90 HARVEY v. MARE. [173 The alleged incompetency of the testimony. is based 1 upon the fact that witness did not examine this particular car. One of the allegations of negligence was that • appellee had furnished a defective car in which to transport the berries. H. A. Simms qualified as an expert on the subject of refrigerator cars, after which he testified that the car in question was one of a series of fifty cars which were constructed exactly alike, and that the particular type or series was constructed so as to produce proper refrigeration. This evidence was admissible as tending to prove that the particular car was properly constructed and not defective. Witness further stated that the amount of ice furnished this car at the various icing - stations was sufficient to produce and maintain proper refrigeration. His expert knowledge qualified him as a witness for. that purpose.. The trial court did not err in admitting his testimony. NO error appearing, the judgment is affirmed. • HARVEY v. MARE. Opinion delivered March 14, 1927. 1. APPEAL' AND ERROR—TEMPORARY ORDER.—In a suit for partition of an oil and gas lease, an order of court in vacation directing the receiver to pay one-half of the cost of standardizing the well and operating the lease, made subject to adjustment of the equities in the final decree, was a mere temporary order from which an appeal would not lie, where the court later heard the cause and rendered a decree disposing of the matters contained in the former order. 2. APPEAL AND ERROR—TEMPORARY ORDER.—An appeal will not lie from a mere temporary order. 3. APPEAL AND ERROR—EFFECT OF SUPERSEDEAS.—The effect of a supersedeas bond on appeal from a final decree was to supersede all temporary orders -made during the pendency of the action. • Appeal from Union Chancery Court, Second Division; George M. LeCroy, Chancellor ; motion denied.
91 HARVEY v. MARR. ARK.] Haynie, Parks & W est fall, for appellant. J. This suit was instituted in Novem-HUMPHREYS, ber, 1925, by appellee against appellant, in the chancery court of Union County, to partition a commercia l oil and gas lease covering the southwes t quarter of the northwest quarter of the northeast quarter of section 17, township 16 south, range 15 west, in said county, which they owned half and half, and to hold appellant, E. J. Harvey, liable on a certain drilling contract between appellee and ap lant, Bray-Hawthorne Company, incorp ed , that t p h e e l y executed before said corporatio n sold it o s r i a n t terest in said leaSe to E. J. Harvey. Separate answers were filed by •appellants in the month of December following, and by the Americn Trades and Savings Ba E. J. Harvey assigned his interest in , sai n d k l , e a t s o e , w d h en o y m in g liability under the drilling contract. • During the pendency of the suit a receiver was appointed by the chancellor to take charge of the alleged Harvey interest in the lease and collect one-half of all moneys due or to become due from sales of oil produced . in the operation of the lease. On January 15, 1925, on application of appellee, and over the objection and exception of appellants, the chancellor in vacation authorized and directed the receiver to join appellee in the employment of some one to drill a well on the lease to deep sand and to standardi ze same ; also to pay one-half of the cost of standardizing the first well, and one-half of the expense in operating the lease. No appeal was prose- cuted from the order. Pursuant to the order, the receiver and appellee entered into a contract for standardi zing the well on the property and for drilling a second well to the third, or deep, sand, which was successfully drilled and s O ta n n d Ja a n rd u i a z r e y d 3 . 0, 1926, the court heard the cause upon the pleadin g s and testimony, resulting in a decree and partitio n in accordance with the interests of the several parties, and an order for the sale of the lease. T $ h 1 e 8 , i 0 p 0 t 0 er-est of E.. J. Harvey was charged in part with in \\N
92 HARVEY V. MARTI. [173 favor of appellee for 1 drilling and stan stan dardizing .the first well and dardizing the second well. Appellants prayed and were granted an appeal from the decree to this court, and filed a sup ersedeas bond, which was C ap ou p n r t o y v . ed by the clerk of the chancery court of Union After the execution and ap proval of the s u p bond, and prior to the expiration of the six m e o rs n e t d h e s a ' s period allowed appellants to perfect their appeal, lee filed a J r anscript of the p appel-leadings, orders and of this court, and made same a basis for a motio d n ec t re o e direct the receiver to pay one-half of the cost of ing the lease, one-half of the cost of operat-stan dardizing first well, one-half the cost of drilling the second well t th o e the third, or deep, sand, and stan dardizing same, and to direct the receiver to carry out the order of the chancellor c m o a n d ta e i n o s n the 15th day of January, 1925. The motion al collected on l e e g h a a t l i f o o n f s t h to e the effect that the receiver has p roceeds of the oil run from lease and now has more than $10,000 in his hands, the has not complied with the order of January 15, 192 b 5 u , t because he is in doubt as to whether the sup supersedes the final decree of date January 3 e 0 r , s 1 ed 9 e 2 a 5 s , bond or also su persedes the order of date January 15, 1925 o . n ly, We have examined the order of date January 15, a 1 9 f 2 in 5 a , l a nd find that it does not purport on iis face to be j objection u o d f g ment. It was made in vacation, over the app struction of the c e o ll n a t n ra ts c , t in conformity to appellee's con-o one-half the cost of bligations of appellants to pay stan the cost of drilling the s d e a c rd o i n z d in w g e th ll e first well, one-half stan - to deep sand and dardizing same, and one-half the cost of operating the lease. These matters are the main subjects of controversy in the cause, and were covered in the final decree, from which an appeal has been prosecuted to this court. The order stated that it was made subject to the adjustment of the equities between the parties to the action in the final decree. It was therefore a t order from which an appeal would not lie. The e e m ff p e o c r t a r o y f
the supersedeas bond was to supersede the final decree and all other orders made during the pendency of the action. The motion is denied.
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