Boynton v. Ashabranner

• Decision Date: 29 July 1905
• Citation: 88 S.W. 1011,75 Ark. 422
• Parties: BOYNTON v. ASHABRANNER
• Court: Arkansas Supreme Court

88 S.W. 1011

75 Ark. 422

BOYNTON v. ASHABRANNER

Supreme Court of Arkansas

July 29, 1905

Judgment modified. Petition for modification denied.

W. J Driver and E. F. Brown, for appellants.

J. T Coston and N. F. Lamb, for appellee.

HILL C. J. McCULLOCH, J.

OPINION

HILL, C. J.

This case was decided at this term, and is yet within control of the court, and the court has concluded that it erred in its ruling on a question of evidence, and of its own motion has decided to recall the mandate and insert this additional opinion therein for the guidance of the chancery court, and to modify the decree heretofore entered so as to remand for further proceedings, instead of remanding with peremptory directions to enter judgment for appellant.

The appellant, to prove his claim of title, offered a duly certified transcript from the land office showing the record of the issuance of a patent to Cross. The appellee objected to its introduction on, the ground that it was not the best evidence, the loss of the original not having been proved. The court overruled this objection, and the appellee duly excepted to the ruling. The court decided the case in favor of the appellee, Ashabranner, upon a totally different proposition. Upon the hearing in this court appellee insisted that its exception was well taken, and appellant's title not properly proved, and on the whole record the case ought to be affirmed, even if the court did not sustain his other contentions. The court held that the transcript was original evidence, and properly admitted. Two other cases have come here where the same point has been fully discussed, and the court has concluded that it erred in this case in holding the certified copy of the transcript to be original evidence and sufficient to prove the transfer, without laying proper foundation for its introduction as secondary evidence. The question is fully discussed in Carpenter v. Dressler, 76 Ark. 400, and the opinion therein will be made a part hereof in the mandate.

It does not follow, from this change of the opinion of the court on this question, that the case should be affirmed. The chancellor held the evidence competent, and based his adverse decision on other grounds, and thereby did not give the appellant an opportunity to render this evidence competent by laying the proper foundation, then, or suffering a nonsuit and bringing his action anew, wherein he could have his evidence in proper shape to be admissible. The practice contemplates that exceptions to depositions and documentary evidence be determined before final submission. See sections 2743, 3190, Kirby's Digest. This enables a party to nonsuit when he has mistaken the competency of his evidence and otherwise protect his rights. It would be manifestly unjust and contrary to the better practice to permit a defeat in an appellate court on an exception to evidence ruled in favor of the appellant, thereby throwing him off his guard and preventing him from properly protecting his rights when the decision against him is on totally different grounds. Such a case is not one for the application of the rule to affirm when on the whole record the judgment is right, although wrong reasons are given for it, but rather is a case calling for a remand for further proceedings wherein it is shown that the case is not fully devel-party as to his remedy when the interests of justice require the whole case to be more fully developed.

The judgment is modified to the extent that the cause is reversed and remanded for further proceedings not inconsistent herewith.

Supplemental opinion delivered November 11, 1905.

McCULLOCH J.

This case was decided by the court, and an opinion by the Chief Justice delivered on May 27, 1905, reversing and remanding it with directions to the chancery court to enter a decree in favor of appellants for the lands in controversy. One of the controlling points in that decision was the admissibility of a transcript of the record of the Commissioner of State Lands as primary evidence of the issuance of a patent, and the views then expressed holding the same to be admissible resulted in a decision, that appellants had sufficiently proved their title. We declined at that time to pass upon the validity of appellant's tax title and decree of confirmation, for the reason, as expressed by the Chief Justice in the opinion, that the view taken of the case by the court rendered a discussion of these issues unnecessary. Subsequently, the ruling of the court was changed as to the admissibility of the transcript as primary evidence of the issuance of the patent, and the mandate was recalled and amended, reversing the cause for further proceedings, so that appellants could have an opportunity either to take a nonsuit or to complete the proof of issuance of the patent. In thus changing the ruling upon the admissibility of this evidence, we failed to take account of the change it worked in the materiality of the question of the validity of appellants' confirmed tax title. Counsel for both sides now unite in a motion that we consider and decide that question; and if it be held that appellants' tax title or the confirmation thereof was valid, it will result in a direction to the lower court to enter a decree in their favor for the lands in controversy.

In addition to the original title, which is set forth and discussed in the former opinion, appellants claimed title to the lands under a...