dissenting. I dissent. The majority opinion will have a greater impact on the citizens of Arkansas than appears at first glance. Many families, as is common practice, create accounts in the names of a parent and one or more child. Certainly most are unaware how easily a creditor of one of the children can access the funds placed in those accounts, which is the result of the majority’s ruling.
The majority relies on Hayden v. Gardner. 238 Ark. 351, 381 S.W.2d 752 (1964), calling it the seminal case in Arkansas on the question of garnishment of a joint banking account. Hayden determined that a joint account should be garnishable only in proportion to the debtor’s ownership of the funds, as to which parol evidence is admissible to show the respective contributions of each depositor, as well as any intent of one to make a gift to the other. The rule in Hayden makes sense. Noticeably absent from the majority’s result, however, is a direction to remand so as to join the co-tenant, the mother of the appellant, as was done in Hayden. The mother, Mrs. India Glover, was called as a witness but was not a party to this action. The Hayden court ordered the wife to be added as a party upon remand in order to determine the extent of contribution or ownership of the certificate of deposit held jointly by the debtor husband and his wife. The court in Hayden clearly stated:
It goes without argument that Mrs. Gardner has (or might have) some interest in the money in the joint account. Therefore she should have been made a party to the garnishment proceedings against the bank. This can be done upon remand.
Id. at 354, 381 S.W.2d at 754. If we are to follow the ruling in Hayden, then the majority should have, at minimum, remanded for this purpose.
Like the federal rule, ARCP Rule 19 provides the means for adding parties that are necessary or indispensable; i.e. compulsory joinder. The emphasis is placed on what practical effects a judgment might have upon an absent party. See Reporter’s Notes to Rule 19 (1993). Here, an elderly woman testified regarding her ownership of monies; the result of which was that her monies were taken without being made a party to the action and her rights unprotected. The factors should be used to determine on an ad hoc basis “whether in equity and good conscience the action should proceed among the parties before it” despite the absence of a party. See ARCP Rule 19; D. Newbern, Arkansas Civil Practice and Procedure § 5-3 (2d ed. 1993). This is certainly a case in which in equity and good conscience, the mother of appellant should have been joined as a party. Should her claim then be regarded as res judicata, as the majority would assert, then all the more reason she should have been joined below.
Further, the majority’s result ignores the overwhelming weight of the evidence. The evidence submitted leads to the conclusion that appellant did not have any ownership interest in the certificates of deposit. The testimony of appellant, her mother, and her brother revealed that all the monies in the certificates of deposit belonged to the mother, Mrs. Glover, and was derived thirteen years beforehand through the sale of assets after the death of her husband. The mother testified that she wanted the monies to eventually go to her children upon her death. Appellant and her brother never considered the money theirs and knew of their mother’s intentions. The most noteworthy pieces of evidence were the three certificates of deposit introduced into evidence, all in the names of appellant or Mrs. India Ola Glover. Mrs. Glover had signed the notice of penalty for early withdrawal for each of the certificates and had signed notices for withdrawal of interest. Neither appellant nor her brother ever exerted any ownership or control over the certificates of deposit. This evidence was uncontradicted by appellee.
The court of appeals pointed out in McLarty Leasing System, Inc. v. Blackshear, 11 Ark. App. 178, 182-83, 668 S.W.2d 53, 56 (1984) the rule with regard to uncontradicted testimony:
Under our established rules of law the trier of fact is not bound to accept the testimony of any witness even if uncontradicted and is the judge of the weight of the testimony and credibility of the witnesses. It does not, however, have the right to arbitrarily disregard the testimony of any witness and where the uncontradicted testimony of even an interested witness is unaffected by any conflicting inferences to be drawn from it, and is not improbable, extraordinary or surprising in its nature or there is no other ground for hesitating to accept it as truth, there is no reason for denying the finding of verity dictated by such evidence.
See also Knighton v. International Paper Co., 246 Ark. 523, 438 S.W.2d 721 (1969); Maloy v. Stuttgart Memorial Hospital, 42 Ark. App. 16, 852 S.W.2d 819 (1993) (Mayfield, J„ dissenting). Even if one agrees with the majority that there were two conflicting accounts of what Mrs. Glover’s intent was in setting up the accounts, the certificates themselves and Mrs. Glover’s actions in endorsing the certificates one time to receive interest income are clear and convincing evidence of the mother’s claim of ownership.
The evidence presented in this case and the manner in which the result is reached leads me to the inescapable conclusion that the trial court and the majority at least partially base their decision on an intervivos gift of the certificates to appellant. This clearly runs afoul of the rules cited in our recent case of Irvin v. Jones, 310 Ark. 114, 117, 832 S.W.2d 827, 828 (1992) wherein we emphasized the following:
‘In all gifts a delivery of the thing given is essential to their validity; for although every other step be taken that is essential to the validity of a gift, if there is no delivery, the gift must fail. Intention cannot supply it; words cannot supply it; actions cannot supply it; it is an indispensable requisite, without which the gift fails, regardless of the consequences. . . .’
(quoting Ragan v. Hill, 72 Ark. 307, 80 S.W. 150 (1904)).
In the instant case, there was no delivery. The mother maintained possession. The mother alone took interest income. Appellant never asserted nor ever intended to assert ownership over the funds clearly placed in both names for the purpose of caring for the mother. The actions taken with regard to the certificates coupled with the uncontradicted testimony of the mother, appellant, and the brother cannot be summarily disregarded. The decision below and now here is arbitrary and should not be allowed to stand.