McPherson v. Smith

• Decision Date: 16 November 1959
• Docket Number: No. 5-1926,5-1926
• Citation: McPherson v. Smith, 328 S.W.2d 849, 231 Ark. 228 (Ark. 1959)
• Parties: W. E. McPHERSON, Petitioner, v. Ford SMITH, Chancellor, Respondent.
• Court: Arkansas Supreme Court

Page 849

328 S.W.2d 849

231 Ark. 228

W. E. McPHERSON, Petitioner, v.Ford SMITH, Chancellor, Respondent.

No. 5-1926.

Supreme Court of Arkansas.

Nov. 16, 1959.

Victor L. Nutt and Lloyd Henry, Augusta, for appellant.

John D. Eldridge, Jr. and George P. Eldridge, Augusta, for appellee.

ROBINSON, Justice.

Helen McPherson filed suit for divorce in the Woodruff Chancery Court alleging as grounds three years separation.The complaint also asked that her husband, W. E. McPherson, be required to render an accounting of a trust of which he was co-trustee.The case is here on a petition for a writ of prohibition.Petitioner is the defendant in the action filed below in chancery court.

Petitioner filed two motions to strike, both of which contained the allegation that the complaint stated two causes of action, namely, one for divorce and the second for a trust accounting.In addition, the first motion alleged that the court had no jurisdiction of the trust res in that it was not located in Woodruff County and petitioner was not a resident of and was not served in Woodruff County.The second motion alleged that the two causes of action were improperly joined.The chancery court overruled both motions to strike.

For his writ of prohibition, petitioner argues the points relied on below in both motions to strike.It is unnecessary, however, to discuss anything other than the question of improper joinder of actions.

The case turns on the complaint filed in the chancery action.In it the normal allegations for a divorce are first made and then it alleges that the plaintiff and petitioner in 1951 executed a trust instrument naming themselves as trustees and their three children beneficiaries.The trust instrument, a copy of which was attached to the complaint, states that one of the children, W. E. McPherson, Jr., is to become a co-trustee upon reaching 21 years of age.He is now 22 years of age and has assumed this role.The prayer of the complaint asks 'that the defendant, W. E. McPherson, be required to account to this court for the operation of the trust property from the beginning of the trust to the present time; that he be required to make distribution to the beneficiaries under the terms of the trust; and that if the court finds that the defendant has violated the terms of the trust that he be enjoined from engaging in such violations in the future and required to make the trust estate whole', and then follows the prayer for divorce, adjudication of property rights and other customary relief in divorce actions.

The...