(273 S.W.) said collector by said clerk," did not constitute a sufficient charge that those persons were voters whose poll taxes were not assessed by the county clerk and certified to the collector as specified in the statute, which reads as follows: this contest in the circuit court of Boone | plemental tax book made and delivered to county. He alleged in his complaint that he had made demand upon the election commissioners for a recount of the ballot, but had been refused, and prayed for an order of the court requiring the commissioners to recount the ballots. The court granted the prayer, and there was a recount by the commissioners under order of the court, which developed that, according to the ballots which had been cast, appellee received a majority of 134 votes. Appellant also alleged in his complaint that there were 1,198 illegal votes cast for appellee, and a list of those illegal ballots was appended. The allegation with respect to these votes appears in the complaint as follows: "That said voters procured poll tax receipts from the collector of Boone county, Ark., whose names were not on the original tax books as delivered to said collector by the clerk of the county court of Boone county, Ark., or on any supplemental tax book made and delivered to said collector by said clerk, and that the collection of the same therefor when said tax was not on said tax books or any supplement thereto was contrary to the law and a felony under the statutes of the state of Arkansas, and he therefore avers that a poll tax receipt procured in this way would not confer on the person so procuring it the right to vote on the same, and that the following illegal votes were cast for Bob Shaddox, and plaintiff states that to eliminate said illegal votes that the plaintiff received a large majority of the votes cast at said election; that the names of such illegal votes cast against this plaintiff were as follows: [Here follows the list of 1198 names.]" The court sustained appellee's demurrer to the above paragraph, and appellant declined to plead further, and the complaint was dismissed. "Sec. 3738. Addition of Omitted Names. At any time after the assessment lists have been delivered to the county clerk for the purpose of enabling him to prepare the tax books for the collector, any person whose name has for any cause been omitted from the said lists may have his name included in said list and placed upon the tax lists in the hands of the collector by application to the said clerk at any time before the Saturday next preceding the first Monday of July, when the collector is required to make his final settlement with the county court. If the said application shall be made after the tax books have been delivered to the collector, the clerk shall certify the said supplemental assessment, which he is hereby authorized to make, to the collector, and shall charge to said collector the amount of tax and penalties so added. 'In addition to the sum assessed against any such applicant for poll tax, the clerk shall extend against him a penalty for failing to return his assessment to the assessor at the proper time, one dollar-twenty-five cents of which shall go to the clerk for his services, and seventy-five cents shall go into the fund for general county expenses; and if said application shall be made after the 10th of April the collector shall collect a penalty of twenty-five cents for a failure to pay the said poll tax at the time prescribed for making payment of taxes without penalty. In addition to the assessment of poll tax in such cases, it is hereby made the duty of said clerk to assess any property held by said applicant, and which, for any reason, has been omitted from the tax books." Crawford & Moses' Digest. [2] It will be observed from reading the above statute that it provides that after the tax books have been delivered by the clerk to the collector a person whose name has been omitted may have it included by the clerk, and the clerk "shall certify the said supplemental assessment" to the collector. The language of the complaint is that the persons specified as having voted illegally were those whose names were not on the tax books as originally delivered to the collector by the clerk, "or on any supplemental tax book made and delivered to said collector by said clerk." The language of the complaint does not follow the language of the statute, [1] Appellant contends that the language of his complaint in the paragraph set forth above is sufficient to show that there were enough illegal votes cast for appellee to change the result of the election, in that there were 1198 votes cast by persons who had not paid poll taxes legally assessed against them. Counsel rely on the decision of this court in the recent case of Cain v. Carl-Lee, 269 S. W. 57, that persons whose names were added to the poll tax list by the collector without having been certified by the county clerk were not legal voters, and they contend that the language of the complaint is sufficient to bring this case with-in that the statute refers, not to supplemental in the control of that decision. On the other hand it is contended by counsel for appellee that the language of the complaint is insufficient to