Raymond v. Raymond

• Decision Date: 10 June 1918
• Docket Number: 30
• Citation: 204 S.W. 311,134 Ark. 484
• Parties: RAYMOND v. RAYMOND
• Court: Arkansas Supreme Court

204 S.W. 311

134 Ark. 484

RAYMOND v. RAYMOND

No. 30

Supreme Court of Arkansas

June 10, 1918

Appeal from Baxter Circuit Court; J. B. Baker, Judge; reversed.

Judgment reversed and cause remanded.

Williams & Seawel, for appellant.

1. The court erred in its action with reference to the plea of res adjudicata and former suit pending. 94 Ark. 276; 40 Id. 558; 110 Id. 117-121. A judgment however erroneous, is binding unless reversed on appeal. 66 Ark. 629; 8 Id. 318; 31 Id. 187; 35 Id. 211; 25 Id. 108. The appeal and supersedeas of the probate judgment did not have the effect of vacating same but only stayed proceedings thereunder. 76 Ark. 486; 11 Id. 675; 45 Id. 373.

The judgment in the probate court, having adjudged title in the property, appellee is precluded from again litigating the question in another court. Her right to delivery was stayed by the appeal and bond, and she could not dismiss her cause of action. 29 Ark. 81; 45 Id. 375; 84 Id 213.

2. The court erred in refusing to direct a verdict for defendant because the value of the property of her decedent was shown to have been less than $ 300.

3. The court erred in its admission of testimony and in its refusal to admit certain testimony. 126 Ark. 618, 622. Self-serving declarations are not admissible. 123 Ark. 272; 70 Id. 541, etc.

4. The court erred in giving and refusing instructions. 56 Ark. 450; 75 Id. 336; 8 Id. 510; 91 Id. 240; 62 Id. 592; 119 Id. 215; 104 Id 67; 200 S.W. 281; 104 Ark. 130, 134; Cobbey on Replevin, § 517. The instructions do not state the law, and they are misleading and conflicting.

S. W. Woods, for appellee; Dyer & Alley, of counsel.

1. There was no error in refusing to sustain the plea of res adjudicata and former suit pending. The probate court had no right nor jurisdiction to try property rights. Kirby's Digest, §§ 60, 62; 15 Ark. 381; 110 Id. 117. On appeal the trial in the circuit court was de novo. Kirby's Digest, § 1351; 63 Ark. 145. The circuit court could only render such judgment as the probate court could have rendered. 52 Ark. 502; 110 Id. 117. Appellee had the right to dismiss her cause of action. 110 Ark. 117. The suits were for different purposes and under different jurisdictions and did not conflict and the pendency of one was no bar to the other. 52 Ark. 416; Ib. 502, etc. 66 Ark. 623 has no application.

2. There was no error in refusing to direct a verdict because the personal property of decedent was less than $ 300. The question of value of the estate was not an issue. The record fails to show that there were any minor children. If Raymond had left any the title would have gone to them jointly with the widow, and being minors they could not have waived title. 37 Ark. 316; 29 Id. 633. But the widow could waive or abandon her rights. 48 Ark. 230; 55 Id. 572. By bringing this suit she waived any right she had to the estate under section 3, Kirby's Digest, and appellant had no right to complain. 64 Ark. 213.

3. The court did not err in admitting or refusing to admit testimony. Declarations of the owner of property as to title to it while in his possession are competent evidence. 33 Ark. 207; 91 Id. 240; 77 Id. 309; 96 Id. 589. But if so, there was no prejudice as the facts and ownership were otherwise established by competent testimony.

4. There is no error in the instructions given or refused. They are not conflicting and as a whole declare the law.

OPINION

MCCULLOCH, C. J.

The plaintiff, Mrs. E. B. Raymond, instituted this action as administratrix of the estate of her deceased husband, Charles Raymond, against Andrew Raymond, before a justice of the peace to recover possession of two mules, one wagon and a set of harness, of the alleged aggregate value of $ 265, and the case was tried in the circuit court of Baxter County on appeal from the judgment of the justice of the peace. The plaintiff prevailed in the trial below and the defendant appealed.

On the trial of the cause before a jury the plaintiff introduced testimony tending to show that the property in controversy belonged to her husband, Charles Raymond, who died on August 12, 1916, and that the day after her husband's death the defendant, who was her husband's brother, wrongfully and without permission took the property away from the premises where the decedent died and wrongfully detained the same. The defendant asserted title to the property under a purchase from his brother, the decedent, and introduced testimony tending to establish his claim. The testimony so introduced by the defendant tended to show that about a month before Charles Raymond died he sold the property in controversy to defendant for an agreed price of $ 300, and made delivery in accordance with the terms of the sale, and that all of the purchase price had been paid except $ 46.05. The testimony thus adduced tended to explain the fact that the mules were at the premises of the deceased on account of the defendant visiting the place and that defendant had taken the stock with him during the critical illness of deceased just a few days before his death, and that when defendant left the premises at the time or immediately after the funeral he took the property away.

It is conceded that the property formerly belonged to decedent and was on his premises at the time of his death, and the only issue in the case was whether or not there had been a sale of the property by deceased to defendant according to the latter's claim.

When the cause was ready for trial in the circuit court defendant entered a special plea of the pendency of another action between the same parties, and in support of the plea introduced a record of statutory proceedings in the probate court in which the defendant, at the instance of the plaintiff as administratrix, had been cited to appear before that court and make disclosure of property of the estate in his possession. Kirby's Digest, §§ 60, 61, 62. The record introduced showed that at the hearing of the proceedings the probate court found that the defendant was wrongfully withholding the property and directed him to deliver the same to the administratrix. The court overruled the plea and defendant saved exceptions to the ruling.

The proceedings in the probate court were for an altogether different purpose and that court had no jurisdiction of a suit to recover possession of the property. The jurisdiction of the court was limited to a discovery of the property and an order to deliver the same to the personal representative of the decedent where there was no claim of ownership on the part of the person holding possession, but the court had no power to adjudicate the right of possession where there was a claim of ownership on the part of the person in possession. Moss v. Sandefur, 15 Ark. 381; Fancher v. Kenner, 110 Ark. 117, 161 S.W. 166. The ruling of the court was, therefore, correct.

It is next contended that the court erred in refusing to direct a verdict in favor of defendant on the ground that the proof showed that the property in controversy was less than $ 300 in value, and that the title thereto passed directly to the widow and minor children under the statute (Kirby's Digest, § 3), and that the right of action for recovery of the property existed in favor of the widow and minor children, and not the personal representative of the decedent. Counsel for defendant cite the case of Bertig v. Higgins, 89 Ark. 70, 115 S.W. 935, in support of that contention. It does not appear in the record that there are any minor children of the decedent and institution of the action by the widow in her capacity as personal representative of the decedent operated as a waiver of her exclusive right to sue for the possession of the property. Defendant is not subjected to the danger of another suit instituted hereafter by the widow, for a decision in the present case concerning the ownership of the property is a bar to any further action by the widow.

Error of the court is assigned in permitting the plaintiff to introduce testimony as to statements made by the...