Batesville v. Ball

• Decision Date: 30 October 1911
• Citation: 140 S.W. 712,100 Ark. 496
• Parties: BATESVILLE v. BALL
• Court: Arkansas Supreme Court

140 S.W. 712

100 Ark. 496

BATESVILLE v. BALL

Supreme Court of Arkansas

October 30, 1911

Appeal from Independence Circuit Court; R. E. Jeffery, Judge reversed.

Judgment reversed and cause remanded.

Ernest Neill, S. A. Moore and Samuel M. Casey, for appellant.

1. Having obtained jurisdiction of this cause by regular appeal the circuit court should have tried it de novo, and disposed of the case in its entirety, and rendered such judgment as the county court should have rendered. Kirby's Dig § 1492; 33 Ark. 508, 511; 34 Ark. 240, 243, 244; 43 Ark. 324; Id. 42; 79 Ark. 504.

2. It was not necessary, in order to submit the proposed annexation question to the voters, for the council to pass an ordinance. It may be done either by ordinance, resolution or motion duly carried and made of record. Kirby's Dig., § 5519; 33 Ark. 508; Anderson's Law Dict. 143; 34 Cyc. 1667-1668; 10 Cur. Law, 892; 3 L. R. A. 261; 3 Am. & Eng. Ann. Cas. 651.

3. If the ordinance be construed to be of a general and permanent nature, such as is contemplated by § 5481, Kirby's Digest, it was, as such, legally passed. The language of that statute, requiring a two-thirds vote of the members composing the council in order to suspend the rules, means two-thirds of the quorum of members of the council then present and transacting business. 144 U.S. 325; 1 Dillon, Mun. Corp. 295.

Oldfield & Cole, for appellees; McCaleb & Reeder, of counsel.

1. This appeal is premature. There was no judgment terminating the litigation, no final disposition of the matters involved. The order of the circuit court "that this cause be remanded to the county court with direction that said court entertain jurisdiction thereof, and proceed to hear and determine the same upon its merits" was no such final order or judgment from which an appeal will lie. Kirby's Dig., § 1188; 4 Ark. 630; 5 Ark. 301; Id. 638; 25 Ark. 331; 74 Ark. 352; 91 Ark. 231, 238; 85 U.S. 628, 21 L.Ed. 813; 148 Ill. 25.

An appeal will not lie unless there has been a final disposition of a case as to all parties. 15 Ark. 401; 156 U.S. 339, 39 L.Ed. 441; 11 S.W. 531; 12 S.W. 750.

2. The initial step in this matter was the alleged passage of the ordinance No. 302, accurately defining the boundary line of the new territory. That it falls with the terms of the statute, Kirby's Dig., § 5481, "of a general or permanent nature," is shown by the fact that it prescribed the boundary of the proposed new territory. If adopted, it alone would be the basis of defining the city limits until changed as prescribed by law. 49 N.E. 335.

This ordinance was not legally passed, since there was no compliance with that part of the statute providing that the rules can be suspended only by a two-thirds vote of "the members composing the city council." Kirby's Dig., § 5481. The aldermen, together with the mayor, compose the city council. Id. § 5589; 2 N.W. 436; 20 Ind. 315.

OPINION

FRAUENTHAL, J.

The council of the city of Batesville submitted to the qualified electors thereof the question of annexing certain contiguous territory to said city, and at the annual election a majority voted in its favor. In submitting said question, the council passed an ordinance providing for such annexation and for the submission of the question at such election. Said ordinance was passed at a regular meeting of the city council when only five of its seven members were present. Under a suspension of the rules, the ordinance was read three several times, but only four of the members voted for such suspension of the rules. Thereafter, the city of Batesville by its attorney presented to the Independence County Court a petition praying for such annexation. To the granting of said petition, G. W. Ball and others, who were residents and land owners of the territory proposed to be annexed to said city, filed a remonstrance for numerous reasons. Among these were that said ordinance submitting the question of the annexation of said territory was never legally passed and adopted by the city council. It was also contended that it was not fit or proper, as affecting the interests and convenience of the public, to annex said territory. Other parties filed separate remonstrances to the granting of said petition for annexation.