show that the specified illegal voters were persons who had not been properly assessed and certified by the clerk. They contend that the statement in the complaint that said voters were persons "whose names were not on the original tax books as delivered to said collector by the clerk of the county court of Boone county, Ark., or on any sup tax book, but to the certificate of a supplemental assessment. We are of the opinion, however, that it is fairly inferable from the language of the complaint that it was meant to charge that the names of the persons specified in the complaint did not appear either on the original tax books or on the supplemental assessment list certified by the clerk, and that the payment and collection of the poll tax was illegal within the meaning of our decision in Cain v. Carl-Lee, supra. It 1 is an instance, we think, of an imperfect his property, both real and personal, during allegation, but it is a defect which should the balance of her life. At her death he dihave been reached by a motion to make more rected that the balance of his personal propdefinite and certain and not by demurrer. erty and all of his real estate should be diIt is a familiar rule that where the language vided in the manner designated in the will of a complaint is sufficient by fair inference between his collateral heirs and the collateral to constitute a cause of action, a demurrer heirs of his wife. The will was executed on should not be sustained, but the objecting the 26th day of June, 1919, and Isaac J. Luparty may interpose a motion to make more cas died in the Southern district of Logan definite and certain. Our conclusion is that county, Ark., on the 14th day of June, 1922. the court erred in sustaining the demurrer. On the 20th day of April, 1923, Mrs. R. A. E. [3] The complaint merely charges in gen- Lucas executed a deed of release to the heirs eral terms that appellant received a majority of Isaac J. Lucas, deceased, and the devisees of the legal votes, without specifying the named in his last will and testament, to all number of legal votes received by each can- the right, title, and interest devised to her didate, and the complaint is imperfect in this under said will. The lands are specifically respect, but the demurrer does not reach to described in the deed, and it was duly ac that point, and the sufficiency of the com- knowledged before a notary public on the plaint has not been challenged on that day of its execution. The deed was delivered ground. to her nephew, who was also, one of the executors under the will. The judgment sustaining the demurrer on the ground mentioned above is therefore reversed and the cause remanded, with directions to overrule the demurrer, and for further proceedings not inconsistent with this opinion. Mrs. Lucas filed her petition for dower in the probate court on the 17th day of April, 1923. Dower was allotted to her by the probate court, and the heirs of Isaac J. Lucas, deceased, duly prosecuted an appeal to the circuit court. There the case was heard upon the facts above stated. It was further shown that the lands of Isaac J. Lucas were rented to a nephew of Mrs. Lucas for $525 per year, and that he was in possession of said lands under his lease when Isaac J. Lucas died. He continued in possession of the lands after Lucas' death and was in possession of them at the time this suit was commenced. Mrs. Lucas intended to abide by the provisions of her husband's will, but changed her mind and undertook to claim dower under the statute because the heirs of her deceased husband were notifying the tenants not to pay rent on the lands to her, and were also attempt Appeal from Circuit Court, Logan County; ing to interfere with her possession of the Jas. Cochran, Judge. personal property. The circuit court found that the petitioner Petition in probate court by Mrs. R. A. E. had not made her renunciation of the will in Lucas against H. H. Lacy and others, heirs the manner provided by statute, and it was of Isaac J. Lucas, to have dower allotted to adjudged that her petition should be dismisspetitioner in deceased's estate. From judged. From the judgment rendered, Mrs. R. A, ment of circuit court, on appeal from probate E. Lucas has duly prosecuted an appeal to court, dismissing her petition, petitioner ap- this court. peals. Affirmed. Mrs. R. A. E. Lucas filed a petition in the probate court against the heirs of Isaac J. Lucas, deceased, to have dower allotted to her in his estate. Isaac J. Lucas and his wife, Mrs. R. A. E. Lucas, were married to each other in 1872 in what is now the Southern district of Logan county, Ark. Isaac J. Lucas died testate on the 14th day of June, 1922, leaving surviving him his widow and certain collateral heirs. He died possessed of both lands and personal property. By his will he directed that his wife should have the use and benefit of all Kincannon & Kincannon, of Booneville, for appellant. Evans & Evans, of Booneville, for appellees. HART, J. (after stating the facts as above). The widow filed her renunciation of the will within the time prescribed by statute, and the correctness of the judgment of the circuit court depends upon the construction to be given to the statute as applied to the