(248 S.W.) Appeal from Circuit Court, Pulaski County; A. F. House, Judge. plaint, the Missouri Pacific Railroad Company purchased the railroad, which was the alleged cause of the injury to the plaintiff, some time after the injury occurred. Hence Continental Casualty Company. From a the plaintiff's cause of action had become vested before the purchase was made of the railroad by the Missouri Pacific Railroad Company. [2] The complaint does not contain any allegation that the plaintiff had recovered judgment against the company operating the road at the time he received his injury, and that on this account a judgment against the operating railroad company would bind its property in the hands of another company purchasing it. In the absence of an allegation in the complaint that the plaintiff had recovered judgment against the company or the receiver thereof operating the railroad at the time the plaintiff received his injury, the Missouri Pacific Railroad Company, which subsequently obtained possession of the road by purchase under a decree of a chancery court, is not liable and no lien can be fixed against its property. Williams v. Mo. Pac. Rd. Co., 134 Ark. 366, 203 S. W. 1038, and C., R. I. & P. Ry. Co. v. McBride, 136 Ark. 193, 206 S. W. 149. The complaint does not allege that any suit was filed against the St. Louis, Iron Mountain & Southern Railway Company or against the receiver of such railway company and judgment obtained thereunder. The complaint does show that the injury was received by the plaintiff while the St. Louis, Iron Mountain & Southern Railway Company, or its receiver, was operating the road. Therefore the court properly sustained a demurrer to the amended complaint, and the judgment must be affirmed. CONTINENTAL CASUALTY CO. v. HAW KINS. (No. 196.) Action by William Hawkins against the judgment for more than defendant admitted as due on a policy of insurance, défendant appeals. Reversed, and judgment entered for amount tendered as due by defendant. Roscoe R. Lynn, of Little Rock, for appellant. G. Denison Cherry, of Little Rock, for appellee. HUMPHREYS, J. Appellee instituted suit against appellant in the Third division of the Pulaski circuit court, upon a personal accident policy, to recover $500 for the accidental loss of an eye. The issue joined by the pleadings was whether appellee was entitled to $500 or $150. This was dependent on whether appellee's change in occupation from an "ice checker, not handling," to that of a "laborer in foundry, not handling hot metal," changed his classification from C to XD, within the meaning of the standard pro rata clause contained in the policy, which clause is as follows: "This policy includes the indorsements and attached papers, if any, and contains the entire contract of insurance except as it may be modified by the company's classification of risks and premium rates in the event that the insured is injured or contracts sickness after having changed his occupation to one classified by the company as more hazardous than that stated in the policy, or while he is doing an act or thing cept ordinary duties about his residence or pertaining to any occupation so classified, exwhile engaged in recreations in which event the company will pay only such portion of the indemnities provided in the policy as the premium paid would have purchased at the rate but within the limits so fixed by the company for such more hazardous occupation." The cause proceeded to a hearing upon the pleadings and evidence, at the conclusion of which appellant requested the court to instruct the jury to return a verdict for $150, which it had tendered into court. The court refused to give the instruction over the objection and exception of appellant, and over the objection and exception of appellant sent the case to the jury to ascertain whether the em (Supreme Court of Arkansas. Feb. 26, 1923. Rehearing Denied March 26, 1923.) Insurance 531-Change of occupation by insured held to require policy to be reduced. In an action on an insurance policy, where it was undisputed that the insurance policy provided that the insurance company might deter-ployment at the foundry was more hazardous mine the relative danger between occupations followed by the insured, on an injury happening to the insured, an ice checker, after he had changed his occupation to working in a foundry, which was classified as more hazardous than his former occupation, a pro rata clause in the policy to the effect that the amount pay able should be only amount of insurance the premium would have brought if he had been insured as a foundry worker applied, and the court should have directed a verdict for the amount so determined. than at the ice company, and, if not, to return a verdict for appellee. The court, over the objection and exception of appellant, had, during the course of the trial admitted evidence tending to show that the employment at the foundry was less dangerous than that at the ice company. The jury returned a verdict in favor of appellee for $500, and a judgment was rendered in accordance therewith, from which is this appeal. