*1 782-
cattle and certain other livestock to allow them run at large public highway instruc State. The unambiguous correctly tion .is states the law. We frequently have held that, while the violation of a statute negligence per does not se, constitute it is evidence of negligence jury may along consider, which determining negli othér facts circumstances, gence non-negligence Mays or defendant. Grocer Co., Ritchie 177 Ark. 5 2d S. W. Gill v. 728; Whiteside-Hemby Drug 122 Co., W. giving error There no of the instruction.
(cid:127) objection general There No. was also Instruction requested plaintiff given in- the court. This public highway. Although appellant struction defined a says prejudicial misleading, the instruction was there given no contention that the definition is incorrect. giving there Since was no error No. Instruction “public entirely proper it 1, was court to define ’’ highway. argued ap- given It is also that other instructions pellee’s request inherently they erroneous were because Appellant were based on said Initiated Act 1.No. has pointed it. out error do find such nor we Affirmed. v. Pence.
5-402 2d 609 S. W.
Opinion delivered June 7, 1954.
Wayne appellant. Foster, Boyett Bawlings, ap- Edward H. and Terral & *2 pellee., proceeding'to Justice. This is a F.
Ed. McFaddin, alleged payments for child be obtain past unpaid. Chancery judg- due and The refused Court appeal and ensued. ment, this February Chancery: the Pulaski 5,
On 1942, Court- ) (the present appellant awarded Mrs. Winnie Pence a' Royce (the pres divorce from then husband, Pencé- appellee). In the ent divorce Mrs.-Pence decree, custody Royce their awarded infant child, the Charles per and was awarded the sum of week for Pence, $2.50 gave1 maintenance of minor child. the the said The decree custody provi and child, Mrs. Pence the the made no sion for the father’s such- because visitation, mutually rights agreed upon visitation seem to have been of the decree. The child visited Mr. outside over Pence service, until Pence entered naval' week-ends Mr. payments -had 3, on March 1942. maintenance been regularly to that time. made , Navy he
Mr. Pence was and United States per month for made allotment the benefit' of an Royce and allotment Charles son, Pence, his . though regularlj'- paid Navy May, Even 1945 monthly allotments in excess of the amount these were no ordered Pence Court, nevertheless, Mr. claims monthly overpayments. Loomis v. for such credit 255 W. 671. Loomis, 743, stopped May, allotment, In Mr. and Pence September monthly payments; no further made original proceed- motion Mrs. Pence filed 18,1953, ings $1,285.00 in the Pulaski monthly Mr. week. accumulated judgment; evi- resisted the motion for and the. had,been family and his dence Mr. disclosed Pence and to locate whereabouts of Mrs. unable boy, filing Royce from 1944 until the Pence, Charles September, this motion evidence showed shortly after divorce in that ried a Mrs. Pence mar- divorced him in
Mr. Weaver, a few weeks; present then married her Mr. Nelson. husband, We will continue to refer to her Pence. as Mrs. coming Navy Mr. Pence was home from 30-day furlough,
on a and he wrote mother to his ask boy during Mrs. Pence to let him have the a visit for request; furlough. just refused Mrs. Pence be- fore Mr. Pence reached Mrs. Pence Arkansas, wrote Mr. postcard Pence’s mother a from some Western State, saying: way “We on our to the coast. are Don’t know going or where we are when be we will back.” Mr. *3 telegrams trying mother sent Pence’s to Mrs. locate up get boy and offered to Pence, and to send to someone safely. Joplin, him return Mrs. Pence had lived Telegraph Company but the Missouri, make was unable to any delivery. Pence testified Mrs. that after leav- ing they Joplin, Washington lived for a time and Ore- gon, Joplin, then returned Missouri. It was not they finally until that returned to Arkansas to live. They have lived at Bauxite, since 1950. Arkansas, (from Navy money)
The sum of $40.00 allotment registry Chancery remained in the of the Pulaski money June, When Mrs. Pence wrote for that receipt a check sent to 1947, was her. She denies the payment, of but cancelled check an endorse- bears strikingly writing. ment similar to her admitted hearing At the in the Pulaski Court pay October the Court directed Mr. 29, 1953, Pence Registry every into the of the Court two weeks thereafter for the future of his son; and Mr. objection Pence no raises that order. The Court re- judgment payments fused to award Mrs. for the appealed week from she has Sage from such refusal. She claims that the case of Sage, point; 219 Ark. S. W. that it 398, is requires judgment unpaid that she have and ac- monthly payments. cumulated issue in this case is Sage Sage, supra, law and the facts in whether the quire judgment pay- Mrs. to receive for all the unpaid due and ments 1945 to 1953. Sage Sage,
In it held was that accrued install- support money, ments, decreed as fixed ren- become judgment power dition the court is without opinion them. remit contains a citation from 27 C. payments J. S. which it was stated that exacted by original opin- decree become This vested. Court’s pay- ion then said that in Minnesota it had held been that only suspended ment of accrued installments were “until (for child” the dered) whose benefit ren- was jurisdiction “was returned to the of the court.” using “suspended” the word there not an inten- say extinguished during tion that the were period covered contumacious conduct. But there distinction between cancellation is by of the indebtedness court and a course of action, conduct child’s exemplified by showing mother —conduct circumstances supplied by involved were the mother amounts own child convenience. Insofar as the con- payment. it received cerned, mother, As to the repayment waived the own to claim for her benefit. We reach the conclusion that Mrs. Pence entitled *4 judgment per payments for from of June $2.50 week 15, 1950, October which totals But 29, 1953, $425.00. judgment we conclude that is not entitled to she unpaid prior from 1944 amount to June because 15,1950, jurisdic- boy the until June had outside 15, 1950, the thereby prevented of visitation Court, this and tion. rights of to Mr. Pence. We hold that the Mrs. suspended payments Pence to until June, enforce the was when the child to The rule she returned this State. Sage Sage, supra: is stated in- states hold accrued
“There are a which that few may remitted or modified. such state stallments be One appellee is Minnesota from Eberhart v. Eber which cites In hart, however, N. W. 592. 66, 189 case, Minn. this holding payment of accrued we understand the that be only suspended child installments jurisdiction agree turned to the of court. with We this conclusion as we understand it.”