facts of the case at bar. Section 3540 of Crawford & Moses' Digest reads as follows: (273 S.W.) "If a widow, for whom provision has been The effect of our holding is that Mrs. R. made by will, elect to be endowed of the lands A. E. Lucas, as widow of Isaac J. Lucas, deand personal property of which her husband ceased, is entitled to the use of all of her husdied seized, she shall convey, by deed of release band's property, both real and personal, durand quitclaim, to the heirs of such estate the land so to her devised and bequeathed, which ing her natural life in accordance with the deed shall be acknowledged or proved and re- principles of law laid down in Galloway v. corded as other deeds for real estate are re- Sewell, 162 Ark. 627, 258 S. W. 655. quired to be acknowledged or proved and recorded." The record shows that Isaac J. Lucas died on the 14th day of January, 1922, and that Mrs. Lucas, his widow, executed the deed of release on the 20th day of April, 1923. The grantees in the deed of release and quitclaim are the heirs of Isaac J. Lucas and the devisees under his last will and testament, who are specifically named as grantees. The statute provides that the widow shall convey by deed of release and quitclaim to In the the heirs of her husband's estate. case at bar, she not only conveyed to the heirs of her deceased husband, but also to such of her collateral heirs as were named as devisees in the will. This was not the renunciation of the will provided by statute. The object of the Legislature was to compel the widow to make her election to take her dower, instead of the provision made her under the will in lieu thereof, by some method which was plain and could not be misunderstood. The statute prescribes definitely the grantees in the deed, and it appears to have been enacted, not only for the purpose of fixing a definite manner of election, but to provide that the title of the real estate of the testator might be made a matter of record to the end that those dealing with the property might be advised regarding the title. The .will would be a matter of record when it was recorded, and in like manner, if the widow executes a deed of release and quitclaim as provided by the statute, it may be placed of record and thus a complete record of the title is provided for. It was not alone for the purpose of divesting the widow of any interest in the lands she might have under the will that the statute' required renunciation, but for the sake of the heirs of the deceased in order that they might be advised of her disposition in the matter. It will be presumed that the devisees under the will would be bound to receive notice in due course of the administration of the estate under the will. Be that as it may, the statute provides that the deed of release and quitclaim shall be executed to the heirs of the estate of her deceased husband, and this being the mode of renunciation pointed out by the statute, the courts have no power to adopt a substitute. This is the effect of our previous construction of the statute. Pumphry v. Pumphry, 52 Ark. 193, 12 S. W. 390, and Cooley v. North, Executor, 130 Ark. 350, 197 S. W. 577. The result of our views is that the judg ment of the circuit court must be affirmed. RICHARDSON v. STATE. (No. 90.) (Supreme Court of Arkansas. June 29, 1925.) 1. Bail 80-Surety not discharged nor state estopped from claiming forfeiture by clerk's erroneous entry of judgment that defendant was placed in sheriff's custody. Where defendant pleaded guilty, whereupon cause was continued, pronouncement of sentence suspended until subsequent term, and surety ordered to stand on present bond for defendant's appearance at such time, clerk's erroneous entry of judgment, that defendant was placed in sheriff's custody with orders to present him to court at such term for sentence, did not transfer him from custody of bail to that of officers, so as to discharge surety, nor estop state from claiming forfeiture of bond. 2. Courts 114-May enter nunc pro tunc judgment correcting record at subsequent term. It is within court's sound discretion to enter nunc pro tunc judgment to correct record at subsequent term, in criminal as well as civil cases. Appeal from Circuit Court, Columbia County; L. S. Britt, Judge. Proceeding by the State of Arkansas against T. V. Richardson to forfeit bail bond. From judgment forfeiting bond, defendant appeals. Affirmed. Joe Joiner, of Magnolia, for appellant. HUMPHREYS, J. Leon Richardson, the son of appellant, was indicted at the February term of the Columbia county circuit court for the crime of having a still and making mash. He was subsequently arrested and gave a bond conditioned for his appearance in said court on the 7th day of February, 1923; and, if convicted, to render himself in execution thereof; and, failing to perform either of said conditions, to pay the state of Arkansas the sum of $500. Appellant signed the bond as surety. On the 19th day of February, 1923, the same being a day of the February, 1923, term of said court, Leon Richardson appeared in court and entered a plea of guilty to the crime, whereupon the cause was continued, and the pronouncement of sentence was suspended until the August, 1923, term of said court; it