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the crops, that defendant failed to plant one of the crops provided for, and to divide others, and alleging damages, was not demurrable for failure to state facts sufficient to constitute a cause of action. 2. Pleading 193(6), 362(2), 369(1)—Joinder of action sounding in tort with action for unlawful detainer not ground for demurrer. A complaint to recover possession of leased premises and for damages for wounding plaintiff was not demurrable because joining an action for unlawful detainer with one sounding in tort, since this error should have been met by a motion to strike the action improperly joined, or to require an election between the actions pleaded. Appellant's insistence for reversal is that the court erred in not construing the contract, under the undisputed evidence, to mean that the classification of appellee had been changed from C to XD by changing his occupation to one classified by the insurer as more hazardous than the one stated in the policy. The undisputed facts show that appellee stated in his application, which was copied into and made a part of the policy, that he was employed by the ice company in the capacity of "ice checker, not handling"; also that the rate and classification manual, which became a part of the policy by express terms therein, shows that a laborer in a foundry not handling hot metal was rated and classified as class XD; also that appellee changed his occupation from that specified and classified in the policy as class C to that of a laborer in a foundry, Action by W. N. Martin against J. D. Stratnot handling hot metal; also that appellant ton and another. From judgment for defendclassified the occupation to which appellee ants, plaintiff appeals. Reversed and rechanged as more hazardous than his occupa-manded, with directions. tion with the ice company. The contract entered into between appellee and appellant provided that appellant might determine the relative danger between occu pations. This being true, and appellee having changed his occupation from one specified and classified in the policy to one classified by appellant as more hazardous than the one stated in the policy, the pro rata clause in the policy is applicable, and appellee was only entitled to recover the benefits which would have been provided in his policy if he had paid the same amount of premium and had been engaged in the occupation of laborer in foundry, not handling hot metal. Under the undisputed facts and terms of the policy appellee's claim must be prorated from class C to class XD, entitling him to a recovery of $150. The trial court should have instructed a verdict for that amount. On account of the error indicated, the judg ment is reversed, and judgment is directed to be entered here in accordance with the tender heretofore made. Appeal from Circuit Court, White County; J. M. Jackson, Judge. J. N. Rachels, of Searcy, for appellant. HUMPHREYS, J. [1] Growing out of an alleged breach of contract between appellant, as landlord, and appellee, J. D. Stratton, as tenant, and an alleged unlawful attack upon appellant by appellee, appellant brought suit against appellee in the White county circuit court to recover possession of the land rented to him, damages for breach thereof, and rents, and for damages to his person inflicted by a gunshot fired by appellee. It was alleged, in substance, in the complaint: First, that appellant rented 160 acres of land in said county to said appellee under written contract for three years, beginning January 1, contract provided for J. D. Stratton to set 1919, and ending December 31, 1922; that the out and cultivate 8 acres in strawberries and 10 acres in cotton; that he should pay ap pellant one-half the net proceeds of the berry crop in 1920 and 1921 in part payment of rent, and, in further payment thereof, to deliver appellant one-half of the lint cotton and seed after paying for ginning same; that appellee failed to plant any cotton to appellant's damage in the sum of $200, and failed to divide the net proceeds of the berry crop in 1920, to his damage in the sum of $250; second, that appellee came upon appellant's premises and unlawfully, maliciously, and feloniously shot him, to his injury in the sum I. Landlord and tenant 291 (8)-Complaint of $10,000. It was further alleged that said in action to recover possession of land rent-appellee's codefendant was brought upon the ed and for damages held not demurrable. MARTIN v. STRATTON et al. (Supreme Court of Arkansas. (No. 227.) March 12, 1923.) Under Crawford & Moses' Dig. § 4838, providing that a failure to pay rent when due after three days' written notice to quit shall constitute an unlawful detainer, justifying an action for possession of the premises, which is true regardless of whether the lease makes a failure to pay rent a ground of forfeiture, a complaint alleging a renting to defendant for a share of rented land to unlawfully assist him in holding the possession thereof, and was a trespasser. Appellees filed a demurrer to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action against them. The court sustained the demurrer, and dismissed appellant's complaint. