The question here presented is the correctness of the decision of the Circuit Court which adjudged that Appellee Hughes was entitled to a fireman's pension because of physical disability. The appellant here is the Firemen's Relief and Pension Fund for the City of Pine Bluff (hereinafter referred to a "Pension Board"); and the appellee is David C. Hughes, who claims that he was injured at a time and in a manner that entitles him to a pension.
The present litigation began on August 29, 1957, when Hughes' attorney filed an oral claim with the Pension Board, which claim was denied.
The cause was heard in the Circuit Court ore tenus: part of the hearing was on the 22nd day of November, 1957 and the concluding portion of the hearing was on the 30th day of January, 1958. On the last mentioned date the Circuit Court entered judgment for Hughes for a pension to begin on July 1, 1956. From that judgment there is this appeal in which the appellant presents two points, to-wit:
I. Appellant's First Point. Section 19-2205 Ark.Stats., insofar as concerns disabled firemen, says:
Hughes never filed any written request with the Pension Board and never filed any certificate of disability with the Pension Board, as a basis for his request of August 29, 1957. When the case reached the Circuit Court the Pension Board claimed as a defense that Hughes had failed to comply with the Arkansas Statutes. On the trial, Hughes admitted that he had never appeared before the Pension Board; and no certificate of any kind was introduced in the trial.
The Statute provides in § 19-2210 that appeals from the Board to the Circuit Court shall be, "* * * in the method now provided for appealing from decisions of the justices of the peace in civil cases". The trial in the Circuit Court is de novo; but in the de novo trial in the Circuit Court there was no evidence that Hughes had complied with § 19-2206 Ark.Stats. The question, then, is how fatal is his said failure. The situation here is very much like the situation involving § 51-1101 Ark. Stats. That section provides that before any mortgagee shall proceed to foreclose a mortgage or to replevy under such mortgage any personal property, such mortgagee shall make and deliver to the mortgagor a verified statement of account showing each item, debit and credit, and the balance due. We have held that, unless waived, compliance with § 51-1101 is a prerequisite to the beginning of proceedings. Lawhon v. Crow, infra. Likewise, it is clear that, unless waived, compliance with § 19-2206 is prerequisite to the allowance of a disability claim.
The case of Lawhon v. Crow, 92 Ark. 313, 122 S.W. 999, 1000, points the way to our conclusions here. In that case the mortgagee brought suit in the Justice of the Peace Court to replevy personal property described in the mortgage. The mortgagor pleaded in the Justice of the Peace Court that the mortgagee had failed to fully comply with the section that is now § 51-1101 Ark.Stats. The case reached the Circuit Court and the mortgagor renewed his plea. The Circuit Court sustained the defense and the mortgagee appealed. This Court cited the earlier cases of Atkinson v. Burt, 65 Ark. 316, 53 S.W. 404, and Perry County Bank v. Rankin, 73 Ark. 589, 84 S.W. 725, 86 S.W. 279, and reached the conclusion that: "* * * the mortgagee does not forfeit his debt by failing to comply with the statute. * * * He may still have his remedy of foreclosure by complying with the statute. * * *"
II. Appellant's Second Point. The appellant claims that the appellee is not entitled to a pension because his injury was caused by his own misconduct, and pleads § 19-2210 Ark.Stats. as a defense to any pension claim of appellee. Even though this present case is to be dismissed by the Circuit Court, we think it only proper for future guidance to point out that we are not passing on this second point. Thus, the Pension Board is still at liberty to make its claim, relying on the provisions of § 19-2210 Ark.Stats.
The judgment in the present case is reversed and the cause is remanded, with directions to the Circuit Court to dismiss the present case but without prejudice to Hughes to have further proceedings after he complies with the applicable law.
WM. J. SMITH, J., not participating.