Felker v. Rice

• Citation: 161 S.W. 162,110 Ark. 70
• Parties: FELKER v. RICE
• Decision Date: 03 November 1913
• Court: Supreme Court of Arkansas

161 S.W. 162

110 Ark. 70

FELKER v. RICE

Supreme Court of Arkansas

November 3, 1913

Appeal from Washington Chancery Court; T. H. Humphreys, Chancellor affirmed.

STATEMENT BY THE COURT.

Nora B Rice instituted this action in the chancery court against James Pozza, J. E. Felker et al. to obtain judgment on a debt and to foreclose a mortgage given to secure it. Her complaint alleges, in substance, that James Pozza, on March 25, 1909 gave her a promissory note for $ 400 due on or before five years after date, and executed a mortgage on thirty-five acres of land in Washington County, Arkansas, to secure the same. The mortgage was made an exhibit to the complaint. That on the 24th day of February, 1910, James Pozza executed to the Bank of Rogers two mortgages on a part of the land embraced in the mortgage to her, but that said mortgages are subsequent in time to her mortgage. That on the 22d day of December, 1909, James Pozza conveyed to John E. Felker, a part of the lands embraced in the mortgage to her for a consideration of $ 600, $ 200 of which was paid at the time and for the residue of said purchase money said Felker agreed to pay off and discharge the $ 400 note and mortgage made and executed to the plaintiff by Pozza. That said deed was duly acknowledged and filed for record on the 20th day of January 1910. That the note and mortgage executed to her are due and unpaid. The prayer of the complaint is for personal judgment against Pozza and Felker for the debt; and for a decree foreclosing the mortgage. The complaint was filed on the 20th day of August, 1912. On the same day C. O. Baker filed an intervention in the action, setting up that he had a mortgage on the lands in question prior to the plaintiff's. On September 9, 1912, John E. Felker filed his separate answer in the action, and denied that he had purchased the lands from James Pozza and that he had promised to pay off the mortgage debt of Pozza to the plaintiff. On October 4, 1912, James Pozza filed a separate answer, in which he admitted that the mortgage debt was due, and stated that he had sold a part of the lands to John E. Felker, and that Felker, as a part of the consideration therefor, had assumed the payment of the note and mortgage of the plaintiff. On September 9, 1912, W. R. Felker, who had been made a party defendant to the action, filed an answer and cross bill, in which he denied that the mortgages of Pozza to the Bank of Rogers were subsequent in time to the mortgage of the plaintiff, and alleged that they were prior in time to the mortgage of the plaintiff. He prayed for judgment on the notes given to the bank, and for a foreclosure of the mortgages executed to secure the same. On the 12th day of October, 1912, the chancery court of Washington County made the following order in the case:

"On this date the defendant, J. E. Felker, was given ten days from this date in which to file an amended answer herein. It appearing to the court that James Pozza, who is to be a witness in this cause, can not speak the English language, on motion of his attorneys, Walker & Walker, it is ordered by the court that said James Pozza appear in this court on the 27th day of November, 1912, at 10 o'clock A. M., and there to testify orally before the court, his testimony to be reported and reduced to typewritten form and used as his deposition herein."

Hugh A. Dinsmore, for the plaintiff, testified that he had known John E. Felker for more than fifteen years, and that he thought that Felker had resided in Rogers, in Benton County, during that time. That he had known W. R. Felker, the father of John E. Felker, for twenty-five years, and that it was his understanding that he had been a resident of the city of Rogers during that time. That the Felkers had been engaged in business as bankers in Rogers for a number of years.

M. F. Croxdale testified that he was the circuit clerk and recorder of Washington County in January, 1910, and that in that month he received and filed for record and recorded a deed from James Pozza to John E. Felker, trustee. That after recording the deed on the 27th day of January, 1910, he mailed the deed to John E. Felker, at Rogers, Arkansas. The deed record was introduced in evidence, and showed to be dated the 22d day of December, 1909, from James Pozza to J. E. Felker, trustee, to a part of the lands embraced in plaintiff's mortgage. The deed recites:

"That I, James Pozza, widower, for and in consideration of the sum of $ 200 cash and the assumption of $ 400 mortgage, to us in hand paid by J. E. Felker, trustee, do hereby grant, bargain, sell and convey to the said J. E. Felker, trustee, his heirs and assigns, the following described lands, situated in Washington County, State of Arkansas, towit."

