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HAYLEY BEINE & CO., Limited, v.
THWEATT. (No. 206.)

(Supreme Court of Arkansas. Nov. 1, 1915.)
HOMESTEAD & 162—ABANDONMENT—INTENT.

Where, after death of his wife, the owner of a homestead continued to live in the house with his minor son, part of the time as sole occupant, part of the time after he had rented the house, reserving a room in which to keep his furniture and for occupancy of himself and son, until he got a job on a boat requiring his presence at night, and later work in the country, at all times reserving the room and keeping his furniture there, intending to return and live there, the son being still in his care, but staying with his married sister when the father made boat trips, but with the latter on his return, there was no abandonment of his homestead by the father.

[Ed. Note.–For other cases, see Homestead, Cent. Dig. §§ 315–319; Dec. Dig. Q:162.]

Appeal from Circuit Court, Prairie County; Thos. C. Trimble, Judge.

Action by Hayley Beine & Co., Limited, against A. Thweatt. There was judgment for plaintiff, upon which an execution Was issued. Defendant filed a schedule claiming personal property as exempt and certain realty as a homestead. Plaintiff filed exceptions to the schedule, which were overruled, and a supersedeas issued. Plaintiff's motion to quash was overruled on appeal to the Circuit court, and judgment rendered against him, from Which he appeals. Affirmed.

This appeal involves the question of abandonment of a homestead, the appellant in October, 1913, recoVered judgment against A. Thweatt, the appellee, upon which an execution was issued in May, 1914. Appellee in July, 1914, filed a Schedule, claiming his perSonal property exempt and tWO acres of ground, with the residence and improvements thereon, Situated about a quarter of a mile West of Des Arc, as a homestead. Appellant filed exceptions to the schedules, denying that appellee was at the head of the family, his right to claim the land as a homestead, and alleged that he had abandoned it. The exceptions were overruled, and a supersedeas iSSued; and upon appeal to the circuit Court, appellant's motion to quash WaS Overruled, and judgment rendered against him, from which this appeal is prosecuted.

Thomas & Lee, of Clarendon, for appellant. ThWeatt & Thweatt, of De Walls Bluff, for appellee.

KIRBY, J. (after stating the facts as above). Appellee lived in his home on the land With his Wife and Children until the death of his wife in 1911. His daughter was then sent away to School, and he had a family to live in the home with him and his son who was 16 years old. Upon the return of his daughter in July, 1912, they continued to live in the hOuSe until her marriage in September, and he and his son until January, 1913, when appellee rented the house as

a tenant, reserving one room in which to keep his furniture and for occupancy of himself and of his son until August, 1913, when he got a job on a boat that required his presence at night and later work in the country at another place near, but all the time reserved the room and kept his furniture in the house, intending to return and live there, and testified he had no intention whatever of abandoning his homestead. The son is still in his care, but stays with his sister When the father is on the boat making trips, but With the father upon his return.

The abandonment of a homestead is virtually a question of intent, to be determined from the facts and circumstances attendant upon each case. In Stewart V. Pritchard, 101 Ark. 103, 141 S. W. 505, 37 L. R. A. (N. S.) 807, the court said:

“The mere removal of the owner with his family from the homestead will not constitute such an abandonment. It is well settled that a temporary absence from the land, where there is a fixed and abiding intent to return to it, will not occasion an abandonment of it as a homestead. It has been frequently held that if a removal from a homestead is caused by necessity, or for business purposes, or for any other reason which requires the temporary absence of the owner, who at the time has and retains a fixed and unqualified intention to preserve it as a homestead and to return to it, this will not result in an abandonment of the land as a homestead. Tumlinson v. Swinney, 22 Ark. 400 |76 Am. Dec. 432]; Euper v. Alkire, 37 Ark. 283; Brown v. Watson, 41 Ark. 309; Gates v. Steele, 48 Ark. 539 [4 S. W. 53]; Robinson v. Swearingen, 55 Ark. 55 [17. S. W. 365]: Wilks v. Vaughan, 73 Ark. 174 [83 S. W. 913].”

There was no long-protracted absence of the debtor from his homestead shown, nor that he had acquired another home, and such facts, although they tend to show an abandonment, do not necessarily constitute One. The testimony at most shows but a temporary removal and change of residence by the father in Seeking employment for the Support of himself and son dependent upon him, without any intention of abandonment, and With a fixed and definite purpose of returning to and preserving the home, and Such absence and removal was not such an abandonment as forfeited appellee's homestead right.

The judgment is affirmed.

COUCH v. STARKS. (No. 205.) (Supreme Court of Arkansas. Nov. 1, 1915.)