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S.W.) over his objection nad exception, from which and W. T. Hammock, Asst. Attys. Gen., for is this appeal. the State. WOOD, J. Appellant was convicted of the crime of selling intoxicating liquor, and sentenced by the judgment of the court to one year's imprisonment in the state penitentiary. From that judgment is this appeal. [1] Appellant contends, first, that there was no testimony to sustain the verdict. Clint Hines, a witness for the state, testified that he was sitting at his house when appellant came by and asked him if he wanted anything to drink. Appellant got out of the car and took therefrom a half gallon of whisky and put it out on the sidewalk. Wit The only question presented by the appeal for determination is whether the complaint states a cause of action. It is provided by statute in this state that a failure to pay rent when due, after three days' written notice to quit, shall constitute an unlawful detainer, justifying an action by the landowner against the tenant for the possession of the premises. Section 4838, Crawford & Moses' Digest. This is true regardless of whether the rental contract or lease makes a failure to pay rent a ground of forfeiture. Parker v. Geary, 57 Ark. 301, 21 S. W. 472. The facts alleged in the complaint meet all the statutory requirements of an action for un-ness cautioned appellant that somebody lawful detainer. The court erred, therefore, in sustaining the demurrer. [2] An attempt was made to join an action sounding in tort with an action for unlawful detainer, but this was not ground for demurrer. This error should have been met by a motion to strike the action improperly joined, or to require appellant to elect as between the actions pleaded. Jett v. Theo Maxfield Co., 80 Ark. 167, 96 S. W. 143. For the error indicated, the judgment is reversed, and the cause is remanded with directions to overrule the demurrer to the complaint. 1153(3)-Discretion of trial court in permitting testimony by state after defendant rested, not controlled unless abuse shown. The discretion of the trial court in a criminal case in permitting the state to adduce testimony after the defendant has rested, will not be controlled unless it has abused such discretion. might see him. Appellant then put the whisky in the barn. Witness told appellant that he did not want all of the whisky, but just wanted a drink. Appellant left, and said he would be back, and did come back in 20 or 25 minutes. When appellant brought the whisky he stated it was $3 a pint, and witness told appellant that he wanted only a drink. Appellant told witness to take what he wanted out of it and he would be back for the rest. Witness was then asked, "When were you to pay him?" Witness replied, "I suppose when he would come back, but he never came back." Appellant told witness that he could pay for the whisky later. Witness stated that he was positive that appellant was the man who sold witness the whisky. Witness was to pay appellant for what he used. Witness let Fitzgerald have the whisky so purchased from appellant. Fitzgerald testified that he was the deputy constable in Ft. Smith, and received liquor from Clint Hines and took it to Dr. Vaught and had it analyzed. Dr. Vaught testified that he was a chemist and bacteriologist for the city of Ft. Smith. Officer Fitzgerald brought him some whisky to analyze. Witness analyzed the same, and the sample was corn whisky, and contained 43.56 per cent. alcohol by volume, and also contained nearly four grams of lye per 100 cubic centimeters. The bottle containing the sample was labeled, "Sold by W. C. Smith to Clint Hines." The above testimony was legally sufficient to sustain the verdict. [2] The appellant contends that the court erred in permitting the state, after the appellant had introduced a portion of his testimony in chief, to put on direct testimony. "It is within the trial court's discretion to permit testimony to be adduced by the state Circuit Court, Sebastian in a criminal case after defendant has rested." County; John Brizzolara, Judge. Appeal from W. C. Smith was convicted of selling intoxicating liquors, and he appeals. Affirmed. I. S. Simmons, of Ft. Smith, for appellant. J. S. Utley, Atty. Gen., and Elbert Godwin Walker v. State, 100 Ark. 180, 139 S. W. 1139. [3] The trial court's discretion in this re spect will not be controlled unless it has abused such discretion. The record does not show any abuse of discretion. