Householder v. Harris

• Decision Date: 07 February 1921
• Docket Number: 159
• Parties: HOUSEHOLDER v. HARRIS
• Court: Arkansas Supreme Court

227 S.W. 425

147 Ark. 349

HOUSEHOLDER v. HARRIS

No. 159

Supreme Court of Arkansas

February 7, 1921

Appeal from Prairie Circuit Court, Northern District; Geo. W. Clark Judge; affirmed.

Judgment affirmed.

Emmet Vaughan, for appellant.

1. There are only two questions involved here, (1) the right of J. C. Harris and Henry Bull, the only appellees, to appeal from the order of the county court organizing the district and (2) the alleged variance between the plats attached to petitions 1 to 7 and 8 to 13 inclusive.

Appellees having signed the petition for the district and the court having granted it, they had no right to appeal. 217 S.W. 781; 105 N.E. 569. A party can not appeal from a judgment favorable to him. 33 Ind. 267; 217 S.W. 781.

2. The court erred in striking the seven petitions because there is no variance. 138 Ark. 549; 139 Id. 277; 216 S.W 690; 218 S.W. 381. Appellees have no appealable interest, as they obtained all they asked.

Young & Elms and Cooper Thweatt, for appellees.

1. The court did not err in not sustaining the motion to dismiss the appeal of Harris and Bull. One who joins in a petition for a district and obtains all he asks for can not appeal, as he is estopped. 273 Ill. 165; 2 Page & Jones on Tax., art. 1013. 85 Ark. 304 settles the question.

2. There was no error in striking petitions 8 to 13. The plats speak for themselves, and there is no question of variance. Acts 1915, No. 338, § 1 (A); 118 Ark. 119; 209 S.W. 82. The variance is material. 113 Ark. 566. The court properly overruled the motion to dismiss the appeal and the motion to strike 8 to 13 from the files.

OPINION

HUMPHREYS, J.

This is an appeal from the Prairie Circuit Court, Northern District, to reverse a judgment overruling appellants' motion to dismiss an appeal which appellees had taken from the county court, establishing Fairmount Road Improvement District No. 13 of Prairie County, Arkansas; in sustaining appellees' motion to strike petitions 8 to 13, inclusive, from the files; and in setting aside the order of the county court and denying the establishment of said district. Appellees had joined others, under the provisions of act 338, Acts of the General Assembly of 1915, in a petition to the county court to establish said district. For convenience in obtaining signatures, thirteen petitions were prepared and filed, in which the territory to be embraced within the district was similarly described. The plats attached to the first seven petitions embraced not only the territory described in the petitions but 15.45 acres of land in the northeast quarter of the northeast quarter of section 9, township 1 south, range 6 west, and a part of Bayou Two, Prairie Lake. The plats attached to petitions 8 to 13, inclusive, did not include any part of said section 9, township 1 south, range 6 west, or any part of Bayou Two, Prairie Lake. Appellee J. C. Harris signed the petition numbered 1, and appellee Henry Bull signed petition No. 4. After the petitions were signed, they were all filed as one petition as a basis for procuring the establishment of said district. A remonstrance, in which appellees J. C. Harris and Henry Bull joined, was filed against the establishment of the district, on the ground that there was a material variance between the plats attached to petitions 1 to 7, inclusive, and those attached to petitions 8 to 13, inclusive, thereby rendering the territory to be embraced in said district, as well as the boundaries thereof, uncertain. In the remonstrance they sought, along with others, to have their names stricken off the original petitions, on the ground that their signatures had been secured through fraud.

The cause was submitted to the court upon the petitions, with the plats attached to each, the remonstrance and the evidence of William Radican, surveyor of Prairie County, who testified from the field notes that 15.45 acres of that part of section 9, township 1 south, range 6 west, was included within the boundaries on the plats attached to the first seven petitions, but not included within the boundaries on the plats attached to petitions 8 to 13 inclusive, which resulted in the judgment heretofore set out in substance.

The act, under which it was sought to establish the district authorizes the circulation among the landowners of the original petition, or such number of exact copies thereof as may be deemed necessary, and the consolidation of said petitions as one for purposes of filing and hearing. The same act requires that a plat shall be filed with the petition, upon which the boundaries of the proposed district shall be plainly indicated. This court, in construing the act in Tarvin v. Road Improvement District No. 1 of Perry County, 137 Ark. 354, said: "The map or plans, specifications and estimate of costs must be regarded as a part of the petition for the purpose of determining whether the proposed improvement is certainly and definitely described." It has been uniformly held by this court that the recitals of a petition to form a road district must conform to the requirements of the statute, because the petition is jurisdictional. Cox v. Road Improvement Dist. No. 8 of Lonoke County, 118 Ark. 119. The plats accompanying the petition, being a part thereof, must necessarily show the correct boundaries of the district, and not conflict with the recitals in the petition proper. So it follows that, if the plats attached to the several petitions as a part thereof show different boundaries of the proposed district, the petitions cannot be exact copies of each other. In that event the petitions would not conform to the requirements of the statute. ...