Whorton v. Hawkins
| Decision Date | 07 October 1918 |
| Docket Number | 148 |
| Citation | 205 S.W. 901,135 Ark. 507 |
| Parties | WHORTON v. HAWKINS |
| Court | Arkansas Supreme Court |
Appeal from Madison Chancery Court; Ben F. McMahan, Chancellor affirmed.
STATEMENT OF FACTS.
On the 8th day of February, 1918, a citation issued out of the chancery court of Madison County upon appellant, J. P Whorton, commanding him to appear in that court on February 12, 1918, and show cause why he had not paid to the commissioner of that court the sum of $ 425.96, which sum the court at its August term, 1917, had ordered its commissioner to pay to appellee, Rebecca A. Hawkins, out of the moneys held by appellant for the commissioner as in pursuance of the above decree in the case of Rebecca A. Hawkins v. W. E Danner et al. The citation was duly served, and the appellant filed his response in which he set up, (1) that he should not be required to pay the sum mentioned in the citation for the reason that no judgment had been rendered against him in the cause mentioned in the citation and no order of the court had been made requiring him to do so, and that there was no finding of the court that appellant had in his hands the sum mentioned; (2) that he had no money in his hands or possession belonging to the estate of R. B. Newman, deceased or arising from the sale of real estate belonging to said estate; (3) that he held a mortgage against the lands of R B. Newman which constituted his homestead, and had brought a suit for foreclosure against the children and heirs of R. B. Newman, one of whom, Earl Newman, was a minor 11 years of age; that after the foreclosure there was a balance in his hands belonging to the estate of R. B. Newman of $ 2,069; that respondent had purchased the interest of all the heirs in the homestead except the minor, Earl Newman; that in the foreclosure suit the court decreed that respondent was entitled to two-thirds of the surplus, and Earl Newman, the minor, was entitled to one-third; that at the August term, 1914, of the chancery court one W. E. Danner, guardian of Earl Newman, the minor, filed his petition praying the court for an order authorizing Alfred Hawn, the clerk of the court, to pay over to W. E. Danner as guardian of Earl Newman, as his part of the surplus from the sale of the homestead, the sum of $ 700; that the court entered a decree ordering such sum to be paid to the guardian, and the respondent, Whorton, was by the decree released from further payment, and the commissioner was authorized and did turn over to the respondent the balance of the surplus in his hands and took respondent's receipt therefor.
Respondent alleged that the surplus remaining from the sale of the homestead, therefore, was no longer a fund in the hands of the court, but was the absolute property of respondent. He further alleged that in the event the court should hold that the surplus from the sale of the mortgage was subject to the payment of the debts of the estate of R. B. Newman, the amount of $ 700 of such surplus which had been paid to the guardian of Earl Newman was also subject to the payment of the debts of R. B. Newman and should bear its proportion in the payment of same, and that respondent could not be required to pay the amount until he arrived at his majority and that he was then 18 years of age. He further alleged that appellee, Rebecca A. Hawkins, never had made any payment of any kind against the estate of R. B. Newman. He therefore prayed that the citation be discharged.
The commissioner's report showed substantially the facts as set up in the response to the citation, that he had been directed by the chancery court of Madison County to pay over the sum of $ 700 to the guardian of Earl Newman, which he had done and taken his receipt therefor, and that he had taken a receipt of J. P. Whorton for the balance of the surplus as a settlement in full of the judgment held by J. P. Whorton against the other heirs of R. B. Newman's estate. He reported that, in making the settlement with Whorton, the respondent, he had acted upon the advice and agreement of the court and counsel for all the parties in the original case of Whorton v. Ben and Earl Newman.
The original decree in the case of Rebecca A. Hawkins v. W. E Danner, guardian of Earl Newman and Joseph Whorton, rendered at the August term, 1917, was introduced and contains the following recitals: "On this day, this cause coming on to be heard upon the complaint of the plaintiff and the answer of the defendant, Joseph Whorton, from which the court finds; that the defendants, Earl Newman and Joseph Whorton, have each been served with personal service for the time and in the manner required by law. The court further finds that Joseph Whorton, who is the owner of the R. B. Newman homestead, has in his hands and possession the sum of $ 1,369.04 or rather that said sum is in the hands of the commissioner of this court due the said Joseph Whorton, and that the same is the proceeds of the homestead of Earl Newman, the sum arising from the sale of the foreclosure of a mortgage upon said homestead, which mortgage was held by the said Joseph Whorton. The court further finds that Rebecca A. Hawkins is the owner of a judgment against the estate of R. B. Newman, deceased, which judgment was rendered by the probate court of Madison County, Arkansas, in the total sum of $ 328.56...
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Dennison v. Mobley
...the entire record of the proceeding is before us. Bridges v. Arkansas Motor Coaches, (1974) 256 Ark. ---, 511 S.W.2d 651; Whorton v. Hawkins, 135 Ark. 507, 205 S.W. 901. The entire record is before us. We find no statutory or constitutional impediments to our treating this matter on certior......
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Blackard v. State, s. 4611-4621
...review by this Court of the judgment of the trial court in a contempt case is by certiorari, just as is here invoked. See Whorton v. Hawkins, 135 Ark. 507, 205 S.W. 901. In McCain v. Collins, 204 Ark. 521, 164 S.W.2d 448, 451, we said: 'The office of the writ (of certiorari) is merely to re......
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Carle v. Burnett
...under the decree, and as long as the decree remains in force its terms must be obeyed. That rule was adhered to in Whorton v. Hawkins, 135 Ark. 507, 205 S.W. 901 (1918) and the principle itself was recently underwritten by the Supreme Court in United States v. Rylander, 460 U.S. 752, 103 S.......
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Frolic Footwear, Inc. v. State, CR
...633. In 1918 a contempt case was brought up by appeal, but we treated it as being on certiorari and affirmed the decree. Whorton v. Hawkins, 135 Ark. 507, 205 S.W. 901. In 1950 we decided that although the review was by certiorari, we would review the evidence just as we would an appeal in ......