Hazen v. City of Booneville

• Decision Date: 17 January 1977
• Docket Number: No. 76--44,No. 1,76--44,1
• Citation: 545 S.W.2d 614,260 Ark. 871
• Parties: Alvin HAZEN et al., Appellants, v. The CITY OF BOONEVILLE, Arkansas, et al., Appellees
• Court: Arkansas Supreme Court

Page 614

545 S.W.2d 614

260 Ark. 871

Alvin HAZEN et al., Appellants, v. The CITY OF BOONEVILLE, Arkansas, et al., Appellees.

No. 76--44.

Supreme Court of Arkansas, Division No. 1.

Jan. 17, 1977.

Wayland A. Parker, Greenwood, for appellants.

C. Richard Lippard, Booneville, for appellees.

FOGLEMAN, Justice.

Appellants commenced this action by filing their petition in the chancery court on June 25, 1974, as citizens, residents, taxpayers and property owners situated in the Annex to Street Improvement District No. 1 of the City of Booneville. They contended there and here that both the order creating the annex and the assessment of benefits in the annexed territory were void. Appellants state three points for reversal, but all are argued together in appellants' brief. In it, appellants contend that the failure of the city council to act upon the petition for the annexation within two years allotted by Ark.Stat.Ann. § 20--108 made the council's ordinance annexing the territory described in the petition and the assessments of benefits thereunder null and void. That section provides that a petition for the creation of a municipal improvement district shall become void unless it has been acted upon within two years from the date of its filing.

The fallacy in appellants' approach lies in their assumption that § 20--108 applies to petitions for annexation. We find nothing in the language of the statute providing for annexation of territory to a municipal improvement district (Act 280 of 1919, appearing as Ark.Stat.Ann. § 20--134 (Repl. 1968)) indicative of a legislative intent that Ark.Stat.Ann. § 20--108 (§ 3 of Act 64 of 1929 as amended) have any application to an annexation proceeding. Nor do we find anything in Act 64 of 1929 on which to base a finding of such legislative intent.

Appellants also argue that the court erred in granting appellees' oral motion to dismiss that portion of the complaint alleging the invalidity of the assessments of benefits. The basis of this argument is that the court, in effect, granted a summary judgment, without following the procedures required by Ark.Stat.Ann. § 29--205, 29--203 and 29--202 (Repl. 1962). This issue was waived because it was not raised by an objection on his ground in the trial court. We cannot consider it for the first time on appeal. Ragge v. Bryan, 249 Ark. 164, 458 S.W.2d 403. To the contrary, appellants, insisting that § 20--108 governed, then offered to prove that the record showing that the petitions were filed in 1969 was incorrect and that the petitions were actually filed some two years earlier. Appellants also asked to be allowed to prove all the other allegations of their complaint. The trial court not only heard evidence on one issue, i.e., whether Street Improvement District No. 1 of the City of Booneville was in existence when the additional territory was annexed to it, but it also advised appellants' counsel that he might make an offer of proof on other issues.

No argument is made in appellants' brief that the chancellor erred in holding that Street Improvement District No. 1 was 'a live, viable street improvement' and that the face of the record disclosed that the attack made by appellants was barred by the applicable statute of limitations, Ark.Stat.Ann. § 20--134 (Repl. 1968). No authority to support appellants' position on these points is cited. Failure to argue a point...