Allison v. Camp Creek Drainage Dist. of De Soto County, 37915

• Decision Date: 09 April 1951
• Docket Number: No. 37915,37915
• Parties: ALLISON et al. v. CAMP CREEK DRAINAGE DIST. OF DE SOTO COUNTY et al.
• Court: Mississippi Supreme Court

Page 743

51 So.2d 743

211 Miss. 354

ALLISON et al. v. CAMP CREEK DRAINAGE DIST. OF DE SOTO COUNTY et al.

No. 37915.

Supreme Court of Mississippi, Division B.

April 9, 1951.

H. Grady Johnston, Hernando, Barnett, Jones & Montgomery, Jackson, for appellants.

Paul Bowdre, Hernando, Wells, Wells, Newman & Thomas, Jackson, for appellees.

ETHRIDGE, Commissioner.

This case raises the question of whether the signer of a petition for creation of a drainage district may make a second change of mind and withdraw his withdrawal after the time set in the clerk's published notice for filing of proponents' and contestants' petitions, but before the end of that day and the hearing. Appellants, S. J. Allison and Mrs. Paul Edwards, appealed from a decree of the Chancery Court of DeSoto County, Mississippi, establishing the Camp Creek Drainage District of DeSoto County, Mississippi, which is an appellee herein, along with D. B. Bridgeforth and other proponents for the creation of the District.

Appellee District is a drainage district with local commissioners created under the provisions of Chapter 195, Miss.Laws 1912, Code of 1942, Secs. 4674-4679. On September 2, 1949, the chancellor, by decree, temporarily organized the District and appointed temporary commissioners, as provided by Code Sec. 4675. These commissioners selected an engineer who made a survey and report to them on recommended development of the District. This report was filed and the chancery clerk then published notice to all property owners within the District 'to appear before the Hon. Herbert Holmes, Chancellor, in Vacation on March 9, 1950 at 10:00 A. M. at the courthouse, Hernando, Mississippi, to show cause in favor of or against the establishing of said District.' This notice was published under the authority of Miss.Code of 1942, Sec. 4676, which provides that after the report is filed, the clerk shall fix a 'date' for the hearing, and 'At the time named' the chancellor shall hear all property owners. Further provision for the hearing is made in Code Sec. 4678: 'If upon the hearing provided for in the foregoing sections a petition is presented to the chancery court, or the chancellor in vacation, signed by a majority of the landowners owning one-third of the land, or, one-third of the landholders owning a majority of the land, praying that the improvements be made, it shall be the duty of the court or chancellor to make the order establishing the district, without further inquiry, if it appear that the establishment thereof be necessary for the promotion of public health and for agricultural purposes; provided, however, that if upon that day a petition signed by a majority of the landowners owning one-third of the land, or one-third of the landowners owning a majority of the land, be presented praying that the improvements be not made, it shall be the duty of the court or chancellor to so order, but if no such petition is filed it shall be the duty of the court or chancellor to investigate as provided in the preceding sections, and to establish such drainage districts as he is of the opinion the establishment thereof will be to the advantage of the owners of real property therein, and is for the public benefit. And the petition provided for therein may be signed by women, whether married or single, owning land in the proposed district; guardians may sign for their wards, and trustees, executors and administrators may sign for the estates represented by them, and if the signature of any corporation thereto is attested by the corporate seal, the same shall be sufficient evidence of the assent of the corporation to said petition.'

Code Sec. 4679 states that 'The order of the chancery court, or chancellor in vacation, establishing such drainage districts shall have the force of a judgment.'

On the day set in the notice, March 9, proponents of the District filed at 9:36 A. M. four separate petitions asking for its permanent organization. Six of the signers had previously signed petitions objecting to the District and here were revoking those objections and affirming their positions as proponents. These proponents' petitions filed at 9:36 A. M., March 9, contained, appellants admit, the signatures of one-third of the landowners owning a majority of the land in the District. At 10:00 A. M., March 9, the petitions of the proponents of the District, appellees here, were the only ones on file, so at the time set in the published notice appellees had a petition adequate for permanent creation of the district.

When 10:00 A. M. arrived, attorneys for both sides requested the court to recess for a short while until they could reduce the number of issues between them. This was done and at 1:30 P. M., March 9, appellants, contestants of the organization of the District, filed two petitions against the organization of the district, which together contained a majority of the 72 landowners in the District owning one-third of the land. When contestants had filed their petitions at 1:30 P. M., they were adequate under Sec. 4678 to prevent the organization of the District. However, several persons were on petitions both for proponents and for contestants.

Appellees did not move to strike the late petitions of appellants, but objected to them being filed after 10:00 A. M., the time set in the notice. In answer to the objection of appellees' attorney to the late filing of contestants' petitions, counsel for appellants stated to the chancellor that Section 4678 does not designate any particular time for petitions to be filed, but only states 'if upon that day'. In reply to a question by the court that 'according to that, you would have until 12:00 tonight,' appellants' attorney answered, 'Yes, sir, it could be had at any time. The hearing could be had any time this day * * *.' The trial court agreed with this position and held that the time for filing petitions did not expire until 12:00 midnight on the return day, March 9. Hence the court of its own motion continued the hearing until the next morning, March 10.

After that recess on March 9, and between 9:00 and 10:45 P. M. that night, six of the persons who had signed both petitions, including the appellants' objections to the District, filed petitions withdrawing from contestants' petitions and asking for the organization of the District. The trial court overruled appellants' objections to the filing of these additional proponents' petitions, in which they revoked their previous withdrawals from earlier proponents' petitions. It held that, considering them, appellants had an insufficient number of objectors and appellees had an adequate petition for the permanent creation of the District, which contained more than one-third of the landowners owning a majority of the land. It then heard evidence on whether the District would be to the advantage of landowners and would promote public health and agricultural purposes, found in the affirmative on those issues, which finding appellants do not contest, and by decree, permanently created the District, from which this appeal is taken.

Appellants question only the right of the six additional proponents to file petitions with the clerk removing their names from the contestants' petitions and inserting them on proponents' petitions after the adjournment of the court on March 9, 1950. Appellants say that the court should have acted upon the petitions that had been presented to it on March 9, before it adjourned; that under Code Secs. 4676 and 4678, the chancellor can consider only petitions filed with the clerk on or before the hearing on the return day; that proponents' petitions filed on the night of March 9 were too late and could not be considered under the above statutory provisions; and that when the court adjourned on March 9 it then had before it adequate petitions objecting to the District, and it was then the court's duty to so adjudicate. Appellants admit their petitions were filed late, at 1:30 P. M., but say that appellees failed to move to strike them and thereby waived that objection. Appellants concede that the court could, by order, postpone the hearing; that, if the hearing is begun but not completed on the return day, it could continue it from day to day until completed; that, although Code Sec. 4062 requires the clerk's office to remain open from 8-5 P. M.,...