Ex parte Morton

Decision Date22 December 1900
Citation60 S.W. 307,69 Ark. 48
PartiesEX PARTE MORTON
CourtArkansas Supreme Court

Appeal from Cleburne Circuit Court, E. G. MITCHELL, Judge.

STATEMENT BY THE COURT.

S. J Morton and other adult inhabitants residing within three miles of the Heber High School building, on the 1st January 1900, filed a petition asking the county court of Cleburne county to make an order prohibiting the sale of intoxicating liquors within three miles of said school house. The county judge made the following indorsement on the petition "Ignored entirely." P. C. Menees, County Judge January 1, 1900." Thereupon the petitioners prayed an appeal to the circuit court. The petition came on for hearing before the circuit court, and the prayer of the petition was granted, and an order made forbidding the sale of intoxicating liquors within the territory named. The record then recites that thereupon the county judge of the county asked that the county be made a party, which request the circuit court refused. To which refusal the county excepted, and prayed an appeal to the supreme court, which was granted.

Judgment affirmed.

J. M. Brice, for appellant.

The county should have been a party, and the application for same should be made to the county judge. Sand. & H. Dig. § 1270; 60 Ark. 516. The county judge is the judge of the interests of the county. 43 Ark. 361. "Ignored entirely," written on the back of the petition by the county judge, is not a final appealable order. 26 Ark. 468; 36 Ark. 200; 19 S.W. 571; 12 Am. & Eng. Enc. Law (1st Ed.), 63; 2 Am. & Eng. Enc. Pl. & Pr. 72; 34 Ark. 117. If there is a judgment, the same must be entered of record as a prerequisite to an appeal. 61 Miss. 228; 24 Ala. 284; 81 Mo. 455; 57 Ark. 585. The petitioner's remedy was by mandamus. 17 S.W. 249; 43 Ark. 62. The circuit court had no jurisdiction of the case, as no affidavit for an appeal was made. Sand. & H. Dig. § 1264; 51 Ark. 344; 65 Ark. 419; 19 Ark. 647; 10 Ark. 308; 11 Ark. 665.

Marshall & Coffman, for appellants.

28 Ark. 478 and 52 Ark. 99 have no application here. Sec. 1270, Sand. & H. Dig., applies to appeals to the supreme court. 60 Ark. 516; 30 Ark. 478; 53 Ark. 287. Supersedeas should be granted in behalf of the county as an independent proceeding. 55 Ark. 200; 52 ib. 213; 45 ib. 219; 9 Cent. Dic. 1802; 3 Ark. 532; 1 Ark. 201; 3 ib. 63; 3 ib. 532; 5 ib. 390, 405, 563; 12 ib. 84, 87; 10 ib. 197; 41 ib. 601; 6 ib. 280. The county should have been a party. 51 Ark. 159; 40 L. R. A. 417; 2 Cent. Dig. Col. 2651. The statement of the clerk cannot be used to contradict the record. 5 Ark. 478; 31 ib. 725; 9 ib. 375; 24 ib. 142. Appeal lies only from final order. 12 Ark. 670; 26 ib. 468; § 1264, Sand. & H. Dig.; 55 Am. Dec. 783; 2 Cent. Dig. Col. 1187, 1413. Filing paper and transcript necessary to give jurisdiction. 5 Ark. 474; 9 ib. 469; 11 ib. 639, 665; 16 ib. 485; 24 ib. 282. The order of the county court should have been spread upon the record. 40 Ark. 290; 53 Ark. 238.

OPINION

RIDDICK, J., (after stating the facts).

We are of the opinion that the county judge had the right to appeal from the order of the circuit court rendered in this case. Our statute provides that when appeals from the orders and judgments of a county court are prosecuted in the circuit or supreme court, the judge of the county court shall defend the same. Sand. & H. Dig., § 1270. This, as heretofore decided, includes the right to take an appeal. Ouachita County v. Rolland, 60 Ark. 516, 31 S.W. 144. Nor do we think it was necessary that either the county or the county judge should be made a party to the proceedings in the circuit court, in order to exercise this right. The circuit judge did not err in refusing to make the county a party, but the county judge still had the right to appeal by virtue of the statute, and the motion to dismiss the appeal must therefore be overruled.

The first contention on the appeal is that the circuit court had no jurisdiction of the case, for the reason that the county court did not make any order in the case that could be appealed from, and also for the reason that the record does not show that any affidavit for appeal was filed.

As to the affidavit, we said that the county judge had the right to defend his order on the appeal to the circuit court, without being formally made a party to the proceeding. As he failed to move the circuit court to dismiss the appeal for want of an affidavit, it is too late to make the objection in this court. Crenshaw v. Bradley, 52 Ark. 318, 12 S.W. 578; James v. Dyer, 31 Ark. 489; Wilson v. Dean, 10 Ark. 308.

It seems to me somewhat doubtful as to whether the county judge made a final order in the case. He endorsed on the petition the words, "Ignored entirely." The ordinary meaning of these words would be that he refused to take notice of it or to consider it, but a different meaning is sometimes given the word "ignore" in law. One meaning of this word, as defined in Webster's dictionary, is to throw out or reject as false or un-grounded, as is said of a bill rejected by the grand jury. We have concluded that this is the sense in which it was used by the county judge. He, in other words, refused the prayer of petitioners, and rejected the petition.

But it is said that if he rejected the petition the order was never placed of record, and the appeal to the circuit court was premature. Our statute provides that appeals shall be granted to the circuit court from all final orders and judgments of the county court at any time within six months after rendition of the same. Sand. & H. Dig. § 1264. A distinction is made between the rendition of the judgment and its entry, and it is not absolutely essential, under this statute, that the judgment should be entered of record before an appeal is taken. Little River County v. Joyner, 57 Ark. 185, 20 S.W. 1082; Gray v. Palmer, 28 Cal 416; Peck v. Courtis, 31 Cal. 207; Anderson v. Mitchell, 58 Ind. 592. The order of the county court should have been placed of record, but, no objection having been made on this ground in the...

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22 cases
  • Chatfield v. Jarratt
    • United States
    • Arkansas Supreme Court
    • 16 d1 Junho d1 1913
    ... ... time begins to run from that date, and not from the date of ... the entry. Ex parte Morton, 69 Ark. 48, 60 S.W. 307 ... We think that view is undoubtedly correct, for the language ... of the statute is plain. There is a ... ...
  • Turner v. Williamson
    • United States
    • Arkansas Supreme Court
    • 10 d6 Fevereiro d6 1906
  • Wulff v. Claibourne
    • United States
    • Arkansas Supreme Court
    • 17 d1 Março d1 1913
    ... ... omission to enter the judgment on that day did not affect its ... validity. Ex Parte Morton, 69 Ark. 48, 60 S.W. 307 ... Although this is a special act the terms of which must be ... fully complied with in proceedings under it, it ... ...
  • Stricklin v. Galloway
    • United States
    • Arkansas Supreme Court
    • 24 d1 Abril d1 1911
    ... ... 308; James v. Dyer, 31 Ark. 489; ... Walker v. Noll, 92 Ark. 148, 122 S.W. 488; ... Crenshaw v. Bradley, 52 Ark. 318, 12 S.W ... 578; Ex parte Morton, 69 Ark. 48, 60 S.W. 307 ...          In the ... cases cited above the court held that the appellee's ... failure to move for a ... ...
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