Hempstead County v. Howard County

• Decision Date: 27 April 1889
• Citation: 11 S.W. 478,51 Ark. 344
• Parties: HEMPSTEAD COUNTY v. HOWARD COUNTY
• Court: Arkansas Supreme Court

11 S.W. 478

51 Ark. 344

HEMPSTEAD COUNTY v. HOWARD COUNTY

Supreme Court of Arkansas

April 27, 1889

CROSS-APPEAL from Howard Circuit Court, GEO. P. SMOOTE Special Judge.

Judgment affirmed.

W. P Feazell, for appellant.

1. No prayer for appeal was made or filed with the affidavit, and no order granting the appeal by the county court or clerk of the circuit court, and the court had no jurisdiction. Mansf. Dig., 1436; 26 Ark. 414; 21 Ark. 93; 9 Ib., 128; 15 Ib., 169; 31 Ib., 725.

2. The transcript was not properly authenticated, the certificate was not tested with the seal of the county court. 6 Ark. 451; 6 Wall. 556; 6 Ohio 11; 1 N. H, 139; 3 Hawks, 226; 3 Dev., 279; 22 How., 46; 9 Peck., 446; 15 Peck., 446; 30 Me. 170; 2 Gilen, (Ill.) 151; 10 Me. 204.

The transcript was a nullity and could not be amended. Freeman Ex., sec. 70; Bliss Plead., 249; Drake Att., sec. 174, a.

3. None of the bonds became a legal debt of Hempstead county until they were sold or negotiated, and the question arises, were any of these bonds disposed of before Howard county was created? If so, what amount? The burden is on Hempstead. Reviews the testimony and contends that the evidence is not sufficient to sustain the findings of the court.

4. It was error to render judgment for 6 per cent. interest; this is in violation of Art. 16, sec. 1, Const. 1874; 36 Ark. 89.

D. W. Jones and R. B. Williams, for appellees.

1. No formal prayer for appeal in writing is necessary, or required by statute. The affidavit is all that is necessary, where the original papers and transcript of the record entries are transmitted as required by statute. See Mansf. Dig., secs. 1436, 1438.

2. The filing of the papers and record entries in the circuit court gave it jurisdiction. Mansf. Dig., secs. 1436-8; 35 Ark. 298, 302; 43 Ark. 33, 40, and it had the right to amend the transcript. Mansf. Dig., sec. 5081; 47 Ark. 373; 48 Ib., 94; Mansf. Dig., secs. 50, 86; 9 Ark. 469; Ib., 497.

On the cross-appeal of Hempstead, contend that the whole $ 50,000 of bonds was a part of the indebtedness of Hempstead county when Howard county was created, within the meaning of the 4th sec. of the act of April 17th, 1873. 34 Ark. 240. See, also, 36 Ib., 378; 37 Ib., 339; 44 Ib., 317.

OPINION

COCKRILL, C. J.

This is a proceeding instituted under the act of April 17th, 1873, creating Howard county, for the purpose of determining what portion of the indebtedness of Hempstead, one of the counties which furnished territory for the formation of Howard, should be paid by the new county. The judgment of the county court where the proceeding originated awarded nothing to Hempstead county, and the latter prosecuted an appeal to the circuit court by filing the statutory affidavit with the clerk of that court who caused the original papers and a transcript of the court's proceedings to be filed in his office within the time prescribed for prosecuting such appeals. Howard county moved to dismiss the appeal from the judgment of the county court, (1) because there was no formal prayer addressed to the circuit clerk for an appeal, and (2) because the county clerk, who is ex-officio circuit clerk, had affixed the seal of the latter court to his certificate of the proceedings in the county court. But the circuit court permitted Hempstead county to show by parol that an application in writing for an appeal had been made to the circuit clerk; caused the clerk to amend his certificate by affixing thereto the seal of the county court, and overruled the motion. It is seriously argued that the court erred in both particulars.

The repeated decisions of this court discountenancing irregularities of procedure which do not affect the rights of parties upon the merits, and recognizing in the circuit court the power of amending its process and records as well as pleadings, to any extent short of impairing the substantial rights of the parties, leave no room for argument against the action of the court in this instance. See Hall v. Lackmond, 50 Ark. 113, 6 S.W. 510, and Sannoner v. Jacobson, 47 Ark. 31, 14 S.W. 458 and cases cited.

The prayer for an appeal contemplated by the statute, (Mansf. Dig., sec. 1436,) is addressed to the clerk for the purpose of apprising him that an appeal is desired. If the statutory affidavit for an appeal is presented to him without a formal prayer, and he acts upon it and causes the appeal to be perfected, the requirements of the statute have obviously been fulfilled, for the only end the prayer could effect has been attained. It was useless, therefore, for the circuit court in this case, even to have required the showing that a prayer for an appeal had been lodged with the clerk. But Howard county was not prejudiced by the showing.

The other objection is only technical. Whatever else might be said of it, it is certain that the circuit court acquired jurisdiction of the proceeding upon the filing of the original papers in that court in pursuance, of the appeal prosecuted by Hempstead county, (Mansf. Dig., sec. 1438,) and the court thereafter possessed the undoubted power to cause the county clerk to certify a transcript of the record entries of the county court had in the cause appealed.

The contention upon the merits of the cause was as to the amount of the indebtedness of Hempstead county at the time Howard was created; and that controversy is narrowed here to the question, what amount of court house and jail bonds were an outstanding indebtedness against Hempstead county on the 17th day of April, 1873, when the act creating Howard county became a law?

In the autumn of 1872 the Hempstead county authorities caused $ 50,000 in negotiable bonds to be prepared for issue and placed them in the hands of county commissioners to be negotiated by them for the purpose of raising a fund to build a court house and jail. It is contended on the part of Hempstead county that the whole of this sum became a debt of that county prior to the...