being ordered For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes this rested solely in the court. The entry of an erroneous order by the clerk could not estop the state from claiming a forfeiture of the bond and enforcing the penalty there a court to enter nunc pro tunc judgments to cause the record to speak the truth at subsequent terms of court in criminal as well as in civil cases. Goddard v. State, 78 Ark. 226, 95 S. W. 476. No error appearing, the judgment is affirmed. BLYTHEVILLE COURIER v. McCALL. (No. 87.) that Leon Richardson remain and stand on his present bail bond for his appearance at that time. Through a misprision of the clerk, a purported judgment was entered of record to the effect that Leon Richardson ap-in against the sureties. peared in court at the February, 1923, term [2] 2. It is within the sound discretion of thereof, pleaded guilty, was placed in the custody of the sheriff, and the sheriff was ordered to present him to the court at the August term for sentence. As a matter of fact, Leon Richardson was not delivered to the sheriff nor ordered into the custody of the sheriff by the court. He did not appear at the August, 1923, term of court, and a forfeiture was declared upon the bond. A summons was issued upon the forfeiture against appellant, returnable at the next term of court. In response to the summons, appellant filed an answer interposing as a defense the judgment which had been erroneously entered of record by the clerk. The prosecuting attorney then moved for and obtained a nunc pro tunc judgment, correctly reflecting the order which was actually made by the court, and used same as a basis upon which to procure judgment against appellant upon the bond. Appellant has prosecuted an appeal to this court from the judgment obtained against him on the bond, claiming that it should be reversed upon the alleged grounds: First, that the entry of the judgment by the clerk effected his discharge upon the bond; and, second, that the court was without power to enter the nunc pro tunc order correcting the judgment which the clerk erroneously entered. [1] 1. Appellant relies upon the case of Ford v. State, 100 Ark. 515, 140 S. W. 734, in support of his first contention for a reversal of the judgment. In that case, the defendant entered a plea of guilty, and at the same term of court was adjudged to pay a fine of $100. The execution of the judgment was suspended until the next term of court. The effect of this proceeding was to take the defendant out of the custody of the bail and place him in the custody of the prop er officers of the law. In the instant case, no judgment was rendered against Leon Richardson. He entered a plea of guilty, and by agreement the cause was continued until the August term of court for judgment and sentence. Had he appeared at the August term, he might have withdrawn his plea of guilty by the permission of the court. Joiner v. State, 94 Ark. 198, 126 S. W. 723. No final judgment was rendered against him when he entered his plea of guilty as in the Ford Case. There was not only a continuance of the cause, but he was held upon his bond to the August term of court. The entry of an erroneous judgment by the clerk could not have the effect of transferring Leon Richardson from the custody of the bail to the custody of the officers. The authority to do (Supreme Court of Arkansas. June 29, 1925.) 1. Contracts 285(1)—Parties may provide in contract as to manner of settling difference thereunder. Parties to a contract may provide as to how differences thereunder are to be settled, and rule promulgated by newspaper holding newspaper subscription contest, that decision of disputes by management should be final, formed part of the contract. 2. Contracts 284(4)-Decision of arbitrator must be upon substantial question and made fairly, impartially, and in good faith. Under contract providing for submission of disputes to arbitrator, decision of arbitrator or referee must be upon substantial point of difference, and made fairly, impartially, and in good faith. 3. Contracts 284(4)—Arbitrator's decision, made in good faith, that "brother-in-law" was not "near relative" within meaning of subscription contest rules, final. Where rules of newspaper subscription contest barred "near relative" of paper's employees and provided that questions arising under contest were to be finally and absolutely decided by management, held, that whether "brother-in-law" was "near relative" presented question of interpretation for management, and its decision that contestant was not barred was final when not made corruptly or in bad faith. Appeal from Circuit Court, Mississippi County; W. W. Bandy, Judge. Action by Virginia McCall against the Blytheville Courier. From a judgment for plaintiff, defendant appeals. Reversed, and case dismissed. Little, Buck & Lasley and W. D. Gravette, all of Blytheville, for appellant. Nelson & Crawford, of Blytheville, for appellee. SMITH, J. In the fall of 1922, the Blytheville Courier, a newspaper published in the city of Blytheville, put on a campaign to increase its subscription list, and as an aid thereto offered prizes to those securing sub (273 S.W.) scriptions. The prize offered to the one se-law to be