In cited case of Eberhart the Minne- Eberhart, sota said: Court
“ plaintiff jurisdic- has taken the child from the long keeps tion jurisdiction, court. as she him without So the defendant should be relieved money payment of accrue and the future already against that should not accrued be enforced ’’ him. permission without Pu- Pence, Mrs. Chancery deliberately laski decided to take the Court, boy Evidently Northwest. she determined Pacific outweigh the the financial returns to herself would week she would receive from the order family Chancery con- Pence his Court. Mr. Pulaski tinued find him. to look for but were unable to child, years, lapse Pence all of the after a Mrs. wants Now, payments, having allowed Mr. Pence without accumulated years pleasure intervening —in ing have the see- —to Equity cannot aid her such a situation. his child. 2dW. Antonacci, 222 Ark. 263 S. In Antonacci in a somewhat situation, similar unpaid install- refused to render kept mother had maintenance, because the ments child in during time that such California points way in that case accumulated. The situation holding here. our agree Justice The Chief Justice Millwee expresses expressed; Justice Robinson herein the views opinion, separate believes that Mrs. in a his views opinion gives her. to much as is not entitled their George Justices Rose Smith, Ward, Holt, opinion, entitled to dissenting that Mrs. believe *5 effect of these various claims. amount she the full composite made: conclusion now results views is reversed and the of the decree enter directions is remanded, cause
7-87 favor Mrs. Pence as the accumulated un- suspended unpaid up -29, due to October 1953. dissenting. concurring and These J., Bobinson, paid, support
parties
in 1942.
were divorced
provided in the order
amount
excess
child in
paid during
this time
1945. $40
of the court
registry of the court uncalled-for until
mained
Pence made no effort whatever to contact
Mrs.
1947.
payment subsequent May, 1945,
Pence or to collect
September,
period
was filéd in
until the motion
a
years.
than 8
She was married twice after
of more
again
her
from Pence. Pence married
divorce
has
by
marriage.
a child
that
He earns
month
showing
and there is no
that he has accumulated
savings.
require
pay
To
him to
the entire
sum
large portion
a
wholly
arrears, or
thereof, would be
-
inequitable.
support
Pence owes for the
Of course
child;:
his
he
for such
a
and would owe
without
court order..
McCall,
Obvipusly the child was someone, and Mrs. support; question such furnished but the is, can expenditures recoup for her eight year over the period, or is recovering she barred laches from period greater period a the time she filed than prior some reasonable payment?
her motion to enforce Although appellee plead by using does not laches that response appellant’s word his plead motion, he did appellant right that had waived her to the collection the amount pleaded arrears, and he further statute of limitation. The court finding made a that kept appellant the child had concealed from the father, waived had aid of the court in judgment any payments reducing to which fell due period. during Thus the court treated the com- plaint alleging laches, and as heretofore stated there specific plea of waiver.
