Rutherford v. Casey

• Decision Date: 10 December 1934
• Docket Number: 4-3634
• Citation: 77 S.W.2d 58,190 Ark. 79
• Parties: RUTHERFORD v. CASEY
• Court: Arkansas Supreme Court

77 S.W.2d 58

190 Ark. 79

RUTHERFORD v. CASEY

4-3634

Supreme Court of Arkansas

December 10, 1934

Appeal from Independence Chancery Court; Alvin S. Irby, Chancellor affirmed on appeal and reversed on cross-appeal.

Decree affirmed in part, reversed and remanded in part.

Claude Caldwell, I. J. Matheney and T. A. Gray, for appellant.

Dene H Coleman and Shields M. Goodwin, for appellee.

OPINION

MEHAFFY, J.

On August 21, 1933, L. M. Lawrence filed suit in the Independence Chancery Court alleging that he was in feeble health but in possession of his mental faculties; that he was and had been, for forty days before filing the suit, confined in the hospital of Dr. F. A. Gray at Batesville, Arkansas that about August 15, 1933, while he was so confined, W. A. Rutherford, the appellant, procured plaintiff's key to his lockbox in the North Arkansas Bank at Batesville; that said Rutherford fraudulently and by trickery gained possession of the key without the knowledge or consent of Lawrence, and thereupon obtained access to the lockbox, and took therefrom the personal property belonging to said Lawrence. The property alleged to have been so taken was United States government bonds, $ 3,000; preferred stock in Arkansas Power & Light Company, $ 1,700; stock in the Southwestern Bell Telephone Company, $ 500; and $ 200 worth of stock in the First National Bank of Newport; and about $ 16 in gold coin, and some other small property. He further alleged that at a late hour of the night Rutherford claims to have procured from plaintiff the transfer of said personal property, but that plaintiff had no knowledge of the pretended transfer, and never intended to give said property or any part of it to said Rutherford; that, if the transfer was made, it was fraudulently and corruptly done, and that, as soon as said Lawrence was informed about the matter, he demanded its return, but that Rutherford refused to deliver it to him; that he was threatening to sell, transfer and dispose of said property, and would do so unless the court entered forthwith a temporary injunction; that defendant was insolvent, and, if he disposed of said property, it would result in irreparable injury to the plaintiff; that the property described was practically all of the liquid assets of plaintiff, who was more than eighty years of age. There was a prayer for injunction and restraining order, and that the court cancel and set aside the transfers, and the plaintiff be decreed to be the owner. There was a temporary injunction issued and served on the same day the complaint was filed.

L. M. Lawrence died on August 28, 1933. The will of L. M. Lawrence, made July 8, 1933, appointing S. M. Casey as executor, was filed and admitted to probate, and on October 9, 1933, the suit begun by L. M. Lawrence was revived in the name of S. M. Casey as executor. On September 20 notice was served on Rutherford to appear at a hearing in the chancery court and state what property he had in his possession or under his control at the time the injunction was served on him. On October 9 Rutherford appeared and was examined with reference to the disposition of the property; he admitted that he had procured all the property, but said that Mr. Lawrence had given it to him, and that he had disposed of all of it before the injunction was issued. He named the persons to whom he had transferred the property.

An amendment to plaintiff's complaint was filed, making William A. Rutherford, Jr., Mrs. Lou Alice Brown and Mrs. Emmogene Shepard parties defendant, and asking that a warning order be issued, which was done. Defendant filed a demurrer to the complaint on the ground that the chancery court had no jurisdiction of the subject-matter, that there was a defect of parties defendant, and that the complaint did not state facts sufficient to constitute a cause of action. The court overruled the demurrer, and the defendant then filed a petition for a writ of prohibition, to prohibit the chancellor from proceeding further. A temporary writ of prohibition was issued by one of the judges, the court not being in session, and after the holidays the court considered the matter and denied the writ of prohibition, dismissed the temporary writ, and dismissed the petition therefor.

An amendment was then filed to the complaint asking that the corporations above named issue certificates of stock in favor of S. M. Casey as executor of the estate of L. M. Lawrence. Answers were filed by the telephone company and Arkansas Power & Light Company, admitting that the certificates referred to were on the books in the name of Laclede M. Lawrence, and they asked what disposition should be made of these certificates.

The evidence showed that Rutherford was a relative of Lawrence and that Rutherford was kind to him during his sickness, and visited him frequently. It also shows that Rutherford got the property described in the complaint out of the lockbox, and, according to his testimony, took it to Lawrence at the hospital about eleven o'clock in the morning; that Lawrence at that time gave him the United States bonds, and that that night, about ten or eleven o'clock, he took the certificates of stock to Lawrence, and in the presence of Mr. and Mrs. Doyle, Lawrence signed the certificates. He was not able to sign his name because of a paralytic stroke, and, while one of the parties held his hand, he made his mark on each of the certificates. This was late at night, after visiting hours at the hospital, and no one was present except Rutherford, Doyle, and his wife. Dr. Gray was not present. No reason is given why the certificates might not have been transferred at eleven o'clock in the morning, instead of waiting until eleven o'clock that night when Dr. Gray and all the visitors had left the hospital.

Several witnesses testified about Mr. Lawrence's condition and about his calling for Rutherford frequently. Lawrence, before his death, stated that he did not give the bonds and certificates to Rutherford, never intended to do so, and that they were procured fraudulently and without his consent.

The chancellor, after hearing the evidence, entered a decree finding that W. A. Rutherford procured all of the personal property mentioned in the complaint of L. M Lawrence by fraud and corruption, and ordered that the pretended transfers be canceled, set aside, and held for naught. The court further decreed that S. M. Casey, as executor, have and recover from W. A. Rutherford $ 6,000, which the court found to be the value of the stocks and bonds. The decree also required the defendant, W. A. Rutherford, Jr., to surrender bonds of the value of $ 300, and that Mrs. Emmogene Shepard deliver to S. M. Casey as executor, $ 500 in government bonds, and stock certificates referred to in...