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes The appellant contends that the court erred in instructing the jury in regard to the testimony of the defendant, and also erred in its instruction concerning the credibility of witnesses and the weight that should be given their testimony. It could serve no useful purpose to set out the instructions and discuss the alleged error in the giving of same. The instructions declared the law substantially in forms that have been repeatedly approved by this court. There was no error in giving them. The judgment is correct, and it is therefore affirmed. also testified that he purchased $400 in War Savings Stamps and paid for same, but that only the amount of $300 was delivered to him. He exhibited with his testimony a receipt signed by an official of the bank showing that an envelope with contents had been delivered to the bank for safe-keeping, but the receipt is blank as to the amount of the contents. He testified that these purchases were made in the spring of 1918, but that he made no demand for delivery until January, 1920, the bond for $500 having been delivered to him on December 26, 1918. Appellee introduced witnesses connected with the bank, who testified that from the records appellant did not make any purchases of bonds from the bank except the WEAVER v. FIRST NAT, BANK OF JONES- $500 bond, which was delivered as shown by BORO. (No. 215.) (Supreme Court of Arkansas. 1923.) March 12, the records. The testimony of these witnesses also showed that the War Savings Stamps were handled as cash, and that there were no payments made by appellant for undelivered Money received 18(3)-Evidence held to stamps. There was a conflict in the testisustain finding that plaintiff had not pur-mony, but we must treat it as settled by the chased bonds and War Savings Stamps as verdict of the jury. alleged. In a suit against a bank to recover the price of Liberty Bonds and War Savings Stamps, alleged to have been purchased but not delivered, defendant denying that the bonds and stamps were purchased or paid for, evidence held to sustain a verdict for defendant. Appeal from Circuit Court, Craighead County; W. W. Bandy, Judge. Action by J. A. Weaver against the First The question of the weight and sufficiency of the evidence was for the jury, and we are not at liberty to set aside a verdict, where there has been testimony legally sufficient to support it. Judgment affirmed. National Bank of Jonesboro. Judgment for BROWN & HACKNEY, Inc., v. STEPHENdefendant, and plaintiff appeals. Affirmed. E. L. Westbrooke, of Jonesboro, for appellant. Gautney & Dudley, of Jonesboro, for appellee. McCULLOCH, C. J. Appellant sued appellee in the court below to recover $300, the price alleged to have been paid for Liberty Bonds which were purchased but not delivered, and for $100, the price of War Savings Stamps, alleged to have been purchased but not delivered. Appellee denied that the bonds and stamps in question were purchased by appellant or paid for. The issue was tried before a jury, and the trial resulted in a verdict in favor of appellee. It is undisputed that appellant purchased a $500 Liberty Bond from appellee in the year 1918, that he paid the price for same, and that appellee delivered the bond to him on December 26, 1918. Appellant testified in addition to this transaction, and prior to the purchase of the $500 bond, he purchased $300 in Liberty Bonds from appellee-one bond of the second issue for $100, and one bond of the third issue in the sum of $200. He testified that he paid for these bonds, but that they were never delivered to him. He SON. (No. 219.) (Supreme Court of Arkansas. March 12, 1923.) 1. Certiorari 5(1), 6, 28(2)-Will not lie where there has been right of appeal, unless right lost without fault of petitioner, or unless court acted without or in excess of its Jurisdiction. A writ of certiorari cannot be used in any case where there has been a right of appeal unless the opportunity of appealing has been lost without the fault of the petitioner or unless the court in the proceedings sought reviewed has acted without, or in excess of, its jurisdiction. 2. Appearance 18-Special appearance and motion of defendant to quash service of summons gave court jurisdiction to determine such issue. Where defendant entered a special appearance and moved to quash the service of summons on him, the trial court had jurisdiction to determine the issue. Certiorari to Circuit Court, Chicot County; Turner Butler, Judge. Petition by Brown & Hackney, Incorporated, against John C. Stephenson, for certiorari to review the proceedings in an action For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (248 S.W.) resulting in a judgment against petitioner an action as this in this court will deny to the for respondent. Judgment affirmed. Hughes & Hughes, of Memphis, Tenn., for appellant. Streett, Burnside & Streett, of Lake Village, for appellee. WOOD, J. The petitioner, Brown & Hackney, Incorporated, was sued by the respondent, John C. Stephenson, in the circuit court of Chicot county, upon the following complaint: "Comes the plaintiff, John C. Stephenson, and for cause of action against the defendant, Brown & Hackney, Incorporated, states: That the defendant, Brown & Hackney, Incorporated, is and was on the 7th day of March, 1921, a foreign corporation and incorporated