The county court held that the ordinance passed by the city council providing for submission of the question of such proposed annexation to the electors of the said city was not legally passed and adopted, and for that reason dismissed the petition. From this judgment and order of the county court the city of Batesville appealed to the circuit court.

Upon a hearing of the matter in the circuit court, that court held that said ordinance was legally passed and adopted by the city council, and that the county court had improperly refused to entertain jurisdiction of the cause. It further held that, inasmuch as the county court had never exercised its discretion and passed upon the merits of the petition for annexation, the circuit court was without jurisdiction to hear and determine same. It thereupon ordered and adjudged that "the cause be remanded to the county court with directions that said court entertain jurisdiction thereof, and proceed to hear and determine same upon its merits." From this judgment of the circuit court, the city of Batesville took an appeal.

The remonstrants excepted to the ruling of the circuit court holding that said ordinance submitting the question of annexation to the electors of said city was legally passed and adopted, and from such ruling prayed an appeal to this court.

It is insisted by counsel for the city of Batesville that the circuit court should have retained jurisdiction of the cause after the same had been appealed to that court, and should have tried the matter de novo and upon its merits, and that it erred in remanding the same to the county court for further proceedings.

It is provided by section 1487 of Kirby's Digest that appeals shall be granted as a matter of right from all final orders and judgments of the county court. By section 1492 of Kirby's Digest it is provided: "The circuit court shall proceed to try all such appeals de novo as other cases at law." Under these provisions of the statute, it is the duty of the circuit court, when a cause is appealed from the county court, to hear the matter de novo, and to try the cause and to exercise the same discretion therein in the same manner in which the county court might have done originally. When a cause is appealed from the county court to the circuit court, the latter court obtains jurisdiction over the matter to the same extent as if it had been originally brought in that court, and it must proceed to fully try and determine the cause. It does not pass upon the question as to whether or not the county court has committed error in any of its rulings, either of law or of fact, but it must try the cause upon its merits, both of law and of fact, just as if it had been originally brought in the circuit court. It does not either affirm or reverse the findings or judgment of the county court, but tries the cause alone upon its merits, and determines the same by the exercise of its own discretion and judgment. It must come to a final determination of the matter, and enter a final judgment thereon. After such final judgment has been made by it, it can then order the same back to the county court with directions to enter such judgment as it has made; but it has no authority to remand the cause with power to the county court to proceed further therein as it may determine. It is true that matters relating to the annexation of territory to municipalities are different from ordinary suits or judicial proceedings, and are largely of a political nature. The Legislature has originally confided to the county court the discretion of passing upon the fitness and propriety of annexing territory to the municipality, and of determining whether or not it is to the best interests and convenience of the public to do so. When such questions have been determined by the county court, they should and do have great persuasive effect; but when the matter is appealed to the circuit court, the cause is then tried anew by that court, which must pass its own judgment thereon. The circuit court does not, and should not, regard the view of the matter taken by the county court any further than as the same may be persuasive. Having this jurisdiction of the cause, and being clothed with this power and discretion, the circuit court erred in not trying the matter anew, and in remanding the same to the county court. Dodson v. Fort Smith, 33 Ark. 508; Phillips County v. Lee County, 34 Ark. 240; Foreman v. Marianna, 43 Ark. 324; Vestal v. Little Rock, 54 Ark. 321, 15 S.W. 891; Freeman v. Lazarus, 61 Ark. 247, 32 S.W. 680; Marion County v. Estes, 79 Ark. 504, 96 S.W. 165; Smith v. Van Gilder, 26 Ark. 527; Grider v. Apperson, 38 Ark. 388; Wilson v. Hinton, 63 Ark. 145, 38 S.W. 338.

It is urged by counsel for appellee that the order of the circuit court remanding said cause to the county court for further proceedings was not a final judgment from which an appeal could be taken to this court. It has been said that it is difficult to accurately define a final judgment or order from which an appeal lies. But it may be correctly said that a final judgment from which an appeal will lie is one that either terminates the action itself, or operates to divest some right in such a manner as to put it out of the power of the court making the order to place the parties in their former condition after the expiration of the term. An interlocutory order or judgment from which an appeal will not lie relates only to some question of law or matter of practice in the course of the proceeding,...