1. REPLEVIN C:72—WERDICT-SUFFICIENCY OF EVIDENCE. Evidence in replevin for mules held sufficient to sustain a verdict for defendant. [Ed. Note.—For other cases, see Replevin, Cent. Dig. §§ 292-295; Dec. Dig. Q: 72.] 2. REPLEVIN C-969 – ISSUES – DEFENDANT'S LIABILITY AS INDORSER. In replevin for mules, where it appeared that they were sold by plaintiff to one who gave his note for the purchase money, in which title was reserved until payment thereof, and that on the buyer's own failure to pay he procured defendant to indorse a note, the question of de

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KIRBY, J. This case Was reversed on a former appeal because StarkS Was denied a trial by a jury. Stark V. Couch, 109 Ark. 534, 160 S. W. 853.

Upon the trial anew there was testimony tending to ShoW that the property in controVersy had been in the possession and under the control of the appellee, Starks. The mules Were Sold by appellant to One W. M. Hutchinson, who gave his note for the purchase money in which the title was expressly retained until the payment of the note. Upon Hutchinson's failure to pay the note, Couch demanded the return of the mules and Hutchinson procured appellee, V. Starks, to indorse the note, and appellant States that he at that time delivered the mules to Starks and that he would not have parted with the possession of them, but for his indorsement Of the note. He also Stated that the appellee upon the demand of payment of the note asked for further time until he could Sell Some cattle and procure the money With which to pay it. Appellee admitted signing the note as indorser, but denied that the mules Were ever delivered to him, Or that he had ever had them in his possession. Other Witnesses testified supporting his statement that he had never had them in his possession, and there was some testimony tending to show that they had been in his possession; but the jury found in his favor upon this point.

Appellant has no ground for complaint of the instructions given by the Court, which were more favorable than he was entitled to. This is an action of replevin, in Which the question of the liability of Starks as the indorser upon the Hutchinson note could not be determined.

There was no error committed in the trial, and the evidence is sufficient to Sustain the Verdict.

The judgment is affirmed.

USSERY v. USSERY et al. (No. 209.) (Supreme Court of Arkansas. Nov. 1, 1915.)

APPEAL AND ERROR G->766–RECORD ON APPEAL—BRIEFS AND ABSTRACTS. Where a brief on appeal fails to abstract the complaint sufficiently to show whether a demurrer was properly sustained or not, under Supreme Court rule 9, requiring appellant to file

an abstract or abridgment of the transcript, setting forth, the material parts of the pleadings upon which he relies, together with such other statements from the record as are necessary to a full understanding of the questions for review, the decree of the court below, disposing of the case on demurrer, will be affirmed.

[Ed. Note-For other cases, see Appeal and #. Cent. Dig. §§ 3101, 3126; Dec. Dig. G->

Appeal from Garland Chancery Court; Jethro P. Henderson, Chancellor.

Suit by Stella Ussery against Jim Ussery and others. Decree for defendants, and plaintiff appeals. Affirmed.

See, also, 113 Ark. 36, 166 S.W. 946.

Davies & Davies, of Hot Springs, for appellant. A. Curl, of Hot Springs, for appellees.

SMITH, J. Appellant states that she was the plaintiff in the complaint filed in the Chancery Court, Which she denominated a “bill of review.” It is Stated in the brief that: “And upon the presentation of plaintiff's bill of review the court finds as matters of law that the same does not contain facts sufficient to constitute a cause of action against either of the defendants, and as to the defendant or intervener A. Curl it shows on its face that there is no cause of action against him.” It is not entirely clear from this recital of the court's finding whether the cause was disposed of On demurrer in the court below Or not, as the brief does not contain an abstract of any evidence. Assuming, however, that the case was disposed of On demurrer, the fact remains that the complaint is not Sufficiently abstracted for us to determine whether this action was proper or not. Rule 9 of this court requires that the appellant shall file an abstract Or abridgment of the transcript, setting forth the material parts of the pleadings, proceedings, facts, and documents upon which he relies, together with such other statements from the record as are necessary to a full understanding of all the questions presented to this court for decision. Appellant's brief does not meet this requirement. Foster v. Luck, 112 Ark. 118, 165 S. W. 267; Reisinger v. Johnson, 110 Ark. 7, 160 S. W. 893; Queen of Ark. Ins. Co. v. Royal, 102 Ark. 96, 143 S. W. 596; Springfield V. Steen, 99 Ark. 242, 138 S. W. 453; Files v. Tebbs, 101 Ark. 207, 142 S. W. 159. It follows, therefore, that the decree of the court below must be affirmed.

