Brumley v. State
| Decision Date | 17 June 1907 |
| Citation | 103 S.W. 615,83 Ark. 236 |
| Parties | BRUMLEY v. STATE |
| Court | Arkansas Supreme Court |
Appeal from Randolph Circuit Court; J. W. Meeks, Judge; affirmed.
Judgment affirmed.
Henderson & Campbell, for appellant.
1. The order of the county court was void for want of jurisdiction in that it shows that the petition was signed by ten citizens, whereas the statute requires that it be signed by ten freeholders; and the order also fails to show that five days' notice in writing had been given to the owners of the land to be affected by the proposed road. Kirby's Dig. §§ 2993-2999. The order was therefore incompetent as evidence. The county court having acquired no jurisdiction, its order was a nullity, and may be collaterally attacked. 1. Black on Judg. 278; Abbott's Trial Brief, Mode of Proving Facts, 518; 51 Ark. 34; 64 Ark 108.
2. It was error to permit E. G. Schoonover, an attorney, to testify as to statements made to him by the defendant. Any statement made by a client to his attorney is privileged and not admissible in evidence, even though no fee is charged by the attorney or paid. 33 Ark. 771.
3. The court erred in refusing the second instruction requested by defendant. 18 L.R.A. 156; 41 Ark. 45; Tiedeman on Lim. Police Power, 394.
William F. Kirby, Attorney General and Dan'l Taylor, Assistant for appellee.
1. An order of a county court establishing a highway is not subject to collateral attack. 47 Ark. 431; Van Fleet on Coll. Attack, 259. Moreover, a judgment is not invalid because it fails to recite each successive step in the establishment of a highway.
2. The second instruction asked by defendant was properly refused. There was no evidence on the part of defendant to support it.
This is an appeal by G. W. Brumley from judgment of the Randolph Circuit Court convicting him of the crime of obstructing a public road in district number 4 of Randolph County known as Skinner Ferry and Glasco Road by building a fence across it. For this offense the defendant was adjudged to pay a fine of five dollars and costs.
On the trial the State introduced an order of the county court showing that a public road had been duly established in 1893, beginning at Skinner's Ferry on the east bank of Current River and going up the east bank of the river about one hundred yards and thence turning east and extending to the Pocahontas and Poplar Bluff road at the corner of Glascoe's field. Counsel for the defendant contend that this order of the county court was void because it recites that the proceedings for the establishment of the road was begun by the petition of ten citizens, instead of ten freeholders, of the county, and because it does not recite that notice was given to the landowners through whose lands the proposed road extended. But the county court in the matter of laying out and establishing the public roads of the county is a court of superior jurisdiction; and when its orders in reference thereto are called in question in a collateral proceeding, the presumption is in favor of their validity. The order establishing the road in this case recites that the petition was filed by ten citizens of the county; and, as there is nothing to show to the contrary, we must presume that they were freeholders as well as citizens. The order recites that notice of the petition 'had been given as required by law," and this was a sufficient showing of notice on a collateral attack when there is nothing to rebut the presumption that notice was given. Pierce v. Edington, 38 Ark. 150.
This case is quite different from the case of Gibney v. Crawford, 51 Ark. 34, 9 S.W. 309. The jurisdiction of the court in that case depended altogether upon the statute under which the proceedings were had, and this court held that the jurisdictional facts required by the statute must affirmatively appear. But the jurisdiction of the county court in matters relating to the public roads of the county is conferred by the Constitution. Const. 1874, art 7, § 28. While the court must follow the statute in reference to laying out and establishing public roads, this court, where a collateral attack is made on the order of a county court establishing a public highway, will, in the absence of a showing to the contrary, presume that the statute was followed, and that the order is valid.
For this reason the court did not err in refusing the first instruction asked by the defendant that it must affirmatively...
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... ... roadway by the public had not been adverse, but permissive, ... is not against a preponderance of the evidence. In ... Brumley v. State, 83 Ark. 236, 103 S.W ... 615, among other [168 Ark. 52] things, we said: "When ... the public use a road running through open and ... ...
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... ... Rankin, 174 Ark. 428, 295 S.W. 52; and ... Bridwell v. A. P. & L. Co., 191 Ark. 227, ... 85 S.W.2d 712 ... In ... Brumley v. State, 83 Ark. 236, 103 S.W ... 615, also relied on by appellant, the court in describing a ... part of the way involved, said: "They were dirt ... ...
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...judgments of the county court of which complaint is made are not void. 34 Ark. 105; 51 Ark. 34; 53 Ark. 476; 55 Ark. 323; 59 Ark. 483; 83 Ark. 236. If, however, it is that the statutory requirements as to abstract of title, etc., are jurisdictional, it is contended that those requirements w......
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Martin v. Bond, 4-8834.
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