Wood v. Keith

• Decision Date: 20 April 1895
• Parties: WOOD v. KEITH
• Court: Arkansas Supreme Court

30 S.W. 756

60 Ark. 425

WOOD v. KEITH

Supreme Court of Arkansas

April 20, 1895

Appeal from Franklin Circuit Court, Ozark District J. VIRGIL BOURLAND, Special Judge.

STATEMENT BY THE COURT.

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 & 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 Hon. 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 Hon. 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 Hon. 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, to put them off their guard, and to 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.

Judgment reversed and case remanded.

Jos. M. Hill for appellants. Anthony Hall and Ed. H. Mathes of counsel.

1. It is reversible error for a regular circuit judge to appear as counsel, over the objection of a party to the suit. Art. 7, sec. 25, Const.; 28 N.E. 923; 40 N.W. 473; 72 Minn. 367; 24 Mich. 243; 44 id. 290; 6 N.W. 671; Fitnam's, Tr. Proc., sec. 49; 38 Ill.App. 441; 84 Am. Dec. 126-133. The provision of our constitution is mandatory. 47 Ark. 407; 51 id. 177.

2. The testimony offered to show that Burke had other assets out of which he could have paid Keith, that Keith knew of the same, that the transfer was not for the sole purpose of paying him, but to transfer his property so as to defraud his creditors, was admissible. 59 Ark. 303; 23 id. 258; 39 N.W. 219; Ib. 820; 11 So. 761, 23 S.W. 92; 37 P. 128;.16 S.E. 914; 6 So. 273:8 Am & Eng. Enc. Law, p. 769.

3. The declarations of Burke, after the sale, that his creditors could now whistle for their money, and the evidence that Keith had no property in his own name at the time of the creation of the alleged debt, should have been admitted. 59 Ark. 303.

4. The admission of the mortgage on the merchandise, and the refusal to give instruction five are manifest errors.

5. It was error for the court to express its views upon the weight of Kennard's testimony. Thompson on Trials, sec. 219.

6. The court should have given instructions seven and eight, on the subject of estoppel. 33 Ark. 468; 39 id. 139; 2 Herm. Estoppel, sec. 788; Bigelow on Estoppel, p. 638 et seq. See also 2 Herm. Estoppel, sec. 794, and cases cited in note 7.

Edwin, Hiner for appellee.

1. It is not a violation of the spirit of our constitution, for a judge to appear who was retained and paid his fee prior to his election as judge. The constitution is merely directory.

2. 59 Ark. 303, relied on by appellants, presents an altogether different state of facts. This court notes the distinction between a sale to pay a bona fide debt and a stranger purchasing property from a fraudulent seller. 23 Ark. 258; see also 31 Ark. 666; 39 id. 571.

3. The mortgage was competent to show a bona fide debt.

4. Refused instructions one and two are elementary propositions, but those given fully explained to the jury the law of the case. Refused instruction six was properly refused because appellee could maintain the suit whether the note belonged to him or M. A. Keith. 48 Ark. 355.

5. The instructions on the subject of estoppel were correct. 33 Ark. 465; 54 id. 465; 98 Mich. 591.

OPINION

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 defendant's objection to the same by the court. Section 25, article 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 lay 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 thing it is no violation of the spirit of the law, if it is of the letter, to continue his services." This quotation serves to show the reasoning of appellee's counsel against the soundness of appellant's contention, and it contains an admission that it may be against the letter of the law for a judge to practice law.

In order to arrive at a correct understanding of the meaning of the constitutional prohibition, we are privileged to inquire as to the nature and character of the evils and abuses it was intended to prevent. If the contention of the appellee be sound, then the appearance of the judge as counsel in a court is not per se wrong, but may be wrong according as injury has resulted therefrom in the particular case. A sufficient answer to such a proposition is that such would be the effect of the law, even in the absence of a constitutional provision.

It is apparent that one of...