Gibson v. Davis

Decision Date11 December 1939
Docket Number4-5664
Citation134 S.W.2d 15,199 Ark. 456
PartiesGIBSON v. DAVIS
CourtArkansas Supreme Court

Appeal from Cleveland Circuit Court; DuV al L. Purkins, Judge affirmed.

Judgment affirmed.

O E. Gates, for appellant.

D A. Bradham, B. Ball and Carroll C. Hollensworth, for appellee.

OPINION

MCHANEY, J.

Appellants are qualified electors in one or more of school districts 11, 13, and 47 of Cleveland county. Desiring to have said districts abolished and consolidated into a new district to be known as Hurricane School District No. 11, they presented their petition to the county court of said county for an order submitting to the qualified electors of the three districts the question of dissolutions and consolidation. Acting on said petition, said court made and entered an order directing the county examiner to publish a notice of the filing of said petition, for the time and in the manner prescribed by law, and the date, time and place of a hearing to be had thereon, which notice was given. At the hearing held pursuant to said notice, the court found the petition was signed by the requisite number of electors and made and entered an order submitting the question to the qualified electors at the annual school election to be held on March 18, 1939. The election was held, the returns thereof made to the court, and it was found that the districts voted as follows:

In district No. 11,

for 27;

against 40

" " " 13,

" 25;

" 6

" " " 47,

" 14;

" 2

Totals in all three,

66

48

The court, therefore, found there was a majority of 18 votes for the question in the territory affected, and made and entered an order dissolving the three districts and consolidating them into one district in accordance with the prayer of the petition.

Appellees who are the directors of district No. 11 and the district, prayed and were granted an appeal to the circuit court, where appellants questioned by demurrer the sufficiency, both as to form and substance, as also the time of filing, of the two affidavits for appeal which were filed by appellees. On a trial de novo in the circuit court, the demurrer was overruled and the order of the county court as above was quashed and set aside. In apt time this appeal followed.

Two questions are argued here for a reversal of the judgment of the circuit court. One is that the court erred in overruling said demurrer. The other is that it erred in quashing the judgment of the county court. We cannot agree with appellant in either contention. The first affidavit for appeal stated: "That the appeal is not taken for the purpose of delay, but that justice may be done to us and to School District No. 11 of Cleveland county." The second is: "do solemnly swear that the appeal taken by us from the judgment rendered is not taken for the purpose of delay," etc., as in No. 1. The right of appeal "from all judgments of county courts" is guaranteed by the Constitution of this state, art. VII, § 33, "to the circuit court under such restrictions and regulations as may be prescribed by law."

Appellants contend, that either or both affidavits are defective in that they fail to aver the identical language used in the statute providing for appeals. Section 2913 of Pope's Digest is the general statute providing for appeals from all final orders and judgments of the county court to the circuit court within six months, and the last sentence of said section provides: "The party aggrieved, his agent or attorney, shall swear in said affidavit that the appeal is taken because the appellant verily believes that he is aggrieved, and is not taken for vexation or delay, but that justice may be done him." It must be admitted that neither affidavit set out above literally complies with this statute. Section 11481 of Pope's Digest is the section of the school law relating to the formation of a new district and the dissolution of others or for the annexation of territory to any district, on a petition "purporting to be signed by a majority of the qualified electors in each district affected." This section provides for appeals to the circuit court on certain grounds and making the findings of the county court otherwise conclusive. We think this section has no application here as the proceeding to dissolve and consolidate the three districts was not taken under said section, but under § 11482.

Section 1 of act 183 of 1925 reads in part as follows: " may prosecute an appeal from any such final order or decision, provided, any such person or persons shall within thirty...

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11 cases
  • Pike Avenue Development v. Pulaski County et al, 00-948
    • United States
    • Arkansas Supreme Court
    • January 18, 2001
    ...which were timely filed. Relying on some cases decided prior to the adoption of this court's Inferior Court Rules, Gibson v. Davis, 199 Ark. 456, 134 S.W.2d 15 (1939), and Tuggle v. Tribble, 173 Ark. 392, 292 S.W.1020 (1927), Pike Avenue argues that, even if its affidavit praying for appeal......
  • Baker v. Allen
    • United States
    • Arkansas Supreme Court
    • June 26, 1950
    ...County, Ark., 230 S.W.2d 44. In the last mentioned case the failure to file the bond was held to be fatal to the appeal. Gibson v. Davis, 199 Ark. 456, 134 S.W.2d 15, held that Act 183 of 1925 was not repealed by Act 169 of The Legislature has plenary power to prescribe the time and manner ......
  • McLeod v. Richardson, 4-6870.
    • United States
    • Arkansas Supreme Court
    • June 22, 1942
    ...appear in the current Digest — this, no doubt, upon the assumption it had been repealed by implication. It was held in Gibson v. Davis, December, 1939, 199 Ark. 456, 134 S. W.2d 15, the Act had not been Act 247, approved March 29, 1933, abolished county boards of education and the office of......
  • McLeod v. Richardson
    • United States
    • Arkansas Supreme Court
    • June 22, 1942
    ... ... Digest--this, no doubt, upon the assumption it had been ... repealed by implication. It was held in Gibson v ... Davis, 199 Ark. 456, 134 S.W.2d 15 (December, 1939) ... the Act had not been repealed ...          Act ... 247, approved March ... ...
  • Request a trial to view additional results

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