Gregory v. Colvin
| Decision Date | 16 January 1963 |
| Docket Number | No. 5-2845,5-2845 |
| Citation | 363 S.W.2d 539,235 Ark. 1007 |
| Parties | Bessie GREGORY, Petitioner, v. G. B. COLVIN, Jr., Judge, Respondent. |
| Court | Arkansas Supreme Court |
Bernard Whetstone, El Dorado, for petitioner.
Thomas D. Wynne, Jr., and Frank W. Wynne, Fordyce, for respondent.
This is a petition for a writ of mandamus directing the respondent Circuit Judge to set a case for trial.
In September, 1959, petitioner, Bessie Gregory, filed suit in the Circuit Court of Dallas County against Fred Thompson and Henry Thompson, d/b/a Thompson Buick Company, in tort for conversion of cash belonging to petitioner. On November 16, 1959, the case was tried before a jury of twelve and resulted in a hung jury, seven to five in favor of petitioner. The trial court declared a mistrial and dismissed the jury. Thereafter on January 23, 1961, the case was again tried and again resulted in a deadlocked jury, six to six. After several requests for resetting the case for trial, on June 18, 1962, the respondent entered an order permanently denying petitioner's request for trial, stating that, 'The Court is of the opinion that any future trial of this case would simply again result in a deadlocked jury and a mistrial and cause the county further wasted expense.' From this order comes this petition for writ of mandamus.
In support of her petition, petitioner contends that the trial court's order effectively and permanently denies her a trial and final adjudication of her rights and deprives her of property without due process of law.
This is apparently a case of first impression. We have been unable to locate any cases in Arkansas or any other jurisdiction that are directly in point.
Petitioner's suit in tort is a 'chose in action'. It is defined in 73 C.J.S. Property § 9b, as follows:
'A 'chose in action' means, literally, a thing in action, and is the right of bringing an action, or a right to recover a debt or money, or a right of proceeding in a court of law to procure the payment of a sum of money, or a right to recover a personal chattel or a sum of money by action, * * *.'
It is basic property law that a chose in action is personal property. The right to sue for damages is property. See 73 C.J.S. Property §§ 2, 9, generally; also Redfern v. Collins, 113 F.Supp. 892 (D.C., Tex.); Wills v. Franklin, 131 F.Supp. 668 (D.C., Tenn.); Wilson v. Brown, 106 F.Supp. 500 (D.C., Ky.).
The California District Court of Appeal, in Werner v. Southern California Associated Newspapers, Cal.App., 206 P.2d 952, stated the rule as follows:
'The right to recover actual damage is property and the constitutional guarantees of that right are the same as of other property rights, hence an injured party cannot be deprived thereof without due process of law, which means that he is entitled to a hearing and determination by a court of law.'
In the case at bar, petitioner has sued and had two trials, both of which resulted in mistrials. A mistrial is often defined as being equivalent to no trial; certainly there has been no final determination of petitioner's cause of action. Petitioner contends that to deny her another trial is to deprive her of property without due process of law, in contravention of the constitutional guarantees.
Section 13 of Article 2, Declaration of Rights, of the Constitution of Arkansas, is as follows:
'Redress of wrongs.--Every person is entitled to a certain remedy for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase, completely, and without denial, promptly and without delay, conformably to the laws.'
Similar protections are provided in the Constitution of the United States:
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Ahlborn v. Arkansas Dept. of Human Services, 03-3377.
...property law that a chose in action is personal property," and that "the right to sue for damages is property." Gregory v. Colvin, 235 Ark. 1007, 363 S.W.2d 539, 540 (1963). The Arkansas assignment statute, moreover, contemplates that the lien arises after Ahlborn receives her settlement fr......
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Cordial v. Grimm
...claim was a chose in action, and as such must be considered to have been the personal property of appellant. See, Gregory v. Colvin (1963), 235 Ark. 1007, 363 S.W.2d 539, 540; Peavy Lumber Company v. Murchison (1961), 272 Ala. 251, 130 So.2d 338, 340. Cf: Merritt v. Economy Dept. Store, Inc......
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Dodson v. Allstate Ins. Co.
...for that reason, appellant had no right to a review of that denial on appeal, because no verdict was entered); Gregory v. Colvin, 235 Ark. 1007, 363 S.W.2d 539 (1963). Stated otherwise, a mistrial is a proceeding that has miscarried, and the consequence is not a trial. Midwest Lime Co. v. I......
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Farm Bureau Mut. of Ar. v. Running M Farms
...to no trial having occurred at all, as there has been no final determination regarding a claimant's cause of action. Gregory v. Colvin, 235 Ark. 1007, 363 S.W.2d 539 (1963). Stated otherwise, a mistrial is a proceeding that has miscarried, and the consequence is not a trial. Midwest Lime Co......