O'Brien v. Root

• Decision Date: 22 December 1924
• Docket Number: 71
• Parties: O'BRIEN v. ROOT
• Court: Arkansas Supreme Court

266 S.W. 931

167 Ark. 119

O'BRIEN v. ROOT

No. 71

Supreme Court of Arkansas

December 22, 1924

Appeal from White Circuit Court; E. D. Robertson, Judge; affirmed.

Judgment affirmed.

Culbert L. Pearce, for appellant.

The right to withdraw names from a petition of this nature before presentation is like the right given a plaintiff to dismiss his case or take a nonsuit. This right is plainly given. See 9 R. C. L., p. 193, 196, 197; 15 Ark. 148; 74 Ark. 536; 17 Ark. 435; 76 Ark. 400; 133 Ark. 570; 131 Ark. 36. The rule announced by this court many times as to petitions under the three-mile law is not applicable here.

Avery M. Blount, for appellee.

The rule applied in local option cases by this court in the following cases is also applicable here. See 51 Ark. 159; 70 Ark. 175; 75 Ark. 154; 112 Ark. 342. The court was correct in refusing to allow the petitioners to withdraw their names.

OPINION

WOOD, J.

This is the second appeal in this case. See 164 Ark. 156. The facts are correctly stated in appellants' brief as follows:

"On November 7, 1923, after having given proper notice, some of the appellees filed a petition in the county court, praying that Cypert Township be exempted from the provisions of act No. 239, as provided by § 11 of said act. The appellants made themselves parties to the proceedings by filing a remonstrance, denying, among other things, that the petition for exemption contained a majority of the qualified electors of the township. A hearing was had on November 12, 1923, and the court denied the prayer of the petitioners because their petition did not contain a majority of the qualified electors of the township. No appeal was taken from that order. Thereafter, on December 28, 1923, O. R. Root and thirty-nine others, after having given proper notice, filed their petition in the county court, seeking the same relief as in the first instance. Thereafter, on January 7, 1924, J. E O'Brien and twenty-nine others, qualified electors, and three others who were not electors, made themselves parties to the proceeding by filing a remonstrance and a motion to dismiss on the ground of former adjudication. In their remonstrance they set up that they were qualified electors of Cypert Township and landowners therein, and, as such, had an interest in the subject-matter of the petition, and asked to be made parties to the proceedings, and alleged that there were no good reasons why the township should be exempted from the provisions of the act and many good reasons why it should not be exempted; that they constitute a majority of the qualified electors, landowners and taxpayers of the township and that they are fully satisfied with the provisions of the act, and favor a general stock law. They prayed that the petition for exemption be denied and that the stock law remain in full force and effect. During the term, A. J. Mote and eleven others, who signed the original petition for exemption, filed separate petitions, asking that their names be stricken from the petition for exemption and that they be counted as remonstrators and opposed to exemption. Mote stated that many farmers had planted crops on open lands in the township, relying on the stock law for protection, and that, if exemption were granted, their crops would soon be overrun and destroyed by live stock. The other petitioners stated that, after due consideration, they had reached the conclusion that it was not best for the township to be exempted from the provisions of the stock law, and that they desired their names stricken from the petition and counted among those opposing exemption. These petitions were subscribed and sworn to before officers authorized to administer oaths, on different dates from December 29, 1923, to August 14, 1924.

On August 15, 1924, the cause came on for hearing on the merits, and the petitioners, except Mote and the eleven others whose names were on the original petition of December 11, 1923, moved the court to deny the petitions of Mote and the eleven others who were asking that their names be stricken from the petition for exemption, on the ground that they were parties to the proceedings in the nature of co-plaintiffs, and were not entitled to withdraw therefrom without the consent of their co-plaintiffs or by permission of the court.

The judgment of the court recites as follows: "The court finds that there were sixty-two qualified electors residing in Cypert Township on December 28, 1923, the date the petition for exemption herein was filed in the county court; that of said sixty-two, twelve qualified electors, namely, A. L. Carter, A. J. Mote, N. E. Walls, John Skelton, J. W. Mote, Jim Mote, A. Jackson, Mrs. H. H. Ramey, H. H. Ramey, D. O. Ramey, E. Walls, and S. H. Chapman, have this day filed herein individual petitions asking that their names be stricken from the petition for exemption and that they be counted as remonstrating against the granting of the petition; that the petition asking that said township be exempted herein contains the names of forty of the sixty-two qualified electors of said township, which includes the twelve asking that their names be stricken therefrom."

Upon these findings, the court denied the request of the twelve parties named above to have their names stricken from the petition for exemption, and entered a judgment granting the prayer of the petitioners for the exemption of Cypert Township for a period of five years from January 24, 1924, to which findings and judgment the remonstrators, including the twelve who were seeking to be made remonstrators, excepted, and prosecute this appeal.

The appellants contend that the court erred in overruling the petition of A. J. Mote and the eleven others to have their names stricken from the original petition for exemption of Cypert Township and asking that they be counted as remonstrants against the original petition which they had signed. Section 11 of act No. 239, Acts of 1923, p. 479-485 involved in this action, provides: "After the adoption of this act as herein prescribed, if the qualified electors of any political township want said township exempted from its provisions, they may, after giving twenty days' notice by publication, present a petition to the county court, signed by a majority of the qualified electors of said township, praying that said township be exempted from all or any part of the provisions of this act for a period of not more than five years, and, upon a hearing in open court, if said petitions appear to have been signed by a...