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Judge Jacob Trieber moved that the president appoint a committee of seven, four of whom should be members of the incoming Legislature, to present to the Legislature, and urge the enaction of the acts recommended in the report.
This resolution was adopted.
Note.—The president has appointed this committee, which was later made a regular standing committee. (See list of committees, page 7.)
The association adjourned until 10 o'clock next day.
MORNING SESSION_SECOND DAY.
Mr. T. D. Crawford and Mr. Morris M. Cohn submitted the following report for the Committee on Law and Reform:
LAW AND LAW REFORM.
To the President and Members of the Association:
We recommend that the Legislature be requested to pass an act substantially as follows:
That the chancery courts of this State shall be authorized to hear motions or causes, and make orders or decrees, at any time, upon proper notice, without reference to such action occuring in term time or not; and that orders and decrees so entered may be appealed from to the Supreme Court, in like manner as appeals are now allowed from orders and decrees of chancery courts, from the date of rendering said orders or decrees.
It was recently held by our Supreme Court that a bill of exceptions as certified by bystanders, in accordance with section 6226 of Kirby's Digest, in the absence of controverting affidavits, must be taken as representing the true state of the record, though it is in conflict with the bill of exceptions which was signed by the trial judge. (Boone v. Holder, 87 Ark. 461). And, as the section referred to does not require the party filing such bill of exceptions signed by bystanders, to notify the judge or opposing attorney, of such filing, it is possible for imposition to be practiced, by enabling an attorney to file a fraudulent bill of exceptions, with the aid of hangers-on at court, or persons selected for this very purpose. And in this wise the controverting affidavits which may be filed to sustain the action of the trial judge may never be filed. To correct this fault in the present law, we recommend that section 6226 of Kirby's Digest be amended by the next General Assembly so as to read as follows:
"If the party excepting is not satisfied with the correction, upon his procuring the signatures of two bystanders attesting the truth of his exception as by him prepared, the same shall be filed as part of the record after at least five days notice to the attorney on the opposite side, in writing; but the truth of the exceptions may be controverted and maintained by affidavits, not to exceed five in number on each side, to be filed with the clerk within ten days after such notice, which affidavits shall be part of the record, and shall be considered by the appellate court.”
The part that is new is in italics.
The common law disabilities of married women have been removed by our enabling acts. It is the general rule that where the reason of the law ceases the law ceases. But in view of the peculiar phraseology of Kirby's Digest, section 5056, it has been held that the statutes of limitations relating to suits to recover land (Kirby's Digest, section 5056, 5057) do not run against married women during coverture. We think that this anomaly should be abolished. We therefore recommend that the provisos in Kirby's Digest, section 5056, be repealed. So far as infants and insane persons are concerned, their rights are sufficiently protected by section 5075, Id., which reads as follows:
“Sec. 5075: If any person entitled to bring any action, under any law of this State, be, at the time of the accrual of the cause of action, under twenty-one years of age, or insane or imprisoned beyond the limits of the State, such person shall be at liberty to bring such action within three years next after full age, or such disability may be removed.”
Section 5056, as amended as above suggested, would read as follows:
"Sec. 5056: No person or persons, or their heirs, shall have, sue or maintain any action or suit, either in law or equity, for any lands, tenements or hereditaments but within seven years next after his, her or their rights to commence, have or maintain such suit shall have come, fallen of accrued; and all suits, either in law or equity, for the recovery of any lands, tenements or hereditaments, shall be had and sued within seven years next after title or cause of action accrued, and no time after said seven years shall have passed."
In order to avoid any question as to the effect of the repeal of the saving clausc as to the existing rights of married women, we would suggest that the act be made operative six months after its passage.
We suggest, in view of the recent case, holding that mortgages and deeds of trust are barred by the statute of nonclaims (Mueller v. Light, 19 Ark. Law Rep. 500), that Kirby's Digest, Sec. 5399, be amended so as to provide as follows:
“In suits to foreclose or enforce mortgages or deeds of trust, it shall be sufficient defense that they have not been brought within the period of limitation prescribed by law for a suit on a debt or liability for the security of which they were given. Provided, that such period shall not be shortened by the statute of nonclaims. Provided, further, when any payment is made on any such existing indebtedness, before the same is barred by the statute of limitation, such payment shall not operate to revive said debt or to extend the operations of the statute of limitation with reference thereto, so far as the same affects the rights of third parties, unless the mortgagee, trustee or beneficiary shall, prior to the expiration of the period of the statute of limitation, indorse a memorandum of such payment with date thereof on the margin of the record where such instrument is recorded, which indorsement shall be attested and dated by the clerk.”