under the laws of the state of Tennessee and authorized to do business in the state of Arkansas, and is and was on said date engaged in the business of buying logs and manufacturing same into lumber, and has a designated agent in said state upon whom service of process may be had; that on said 7th day of March, 1921, at Kilbourne, La., the defendant purchased of and from the plaintiff 266 logs, amounting to 61,525 feet, at an agreed price of $1,540.62; that said logs were bought by defendant f. o. b. cars Kilbourne, in said state, and pursuant to said contract the plaintiff immediately delivered said logs to the defendant at said place; that said logs were accepted by said defendant; that same were loaded on cars and consigned to defendant at Little Rock, Ark., where they were refused; that defendant refused, and still refuses, to pay plaintiff therefor. "Wherefore, plaintiff prays judgment against the defendant, Brown & Hackney, Incorporated, for the sum of $1,540.62, interest, costs, and all other proper relief." Summons was issued in said cause for the defendant therein, the petitioner here, and on the 16th day of January, 1922, was served on R. B. Hackney, the agent for service designated by said Brown & Hackney, Incorporated, in the state of Arkansas. the March, 1922, term of said court the defendant appeared specially for the purpose of questioning the jurisdiction of the court, and for that purpose filed its motion to quash the service, as follows: At defendant the equal protection of the laws and due process of law afforded to the defendant by the Constitution of the United States. "Wherefore defendant asks that this cause of action be dismissed as to it, and that it be no longer threatened or imperiled with such unlawful process." On the hearing of the motion the same was overruled, and, the defendant declining to further plead, judgment was on March 15, 1922, rendered by said court in favor of the plaintiff in said cause against the said defendant for the sum of $1,634.85. On July 18, 1922, Brown & Hackney, Incorporated, filed in this court the petition now before the court for a writ of certiorari to bring before this court the record of the proceedings had in the cause between the parties in the circuit court of Chicot county for review and for the purpose of determining whether the judgment of that court was rendered without jurisdiction. The petition sets out the facts disclosed by the foregoing complaint and motion to quash, and alleges that the circuit court of Chicot county was without jurisdiction of the person of the defendant therein or of the cause of action upon which the judgment was there rendered; that the enforcement of said judgment would deprive this petitioner of its property without due process of law in contravention of the Fourteenth Amendment to the federal Constitution. It further avers that the petitioner here is without remedy to obtain a review of the proceedings of said circuit court other than by writ of certiorari. We are met at the threshold with the issue as to whether or not certiorari will lie to correct the ruling of the circuit court in refusing to quash the service had in that case upon Brown & Hackney, Incorporated contends that the circuit court was without (hereafter called petitioner). The petitioner and also had no jurisdiction of the cause jurisdiction of the person of the petitioner, of action upon which the judgment of the circuit court was rendered. An examination of the allegations of the complaint filed by Stephenson (hereafter "Comes the defendant, Brown & Hackney, called respondent) against the petitioner in Incorporated, and, not entering its appearance, the circuit court will discover that the combut for the purpose of quashing the service in plaint states a cause of action which is this case alone, says: That plaintiff is a citizen and resident of the state of Louisiana; transitory in character. The circuit court that defendant is a corporation organized under of Chicot county, therefore, had jurisdiction the laws of the state of Tennessee, and domi- of the subject-matter of the action, and the ciled in Memphis, Tenn.; that the plaintiff only issue here is whether or not it had claims that the alleged contract, upon which jurisdiction of the petitioner. The circuit this action was founded, was entered into in court did not exceed its jurisdiction in dethe state of Louisiana; that the defendant termining the issue as to whether or not is not incorporated in the state of Arkansas service of summons could be had upon the but is doing business in the state of Arkansas petitioner in Arkansas upon the cause of as a foreign corporation only; that the de-action stated in the complaint. It was pe fendant is not subject to answer to such an action as this in the courts of the state of culiarly within the jurisdiction of the circuit Arkansas; that to require it to answer to sub-court to determine whether service could mit to a trial and a personal judgment in such be had upon the petition in this state, and |