Wood v. Keith

• Decision Date: 20 April 1895
• Citation: 30 S.W. 756
• Parties: WOOD, Sheriff, et al. v. KEITH.
• Court: Arkansas Supreme Court

30 S.W. 756

WOOD, Sheriff, et al. v. KEITH.

Supreme Court of Arkansas.

April 20, 1895.

Appeal from circuit court, Franklin county; J. Virgil Bourland, Special Judge.

Action by J. A. Keith against O. C. Wood, as sheriff, and another, to recover goods held under a writ of attachment sued out by the Townsly-Myrick Dry-Goods Company in an action against A. J. Burke. The dry-goods company was made a party defendant to this action, and from a judgment for plaintiff defendants appeal. Reversed.

The plaintiff, J. A. Keith, filed his complaint in replevin in the Logan circuit court against the defendant O. C. Wood, as sheriff, and his deputy, for the recovery of a stock of goods held by the defendant sheriff under and by virtue of a writ of attachment issued out of said circuit court in a cause wherein the defendant Townsly-Myrick Dry-Goods Company was plaintiff and one A. J. Burke was defendant; the plaintiff claiming to be the owner of said stock of goods by virtue of a purchase theretofore made from the said A. J. Burke, the owner thereof at the time of said purchase from him. The said Townsly-Myrick Dry-Goods Company petitioned to be made a party defendant, and, it being the real party in interest, its petition was granted. The defendants then applied for a change of venue, and the same was changed to the Ozark district of Franklin county, and defendants answered, admitting the value of the goods in controversy to be $1,342.12, and that they were levied on as the property of said A. J. Burke in the attachment proceedings aforesaid; and also that other and junior writs of attachment, at the instance of Isaacson and Davis, were issued out of the Scott county circuit court, and levied on the stock of goods aforesaid. The defendants denied and put in issue the plaintiff's ownership of said goods, and this constitutes the controversy herein, except as to matters of procedure. The regular judge, the Honorable J. H. Evans, being disqualified to hear and determine the cause, by reason of having been of counsel for the plaintiff before his election to the office of circuit judge, J. V. Bourland, Esq., one of the regular practicing attorneys of that court, was duly elected to preside in the trial of this cause, and before him as special judge the trial progressed to judgment. It appears from the record that the regular judge, the Honorable J. H. Evans, aforesaid, when both parties had announced ready for trial, appeared as counsel for the plaintiff, assisting in selecting the jury, examining the witnesses, and opening and concluding the argument for the plaintiff to the jury, and generally managing and conducting the cause for plaintiff as senior counsel, the Honorable A. S. McKennon being associated with him as junior counsel, and also present and assisting in the cause. There was proof tending to show the bona fide character of the debt from Burke to Keith, and also of the sale of the former to the latter in satisfaction of said debt, and that the price given for the goods was reasonable. On the other hand, there was evidence tending to show that the existence of the debt from Burke to Keith was concealed from Burke's other creditors, and that they both acted in a manner calculated to mislead the other creditors, put them off their guard, and induce them to forego the assertion of present rights. But the foregoing is sufficient for present purposes. Verdict and judgment for plaintiff. Exceptions taken, and appeal by defendants.

Jos. M. Hill (Anthony Hall and E. H. Mathes, of counsel), for appellants. Edwin Hiner, for appellee.

BUNN, C. J. (after stating the facts).

The first question that confronts us in this case is that raised by the appearance of the regular circuit judge as counsel for plaintiff, and the overruling of defendants' objection to the same by the court. Section 25, art. 7, of the constitution is in these words, to wit: "The judges of the supreme, circuit or chancery courts shall not, during their continuance in office, practice law or appear as counsel in any court, state or federal, within this state." It is contended by the appellee's counsel in argument that the provision of the constitution just quoted is directory merely, and not mandatory, and that, therefore, if no error is found otherwise, the case should not be reversed on that account. They contend and say: "We feel no doubt at all but that it would be a violation of the constitution, both in letter and spirit, for any judge of the class prohibited by the constitution from practicing law to accept a retainer after his election as judge. But in a case like the one at bar, where a lawyer has received pay from his client for his services prior to his election as judge, we think it is no violation of the spirit of the law, if it is of the letter, to...