MORRIS M. Cohn.
T. D. CRAWFORD. In this connection, a letter addressed to the secretary from Mr. J. E. Williams, was read.
May 31, 1910. Roscoe R. Lynn, Esq., Secretary Arkansas Bar Association, Little Rock,
Dear Sir: On account of illness, and the necessity of leaving for my health immediately, I will not be at the Bar Association, but would like to call the attention of the Committee on Law and Law Reform to three matters about which some legislation should be recommended.
First, with regard to the statute of limitations, and the exemption of married women from its operation. This class being no longer under any disability, there is no reason for their continued exemption. This point has been emphasized by a very recent decision of the court construing the statute making the payment of taxes for seven years, operate as a statutory bar, when done with color of title, exempting married women from its operation. The decision is undoubtedly correct, but only points out the necessity for the change here indicated.
Second, some twenty years or more ago, the Bar Association of the State succeeded in getting through the Legislature an act making the statute a bar against mortgages and deeds of trust, the same as the instrument that they were given to secure, and to prevent secret liens acquired against third innocent parties and that any payments on the instruments which would serve to keep alive the original should be endorsed on the records. The Supreme Court in a recent decision has held that this does not apply to instruments, the time of which has been extended by agreements between the parties, and not by payments. The effect of this is to open a loophole in the statute and to largely nullify the beneficent effect intended. It should now, in my judgment, be so amended as to stop this also.
Third, the recent decision of the court in Mueller v. Light, Ark. Law Rep. Vol. XIX, page 500, which in effect substitutes the statute of nonclaims for the statute of limitations basced on unmatured debts, I think should be carefully examined with a view to changing the law.
If you will refer these matters to the Committee on Law and Law Reforms, I think they will do the public a service by looking into them. I offer my apologies for not quoting this decision more in extenso, but teebleness must be my excuse.
Yours very truly
J. E. WILLIAMS.
Upon motion of Judge Jacob Trieber, the recommendations in the report were taken up separately.
After considerable discussion, the first recommendation in reference to chancery courts was defeated.
The second recommendation was adopted.
The third recommendation, after considerable discussion, was rejected.
The fourth recommendation was adopted.
Judge Gus Fulk moved that the recommendations contained in Mr. Harry Trieber's paper be referred to the special legislative committee, heretofore created.
Upon motion of Mr. W. B. Smith, the special legislative committee was changed to a regular standing committee, thereby amending the constitution.
Mr. Harry P. Warner of Fort Smith was introduced by the president and read a paper on “Some Rules of the Common Law." (See appendix, page 99.)
Mr. D. E. Bradshaw introduced the following resolution:
Be It. Resolved, that the sum of one hundred dollars be, and the same is hereby appropriated of the funds of the Association to purchase and suitably inscribe a Loving Cup to be presented to the Hon. Burrill B. Battle upon his retirement as a member of the Supreme Court of Arkansas.
John W. BLACKWOOD.
The motion was adopted, and the matter of purchasing the cup, and the presentation of the same, was referred to the Executive Committee.
Mr. J. F. Loughborough moved that the association extend a vote of thanks to President Norton for his address, and that the secretary be instructed to have the address printed in at least one of the leading newspapers, and that 5,000 copies be printed in pamphlet form, to be distributed among the members.
This resolution was unanimously adopted. The president expressed his thanks.
Mr. W. B. Smith read a proposed resolution sent him by Mr. W. O. Hart of New Orleans, requesting the Association to endorse New Orleans as the proper place for holding the Panama World's Fair. It was suggested that it would be unadvisable for the Association to take such action as a body, and the secretary was instructed to advise Mr. Holt accordingly.
Mr. W. 0. Hart was expected to be present to read a paper on “Uniformity of Legislation.” He was unable to be present, but sent his paper. Upon motion the secretary was directed to print the paper in the minutes of the meeting, and that the same be referred to the Committee on Uniform State Laws. (See appendix, page 120.) The secretary was instructed to write Mr. Hart and thank him for his contribution to the program.
The president read telegrams from Judge Joseph M. Hill, Judge P. C. Dooley and Mr. John M. Moore, who were in St. Louis, expressing their regrets at being unable to be present, and hoping for a pleasant and profitable meeting.