that Mrs. Brooks was ineligible as a contestant and to find for the plaintiff uncuring the largest number of subscribers was an automobile of the value of $1,975. The less the jury found the fact to be that plaintiff had, under the circumstances of the case, second prize was $300 in cash. retained possession of the check beyond a reasonable time for its return. There was a verdict and judgment for the plaintiff, from which the defendant has appealed. When the campaign was put on, rules and regulations governing it were promulgated and published in the paper. There were twenty-one of these rules, the third of which reads as follows: "3. No employee or near relative of any employee of the Blytheville Courier is eligible to enter this distribution. The Blytheville Courier reserves the right to reject any nomination." The twenty-first rule provided that"The Blytheville Courier guarantees fair and impartial treatment to all candidates, but should any question arise, the decision of the management will be absolute and final." We think the court was in error in declar ing Mrs. Brooks ineligible. It is an admitted fact that her brother-in-law was employed by the newspaper putting on the contest, but there is at least some question, some room for reasonable and honest difference of opinion, as to whether Mrs. Brooks was a "near rela tive" of the employee within the meaning of the rules governing the contest. There were twenty-one of these rules, and it is obvious that it was contemplated that differences of opinion might arise in their interpretation, and the last-or the twenty-first-rule was intended to take care of that situation. It provided that should any question arise, the decision of the manager should be absolute and final. [1] These rules formed the contract under which the contest was held, and the rule making the manager of the contest the referee on all questions growing out of the contest is a part of the contract. The parties to a contract may provide in the contract how differences arising under it may be ad their validity has been uniformly upheld. Under the provisions of the rules promulgated, the campaign was to extend over a period of six weeks, and was to close Saturday night, November 9, 1922. The two principal contestants were Virginia McCall, a girl 11 A few years old, and Mrs. J. Mel Brooks. days before the campaign closed, Dr. McCall, the father of the girl, discovered that à boy who was employed in the mechanical department of the paper was a brother-in-law of Mrs. Brooks, and he protested against Mrs. Brooks' candidacy on the ground that she was ineligible under the rules of the contest.justed. Such provisions are not unusual, and The contest manager decided that Mrs. Brooks was not ineligible, and the contest proceeded to its close. On Saturday night, when the votes were to be finally counted, Dr. McCall appeared before the judges who had been selected to count the votes, and renewed his protest against Mrs. Brooks' eligibility. The manager of the contest advised the judges that they had no authority to decide this question; that it had already been settled. The judges then proceeded with the count, and announced the result of the contest to be that Mrs. Brooks had received the highest number of votes and was entitled to the automobile, and that Virginia McCall had received the second highest number of votes and was the winner of the $300. The manager of the contest then delivered the automobile to Mrs. Brooks, and mailed a check for $300 to the young lady. Dr. McCall renewed his protest and declined to permit his daughter to cash the check, but mailed it to his attorney. The wife of the attorney was very ill at the time and required the constant care and attention of her husband, and after a few months' illness she died. When The management of the contest for appelthe attorney was able to return to his office lant was conducted by a Mr. Morrison, who and give attention to his professional busi- was a representative of "The Portlowe Plan," ness, he tendered a return of the check and a concern engaged in putting on and conductdemanded the surrender of the automobile, ing campaigns of this character for various and upon this demand being refused brought newspapers to increase their circulation. this suit to recover the value of the automo- There is no intimation that Morrison decided bile. corruptly or arbitrarily, or that he did not At the trial below the court declared the exercise his honest and best judgment in the [2] Of course, the point of difference to be decided by the referee or the arbitrator must be substantial and not capricious. The arbitrator must act fairly and impartially. He must exercise an honest and intelligent judgment, and if he fails to do this, or if he makes such gross mistakes as necessarily imply bad faith, his decision will not be binding, and it would then become the province of the courts, in appropriate litigation, to decide the question at issue. [3] Respective counsel have cited numerous authorities as to the meaning of the phrase We do not review them "near relative." here, because the phrase is sufficiently ambiguous to furnish a reasonable basis for a difference of opinion as to its meaning. 273 S.W.-24 |