson and Oklahoma State Bank, a banking institution of Ada, Okl., were both joined as defendants, and a Writ of garnishment Was issued and served on the Bank of Central Arkansas. It