Drainage Dist. No. 7 of Craighead County v. Stuart

• Decision Date: 13 May 1912
• Citation: 147 S.W. 460
• Parties: DRAINAGE DIST. NO. 7 OF CRAIGHEAD COUNTY v. STUART et al.
• Court: Arkansas Supreme Court

147 S.W. 460

DRAINAGE DIST. NO. 7 OF CRAIGHEAD COUNTY v. STUART et al.

Supreme Court of Arkansas.

May 13, 1912.

Appeal from Circuit Court, Craighead County; Frank Smith, Judge.

Proceedings for the establishment of Drainage District No. 7 of Craighead County, in which James A. Stuart and others became parties. From an order of the circuit court adjudging that the district was illegally established, rendered on appeal from an order of the county court establishing the district, the district appeals. Reversed and remanded, with directions to dismiss the appeal.

On the 6th day of July, 1909, a petition was filed in the county court of Craighead county for the formation of a drainage district under the provisions of chapter 46, §§ 1414 to 1450, inclusive, of Kirby's Digest. On the 5th of April, 1910, James A. Stuart and others became parties to the proceeding by filing their remonstrance against establishing the district. On the 3d day of September, 1910, the county court made a final order establishing the district. On the 10th day of September, 1910, Stuart and others filed an affidavit and bond for appeal. The bond was signed by the remonstrants, Stuart and others; but no one signs the bond who is designated therein as surety. The bond shows that it was approved by the county judge October 5, 1910. The indorsement on the affidavit and bond is as follows: "On this day the affidavit and bond of J. A. Stuart for appeal from the judgment of the county court in the matter of drainage district No. 7 is by the court examined and approved, and prayer granted."

On February 20, 1911, F. M. Gowan and others filed in the office of the county clerk an affidavit, in which they set up "that they were owners of lands upon which assessments had been made for the construction of drainage district No. 7 of Craighead county, Arkansas, and that they felt aggrieved at the judgment and order rendered in the said cause confirming the final report of the viewers and civil engineer and the assessments against their lands, and ordering the sale of the said construction, and that this affidavit is made for the purpose of obtaining an appeal from said order and judgment to the circuit court of Craighead county." The county court entered an order on February 20, 1911, in which it is recited, among other things, "that the appeal prayed for is hereby granted upon petitioners giving bond."

Counsel entered into the following stipulation: "It is agreed by counsel representing the respective parties that the bond of J. A. Stuart may be treated in this case as the bond of F. M. Gowan and A. J. Burkeen et al., who filed their affidavit for appeal in the Craighead county court on February 11, 1911. The attorney for the ditch district does not thereby concede in any measure the fact that Gowan and Burkeen had properly perfected their appeal."

Before going to trial in the circuit court, the attorney for the drainage district filed a motion to dismiss the appeal, in which it is alleged "that the prayer for appeal does not state the matters appealed from, and does not specify a single particular matter of which they were aggrieved in their motion for appeal; that the motion and prayer for appeal were not in the manner and form prescribed by statute;" and, further, "that the prayer for appeal was not filed at the time and in the manner prescribed by statute; that the order granting the appeal was not filed within time to give the court jurisdiction; that no bond had been filed for costs; that the prayer for appeal and order granting said appeal were not of record within the time, as required by law; that the appeal does not specify the matters appealed from, as required by law; wherefore appellee prays that this appeal be dismissed for want of jurisdiction." The circuit court did not rule on the motion.

The court heard the cause upon the record of the county court incorporating and organizing the drainage district, and upon oral evidence, which is set forth in the bill of exceptions; and the court found that the district was illegally established, and entered a judgment releasing the owners of the property "from the payment of any cost or tax extended against their property on account of the proposed betterments." The appellant filed a motion for a new trial, in which it assigned as error "the overruling of the motion of appellee [appellant here] to dismiss the appeal of Stuart and Gowan," and "that the judgment was against the weight of the evidence, and was void in attempting to dissolve the drainage district."

Basil Baker, of Jonesboro, for appellant. Hawthorne & Hawthorne, of Jonesboro, and Huddleston & Taylor, of Paragould, for appellees.

WOOD, J. (after stating the facts as above).

The circuit court was without jurisdiction, and should have dismissed the appeal.

Section 1428 of the drainage law under consideration provides as follows: "Any person or corporation may appeal from the order of the court (establishing the district), and upon such appeal may determine either of the following questions: First, whether such improvement will be conducive of health, convenience or welfare, or the location of any part changed; second, whether the route is practicable; third, whether the compensation has been allowed for property appropriated; fourth, whether proper damages have been allowed for property affected by the improvements. The appellant shall pray an appeal to the circuit court and file a motion in writing specifying therein the matters appealed from, which motion shall be filed and recorded. The county court shall then fix the amount of bonds...