On the 27th day of November, 1912, which was a day of the August term of the chancery court, the chancellor heard the case and found the issues in favor of the plaintiff, rendered judgment against James Pozza and John E. Felker for the mortgage debt, and entered a decree foreclosing the mortgage. On that day, the record shows that the court adjourned until Friday, November 27, 1912. On the 29th, court met pursuant to adjournment, and adjourned until December 28, 1912. On December 17, 1912, J. E. Felker filed a motion to quash the execution in the above-styled case. On December 24, 1912, the defendant, W. R. Felker, made a motion to set aside the judgment and decree in the above entitled cause; and on the same day the court made an order staying the execution upon John E. Felker, giving a bond with W. R. Felker and A. L. Williams as his sureties, whereby they undertook and agreed to pay to the plaintiff, Nora B. Rice, the said judgment of the chancery court or any final judgment that might be rendered in said cause in case said judgment of the chancery court be sustained and the motions to set aside and vacate the same and to quash the execution be overruled. At the same term of the court, on the 28th day of December, the court made the following order:

"On this day it appears to the court that the separate motions of J. E. Felker and W. R. Felker were filed in vacation. Amended answer of J. E. Felker was filed by permission of the court over objections of plaintiff, Nora B. Rice, and defendants, James and John Pozza. This cause be continued and set for February, 1913, term. James Pozza required to appear in open court to testify at such time as may be fixed for. Payment of expenses $ 3 per day by J. E. Felker."

The testimony of James Pozza was taken, and he admitted that he executed the note sued on by the plaintiff and also a mortgage on certain real estate in Washington County, Arkansas, to secure the same, and that the note and mortgage were due and unpaid. He stated that he sold twelve and one-half acres of the land embraced in this mortgage to J. E. Felker for $ 600; that Felker paid him $ 200 and agreed to assume and pay his mortgage debt to the plaintiff as a part of the consideration for the deed; that he afterward paid $ 25 interest on the mortgage debt, but never paid anything further, and that he expected Felker to pay the mortgage debt as he had agreed to do.

J. E. Felker for himself testified, and stated that he was cashier of the bank at Rogers, but denied that James Pozza executed the deed in question to him, and denied that he assumed, or agreed to pay, the mortgage debt of Pozza to the plaintiff, Nora B. Rice. He denied that he was a member of the Tontitown Townsite Company, and denied that Captain Willie and P. Bandini were members of any such company.

The deed record shows that J. E. Felker, jointly with S. R. Willie, on the 13th day of April, 1910, executed to P. Bandini a deed which, among other things, contains the following recital: "This deed is executed by us as members of the Tontitown Townsite Company, a partnership composed of J. E. Felker, R. S. Willie and Pietro Bandini."

Felker further testified that he did not know James Pozza; had never met him, and had never had a conversation with him relative to the purchase of the land.

Pozza was an Italian, and testified that he sold the land to John E. Felker in the office of the Bank of Rogers; that there were several gentlemen present, and that he can not now recognize or identify the one who represented himself to be John E. Felker.

It was stipulated that the deposition of James Pozza, taken as evidence on the motion to set aside the original decree in this case, should be treated and considered as the evidence he gave at the trial of the case before the original decree was made.

On March 1, 1913, being a day of a subsequent term of the chancery court, the motions of W. R. and J. E. Felker were heard by the chancellor, and a decree was entered overruling the motion to set aside and annul the judgment and also the motion to set aside and quash the execution. The injunction issued on the 24th day of December, 1912, staying further proceedings under the original decree and the execution issued on it, was dissolved, and judgment was entered against W. R. Felker and A. L. Williams, the sureties on the injunction bond, for the amount of the debt sued on by the plaintiff. The defendants have duly prosecuted an appeal from both decrees of the chancery court. Other facts will be stated or referred to in the opinion.

Decree affirmed.

Dick Rice, for appellants.

1. The chancellor is presumed to have considered only competent testimony (141 S.W.507), and there was no competent evidence to sustain the original decree. Kirby's Dig., § 6128; 16 Cyc. 968. The best evidence must be produced, or the absence explained. 17 Cyc. 485; 88 S.W.871; 90 S.W.1003; 36 Id. 22; 130 Id. 556. Where there is no statute, neither the record nor copies are competent. Jones on Ev. (2...