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G->For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

2. DRAINS @:82—REVIEW-NUNC PRO TUNC ORDER—SUFFICIENCY OF EVIDENCE. On evidence in a proceeding for a nunc pro tunc order with reference to the assessments of benefits for the construction of a ditch, made more than eight years before, held, that the court could not say that the trial court erred in refusing to treat it as establishing with sufficient certainty the fact that the orders had been made as claimed by the petitioners. [Ed. Note.—For other cases, see Drains, Cent. Dig. §§ 81, 83–87; Dec. Dig. <>82.]

3. COURTS @:184—COUNTY COURT-JURISDICTION. A. county court could only make a valid order in term, time at the county seat, so that no order could be made at another point in the county where the court was not legally in ses$1OIn.

[Ed. Note.—For other cases, see Courts, Cent. Dig. § 409; Dec. Dig. 8:184.]

Appeal from Circuit Court, LaWrence County; Jno. W. Meeks, Judge.

Proceeding by C. L. Bottoms and others against J. J. BOrah. Judgment for defendant in county Court was affirmed by the circuit Court, and plaintiffs appeal. Affirmed.

H. L. Ponder, of Walnut Ridge, for appellants. W. A. Cunningham, of Walnut Ridge, and Horace Sloan, of Jonesboro, for appellee.

McCULLOCH, C. J. The present proceedings Originated in the county court of LaWrence county on petitions of the appellants to that Court to make Orders amending former orders nunc pro tunc, with reference to the assessment of benefits on the lands of appellants for the construction of a ditch. The County Court, On the hearing of the petitions, refused to make the Orders, as did the circuit court On appeal, and an appeal has been duly prosecuted to this court.

The case was heard by the circuit court upon Oral testimony. It appears that in the year 1906 a certain drainage district was formed in Lawrence county for the construction Of What is knoWn as the Borah ditch. Petitioners, Bottoms, Less, and Richardson, owned lands found to be affected by the ditch and which Were duly assessed by the viewers to pay for the improvement. After the assessments were made and report filed with the county court, notice was given for a hearing at the October term of the court, and it is alleged in the petitions that at that time the petitioners appeared and that the court amended the report by Striking Out the lands of appellant Bottoms altogether and by reducing the assessments on the lands of the appellants LeSS and RichardsOn. Richardson has since that time acquired the title to the LeSS lands. It is claimed that the county judge gave a hearing at the courthouse at POWhatan, the County Seat of LaWrence county, and there made an Order that the lands of Bottoms be Stricken out and relieved altogether of the assessment; that On a subsequent day there Was a hearing at Walnut Ridge, for convenience of the par