788 equity that, of doctrine is “The established
Laches question statutory apart limitations, its of discourage delay and enforce- sloth courts will Equity good rights. faith, conscience, demands ment of diligence. In their absence the court and reasonable object will not act. The of the doctrine of tois laches complainant dealing adversary, exact of the fair with his adopted largely great rule and the because after lapse parties, papers, of from death time, of of loss change death of witnesses, of title, intervention of equities, danger doing or other causes, there is of in- justices, longer and there can be no a safe determina- controversy.” tion of Dictionary, Dalian tine’s Law 2nd Edition. species estoppel
The doctrine of laches ais of and upon principle rests that if one remains silent when in ought speak, equity conscience he speaking to will bar him from ought when conscience he remain silent; equitable equity further, maxims that he who seeks equity, equity vigilant, must do and that and that aids great variety hence while there is a of cases which equitable depend doctrine is invoked, each case must particular equity its own circumstances courts of dis courage delay laches and Pelt, without cause. Stewart v. Stuckey, 198 Ark. 776, 131 S. W. 2d Ark. Neal v. 202 644; Hardy S. 1119, 155 W. 204 683; Hilton, 211 Ark. 991, W. 2d 163; S. Grimes Carroll, 229 W. 2d 668. right to enforce a or decree for ali-
“The mony may be lost laches.” 27 C.J.S. N. Mich. 127 W. Stone,
In Stone separation had one child, parties time of alimony, pay week $5 ordered defendant Nothing to enforce was done fee $25. solicitor’s and a years, alimony and there the of this the collection Michigan she be heard at said: “Can Supreme object day, facts, this state under late ground gross complaint upon the her bill of dismissal seasonably prosecute failing to a final suit laches inequi- opinion it would be areWe decree? permit public policy do her to against table and sound Equity those are lend aid to who its . will so. . . rights.” protecting diligent own their not so *7 5 Atl. N. J. Misc. Herman, v. In Herman unduly Jersey de “If said: the wife court the New 768, lays alimony apply neglects or to seek collection or alimony existing arrearages the court order, an under of delay of evidence find in her a waiver will be inclined payment. 257.” Wilson, v. 181 Atl. See Wilson of Ky. the 362, 54 Franck, S. W.
In Franck “Upon question Kentucky Supreme the said: Court of alimony long payment Mr. enforcing in arrears, of of the (§ 1098) Marriage Bishop, and Divorce in his work says: maintenance is for the wife’s ‘As allowance compel ordinarily year, year the not from payment court will application, beyond year prior the unless a delay appears.’ explanation And made or some of is English very thoroughly in the established rule long parties have where both that, ecclesiastical courts applying reduc court, the one for a abstained from to the pay regular alimony, tion of or the other to enforce beyond payment one arrears it will not enforce of ment, being year prior cause monition, without sufficient Blaquiere, delay. Blaquiere shown for See De De Wilson, Eng. R. 126. And in the case of Wilson Ecc. supra, upon application a moni to enforce an wife alimony, payment said: ‘Unless tion for of court partic country, from the or some the husband is absent great productive of forth, it ular reasons are set would be many injustice lapse so after the of if, inconvenience and years, If the monition. should enforce court such application aggrieved, within wife is she make her should has infer she a will time; otherwise, reasonable court general arrangement. As a made some more beneficial enforce arrears rule, the court therefore, is inclined many years’ standing’.” payment providing for in the case bar The order providing purpose week of $2.50 child, parties. necessaries of life Subsequent for the appellant to 1945the furnished those but necessaries, she compelled appellee could have to do if so had so my opinion, but desired; now, she is barred on the principle recovering any accruing laches amount prior beyond to a making reasonable time the time of application, year. which I believe should be one There- modify I fore would to that extent the decree the Chan- cellor, and as modified, affirm. majority opinion I concur
Hence as insofar appellee required pay arrearages period of one year appellant prior to the time filed her motion to enforce payment; majority opin- I such and dissent insofar arrearages period ion allows the collection such for a year. of more than *8 dissenting. majority opinion J., leaves
Ward, hopeless power in the law confusion relative to support. installments for courts to void accrued child Regardless majority opinion of the effort in strained doing the net result so, avoid is overrule the case Sage Sage, 245 S. W. 2d 398, delivered January 21, 1952. Sage supra, discussing case, this court,
power regard, of the in courts this said: opinion power the rule that courts have no
“In our payments under the accumulated circumstances to remit ’’ adopt we one and view. a here sound is quoted approval Following above we with page following: 1239 the J. S. Yol. 27 C.
“ ‘Payments original exacted decree of di- payee they in vested become vorce accrue, application modify court, on such decree, is with- authority modify to reduce the amounts or out the decree retrospectively, thereto reference with unless some made modifying is decree itself; the reservation only to the future relates and from decree the time of ” entry.’ its prece- to follow not feel bound If court does clearly laid down as that recent and so stated dent so supra, power Sage do so, but, has the case, it enough state, be bold to so such event we should attempt camouflage de- the result strained ductions. part majority,
The strained deductions on the apparent. above, mentioned are Sage
After the clear cut case, announcements supra, copied above, we referred to the fact that a few contrary, states held to the and we commented on the case of Eberhart v. Eberhart, 153 Minn. 189 N. W. agreed 592. We stated that we with the Minnesota case payment as we understood it to hold “that of accrued only suspended installments was until the child ’’ jurisdiction turned to the of the court. majority
I no reason for the submit there is reference to the conclude from the above Minnesota thereby abrogate clearly case that we meant to ex- pressed just previously rule which we had announced. power suspend payment of the court to of accrued jurisdiction until a installments child returned interpretation of the court cannot, the common sense plain english, power mean that the court has to for- payment. ever cancel such Moreover the Eberhart supra, specifically case, the court stated that it was not *9 passing power on the of the court to void or cancel payments. accrued concur in George Rose
Justices Holt Smith this dissent. Rosenthal. Executor
Rich, (Consolidated) 268 W. 5-445 5-397, Opinion delivered June