{
  "id": 1684849,
  "name": "Gregory v. Colvin, Judge",
  "name_abbreviation": "Gregory v. Colvin",
  "decision_date": "1963-01-14",
  "docket_number": "5-2845",
  "first_page": "1007",
  "last_page": "1010",
  "citations": [
    {
      "type": "official",
      "cite": "235 Ark. 1007"
    },
    {
      "type": "parallel",
      "cite": "363 S.W.2d 539"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "206 P. 2d 952",
      "category": "reporters:state_regional",
      "reporter": "P.2d",
      "opinion_index": 0
    },
    {
      "cite": "106 F. Supp. 500",
      "category": "reporters:federal",
      "reporter": "F. Supp.",
      "case_ids": [
        321023
      ],
      "opinion_index": 0,
      "case_paths": [
        "/f-supp/106/0500-01"
      ]
    },
    {
      "cite": "131 F. Supp. 668",
      "category": "reporters:federal",
      "reporter": "F. Supp.",
      "case_ids": [
        4261506
      ],
      "opinion_index": 0,
      "case_paths": [
        "/f-supp/131/0668-01"
      ]
    },
    {
      "cite": "113 F. Supp. 892",
      "category": "reporters:federal",
      "reporter": "F. Supp.",
      "case_ids": [
        4233175
      ],
      "opinion_index": 0,
      "case_paths": [
        "/f-supp/113/0892-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 393,
    "char_count": 6039,
    "ocr_confidence": 0.502,
    "pagerank": {
      "raw": 4.202994376130507e-07,
      "percentile": 0.9133439826028468
    },
    "sha256": "e8cad04a8555ead41ed838ea5ef298d87726dc0ec9f8daee8f2d4cb2094d9f1c",
    "simhash": "1:65fee252cc4cadd8",
    "word_count": 1026
  },
  "last_updated": "2023-07-14T18:12:51.729415+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Not participating: McFaddin and Holt, JJ."
    ],
    "parties": [
      "Gregory v. Colvin, Judge."
    ],
    "opinions": [
      {
        "text": "Jim Johnson, Associate Justice.\nThis is a petition for a writ of mandamus directing the respondent Circuit Judge to set a case for trial.\nIn September, 1959, petitioner, Bessie Gregory, filed suit in the Circuit Court of Dallas County against Fred Thompson and Henry Thompson, d/b/a Thompson Buick Company, in tort for conversion of cash belonging to petitioner. On November 16, 1959, the case was tried before a jury of twelve and resulted in a hung jury, seven to five in favor of petitioner. The trial court declared a mistrial and dismissed the jury. Thereafter on January 23, 1961, the case was again tried and again resulted in a deadlocked jury, six to six. After several requests for resetting the case for trial, on June 18, 1962, the respondent entered an order permanently denying petitioner\u2019s request for trial, stating that, \u201cThe Court is of the opinion, that any future trial of this case would simply again result in a deadlocked jury and a mistrial and cause the county further wasted expense.\u201d From this order comes this petition for writ of mandamus.\nIn support of her petition, petitioner contends that the trial court\u2019s order effectively and permanently denies her a trial and final adjudication of her rights and deprives her of property without due process of law.\nThis is apparently a case of first impression. We have been unable to locate any cases in Arkansas or any other jurisdiction that are directly in point.\nPetitioner\u2019s suit in tort is a \u201cchose in action\u201d. It is defined in 73 C.J.S., Property, \u00a7 9b, as follows:\n\u201cA chose in action means, literally, a thing in action, and is the right of bringing an action, or a right to recover a debt or money, or a right of proceeding in a court of law to procure the payment of a sum of money, or a right to recover a personal chattel or a sum of money by action, ...\u201d\nIt is basic property law that a chose in action is personal property. The right to sue for damages is property. See 73 C.J.S., Property, 9, generally; also Redfern v. Collins, 113 F. Supp. 892 (Tex.); Willis v. Franklin, 131 F. Supp. 668, (Tenn.); Wilson v. Brown, 106 F. Supp. 500 (Ky.).\nThe California District Court of Appeal, in Werner v. Southern California Associated Newspapers, 206 P. 2d 952, stated the rule as follows:\n\u201cThe right to recover actual damage is property and the constitutional guarantees of that right are the same as of other property rights, hence an injured party cannot be deprived thereof without due process of law, which means that he is entitled to a hearing and determination by a court of law. \u2019 \u2019\nIn the case at bar, petitioner has sued and had two trials, both of which resulted in mistrials. A mistrial is often defined as being equivalent to no trial; certainly there has been no final determination of petitioner\u2019s cause of action. Petitioner contends that to deny her another trial is to deprive her of property without due process of law, in contravention of the constitutional guarantees.\nSection 13 of Article 2, Declaration of Eights, of the Constitution of Arkansas, is as follows:\n\u201cEedress of Wrongs. \u2014 Every person is entitled to a certain remedy for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase, completely, and without denial, promptly and without delay, conformably to the laws.\u201d\nSimilar protections are provided in the Constitution of the United States:\n\u201cAmendment 14, \u00a7 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.\u201d\nEespondent contends that his order was \u201cconform-ably to the laws\u201d. The \u201claws\u201d referred to are Arkansas Statutes \u00a7\u00a7 27-1735 and 27-1736, which state:\n\u201cDischarge of jury. The jury may be discharged by the court on account of sickness of a juror, or other accident or calamity requiring their discharge, or by consent of both parties, or after they have been kept together until it satisfactorily appears that there is no-probability of their agreeing. [27-1735]\n\u201cNew Trial After Discharge. In all cases where the-jury are discharged during the trial, or after the caus\u00e9is submitted to them, it may be tried immediately or at a future time, as the court may direct.\u201d [27-1736]\nRespondent argues forcefully that the key word in the above statutes is \u201cmay\u201d, and that by usual statutory construction \u201cmay\u201d is directory or permissive rather than mandatory. With this we agree. Rereading these two statutes, it seems apparent that the legislature intended them to be permissive, to give the trial court discretion in the discharge of juries and in the setting of new trials. However, we cannot go so far as to say that the usual and natural meaning of the words of the statutes, in particular \u00a7 27-1736, extends to \u201cmay or may not be tried again\u201d. From the usual and natural meaning, the legislature apparently intended that the trial court could direct when the cause would be tried \u2014 immediately or at a future date \u2014 not whether it could be tried. To hold that the statute gives the trial judge the discretion to bring a cause of action to an untimely end would be holding that a statute could abrogate a constitutional right. The classic and beautiful language of Article 2, \u00a7 13 of our Constitution expresses the opinion of this court clearly: \u201cHe ought to obtain justice freely, and without purchase, completely, and without denial, promptly and without delay, conformably to the laws\u201d.\nWrit granted.\nNot participating: McFaddin and Holt, JJ.",
        "type": "majority",
        "author": "Jim Johnson, Associate Justice."
      }
    ],
    "attorneys": [
      "Bernard Whetstone, for petitioner.",
      "Thomas D. Wynne, Jr. and Frank W. Wynne, for respondent."
    ],
    "corrections": "",
    "head_matter": "Gregory v. Colvin, Judge.\n5-2845\n363 S. W. 2d 539\nOpinion delivered January 14, 1963.\nBernard Whetstone, for petitioner.\nThomas D. Wynne, Jr. and Frank W. Wynne, for respondent."
  },
  "file_name": "1007-01",
  "first_page_order": 1033,
  "last_page_order": 1036
}