ties, concerning the Less and Richardson lands; and that after the hearing was ended, and after the return of the county judge to Powhatan, he announced the judgment and Order of the Court reducing the assessments On those lands. It is alleged that the Orders were made on October 3, 1906, and the petitions of appellants were filed on July 6, 1914 —a lapse of time of nearly eight years. We have a finding of the trial judge upon oral testimony to the effect that the orders changing the assessments on the lands of appellants had never been made, and we feel bound by that finding of the circuit judge unless we conclude that there is no testimony to support it. [1] It is the established rule in this State that a court may amend its record nunc pro tunc at a subsequent term upon Oral testimony alone. Bobo v. State, 40 Ark. 224. [2, 3] After a careful consideration of the evidence in this case, our conclusion is that there is enough conflict and doubt to prevent us from saying that the testimony is undisputed. Appellants, it is true, introduced a number of witnesses whose testimony tended very strongly to show that the orders excluding the lands of Bottoms and reducing the assessments on the other lands had been made. The county judge who served in 1906 was put on the stand as a witness, and he Stated that he had a distinct recollection that he had made an order excluding the Bottoms lands from the assessments, and his testimony also tended to establish the contention that the assessments on the Less and Richardson lands had been reduced, though his testimony as to those lands is not quite as clear as that relating to the Bottoms lands. Attorneys who were present at the time the court is said to have passed upon those matterS als0 testified, and their Statements tend to support the contention that the orders were made. All Of those gentlemen testified Very candidly, and there is not the slightest ground to believe that either of them intended to misstate the facts Within their recollection. But it must be remembered that this testimony was all given nearly eight years after the occurrence, and the testimony of each of the witnesses shows some obscurity as to the Occurrences of that day. There is also some conflict in the testimony which ShOWS that the Witnesses Were mistaken as to many of the details. The county judge stated that, according to his recollection, Mr. Bottoms came in without being represented by an attorney, and that he put him on the stand and examined him, and told him to go on home, that he would make the order excluding his lands from the assessment of benefits. He declares that he intended to, and did, announce the judgment of the court to that effect. His testimony is corroborated by that of Mr. Bottoms himself. Another Witness Who Was present Said that the county judge told Mr. Bottoms to go out with the Commissioners, who were present in court at the time, and see if they could not agree upon some solution of the matter, and that the parties came back in a little while and reported that they had decided to leave Bottoms' land Out of the assessment, and that the court thereupon made an order accordingly. The same witness testified that this occurred With reference to the assessments on the Less and Richardson lands, but the testimony of the commissioners is to the effect that they made no such agreement, and that no order was made at that time either striking out the Bottoms lands or reducing the assessments on the Less and Richardson lands. Nor is it entirely clear, even from the testimony of appellant Bottoms himself, that the court actually made an order. He says that the county judge told him to go on home, that he would take the assessment off; but this statement does not make it clear that the court was pronouncing judgment in the matter, but merely promised to take some favorable action later. There is still more doubt whether or not the court took any action on the Less and Richardson assessments, for the testimony in that case was heard at Walnut Ridge, and it is only Claimed that the Order WaS made at SOme subsequent time. The testimony of the county judge shows that he intended at the hearing at Walnut Ridge to make an order reducing those assessments, but it is by no means clear that he ever pronounced the order when he got back to Powhatan and held the court there. Of course, no order could be made at Walnut Ridge, for the court was not legally in session there, and in Order to show a valid order it must appear that the Order Was made in term time at POWhatan. Belford v. State, 96 Ark. 278, 131 S. W. 953. The county judge very frankly stated that, while he had intended to make an order when he got back to Powhatan, it was evident that he did not do SO, Or, at any rate, that it was not put on record. There is also a conflict in the testimony of the Witnesses as to the amount of reduction on the Less and Richardson lands, several of them agreeing that the aSSeSSments On the two tracts Were to be reduced to an aggregate of $300, while another witness stated that the assessment on one tract should be stricken off entirely. The testimony of that witness tended to show that the assessment on one tract was $250, and on the other $150, and that one of the assessments (which one it was not being specified in the testimony) was stricken out. Even if we should conclude that the evidence shows With Sufficient certainty that an order was made, still it was not clear what the Order Was as to the amount of reduction. The clerk of the court testified that he Was present at the hearings and took down on a certain yellow sheet of paper the minutes of the findings of the court as announced, and

that he took that paper back to Powhatan with him and filed it, but that he had not been able to find it.

The records of the county court show that the assessments made by the viewers were approved and the proper allotments were made covering the cost of the ditch. There is not a thing on the record or among the files of the court to Support the contention that any Order Was made with respect to the assessments On these lands other than the general order approving the report of the Viewers. No exceptions to the report were filed by either of the appellants, and no docket entries made by the judge, and there is no memoranda of the clerk or judge ShOWing that the report Was changed with respect to these lands. The statute (section 1428, Kirby's Dig.) seems to provide that written exceptions Should be filed, and it expressly provides that the person or persons making exceptions to the report shall file a bond to be approved by the court. Whether or not it is essential to the jurisdiction of the county court that the exceptions be made in writing and the bond filed we need not determine now ; but, in testing the sufficiency of the evidence in the case, it is very important to consider that no Writing at all was filed SO as to leave On the record a trace Of the proceedings which appellants now contend they inaugurated and prosecuted to a successful conclusion in having the assessments on their lands corrected. In this state of the proof, we are unwilling to say that the trial court erred in refusing to treat this testimony as establishing with sufficient certainty the fact that the orders had been made as contended for by appellants. In order to correct the record upon oral testimony alone, the evidence should be clear and convincing. McDonald v. Watkins, 4 Ark. 629; Bobo V. State, supra. Any other rule would place the solemn records of a court upon too insecure a foundation.

Affirmed.

CHICAGO MILL & LUMBER CO. v. DRAINAGE DIST. N.O. 16. (No. 200.)

(Supreme Court of Arkansas. Nov. 1, 1915.)

1. COURTS @:185-CIRCUIT COURTS-JURISDICTION. Under Acts 1901, p. 143, dividing a county into two judicial districts, in one of which was located the county seat, where was held the county court, and giving appeals from the county court to the circuit court of the district in which the county court was held, appeals from the county court lie only to the circuit court in which the county seat is situated, and the other circuit court has no jurisdiction thereof. [Ed. Note.—For other cases, see Courts, Dec. Dig. 3:185; Appeal and Error, Cent. Dig. §§ 102, 3377, 3627.] 2. APPEAL AND ERROR C+185 – QUESTIONS REVIEWABLE—JURISDICTION. While the general rule is that an appellate court with jurisdiction to review errors at law can only review such questions as have been raised and excepted to in the lower court, yet jurisdiction is an open question until the case is finally disposed of, and may be raised for the first time in the appellate court.

Q->For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1166–1176, 1375; Dec. Dig. G->185.]

Appeal from Circuit Court, Mississippi County, Chickasawba District; J. F. GautIney, Judge.

Proceeding for the establishment of Drainage District No. 16, in which the Chicago Mill & Lumber Company remonstrated. Judgment affirming an Order establishing the district, and the remonstrator appeals. Dismissed.

Coleman, Lewis & Cunningham, of Blytheville, for appellant. R. A. Nelson, of Blytheville, and J. T. Coston, of Osceola, for appellee.

HART, J. This is an appeal from the circuit Court of the Chickasawba district of Mississippi county establishing drainage district No. 16 in that county. The cause originated in the county Court, Where a petition in due form was filed by landowners asking that the district be established. Certain landOWners Within the proposed district then filed a remonstrance, in which they set up that the improvements contemplated were impracticable. The county court, after hearing the evidence introduced by both parties, made an order establishing the district. The remonstrators prayed an appeal to the circuit court, and this was granted by the county court. The appeal was heard and determined by the Mississippi circuit court for the Chickasawba district, and the judgment of the county court establishing the district Was affirmed. The remonstrators have duly prosecuted an appeal to this court.

[1] The circuit court of Mississippi county for the Chickasawba district had no jurisdiction to hear and determine the appeal from the county court. Mississippi County Was divided into two judicial districts by the Legislature of 1901. See Acts 1901, p. 143. These districts are the OSCeola district and the Chickasawba district. Osceola, situated in the Osceola district, is the county seat, and the county court is held there. By the terms of the act appeals from the county court lie to the circuit court of the district in which the county court is held. The proVisions of the act in regard to the establishment of the courts and taking appeals is essentially the same as the act creating two judicial districtS in Clay County, and in construing that act this court, in the case of Belford v. State, 96 Ark. 274, 131 S. W. 953, held that appeals from the County Court lie to the circuit court in Which the county seat is situated, and in Which the County court is held.

[2] No Objection, however, Was made to the jurisdiction in the lower court, and this

brings us to the question whether objection to the jurisdiction can be made here for the first time. The general rule is that, when the appellate court only possesses jurisdiction to review and reconsider errors of law, it can only review such questions as have been raised and excepted to in the lower court, unless the error relates to the jurisdiction of the lower court to hear the cause Or to determine the question in controversy. When such question appears, and the lower Court has no jurisdiction over the Subject-matter, the appellate court will dismiss the appeal and cause as one improvidently commenced. Brown on Jurisdiction (2d Ed.) $ 21a. See, also, Ayers v. Anderson-Tully Co., 89 Ark. 160, 116 S.W. 199. Thus it will be seen that the question of jurisdiction of the Subjectmatter is an open one until the case is finally disposed of. To hold that the question of the jurisdiction of the trial court could not be raised in the appellate court for the first time would be, in effect, to hold that consent could give jurisdiction and would result in the affirmance of a judgment Which the trial court had no authority to enter. South. & W. Ry. Co. v. Commonwealth, 104 Va. 314, 51 S. E. 824. Though the act in question created two judicial districts in Mississippi County and defined the power and jurisdiction of the courts therein created, it did not attempt to create two separate and distinct county courts. Osceola remained the county Seat and Was Situated in the Osceola district. The act provided that appeals from the county court Should be taken to the circuit Court in the district where the county Seat Was located and the county court held. It follows that the circuit court for the Chickasawba district of Mississippi County had no jurisdiction to hear and determine appeals taken from the county COurt. The appeal will therefore be dismissed.

VEHICLE SUPPLY CO. et al. v. McINTURFF et al. (No. 201.)

(Supreme Court of Arkansas. Nov. 1, 1915.)

1. TROVER AND CONVERSION &a=40—VERDICT

—SUFFICIENCY OF EVIDENCE.

Evidence, in an action against a partner

ship for the conversion of goods delivered to it by a railroad, without payment of plaintiff’s, the consignor's, draft, held to sustain a verdict for plaintiff on the issue Whether the consignor consented to the delivery as made.

[Ed. Note.—For other cases, see Trover and Conversion, Cent. Dig. §§ 120–122; Dec. Dig. &:40.]

2. CARRIERS @:58-BILL OF LADING-DELIV

ERY. A bill of lading is regarded as the symbol of the property described therein, and its delivery by the holder and consignor to a bank with draft attached is equivalent to a delivery of the property so far as they are concerned. [Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 179–190; Dec. Dig. Q:58.]

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