Lightle v. Kirby, 4-4784.

• Decision Date: 27 September 1937
• Docket Number: No. 4-4784.,4-4784.
• Parties: LIGHTLE et al. v. KIRBY et al.
• Court: Arkansas Supreme Court

Page 896

108 S.W.2d 896

LIGHTLE et al. v. KIRBY et al.

No. 4-4784.

Supreme Court of Arkansas.

September 27, 1937.

Appeal from White Chancery Court; Frank H. Dodge, Chancellor.

Suit by certain owners of property in an improvement district against P. L. Kirby and others, commissioners of the district, wherein Margaret Lightle intervened. From a decree for plaintiffs, intervener and the commissioners appeal.

Affirmed.

J. E. Lightle, Jr., of Searcy, for appellants.

Gregory & Taylor, of Searcy, for appellees.

FRANK G. SMITH, Justice.

Street Improvement District No. 6 of the City of Searcy includes within its boundaries a portion of a street which is a part of the State Highway System, and on that account the improvement district received a contribution from the State of Arkansas under the provisions of Act No. 11 of the Acts of the Second Extra Session of 1934, p. 28.

Margaret Lightle owns lots in the improvement district abutting the state highway, and, when the contribution to the improvement district was made, she brought suit against the commissioners of the district, praying that they be required to devote the contribution to reducing the assessments of property in the district adjacent to the state highway. The commissioners of the district filed a demurrer to the complaint, which was overruled, and, when they declined to plead further, a decree was entered awarding the relief prayed. The date of this decree was May 31, 1935.

Thereafter other owners of property in the district which does not abut on the state highway, who were not parties to nor advised of the pendency of the Lightle suit, brought suit against the commissioners of the district, praying that the state's contribution to the district be applied to the reduction of the assessments of all the lots in the district proportionately. Miss Lightle intervened in this suit, and she and the commissioners of the improvement district pleaded the decree of May, 1935, in bar of this suit. The relief prayed was granted, and she and the commissioners of the district have appealed from this last decree, which, in effect, annuls the decree of May, 1935.

It is conceded that the decree of May, 1935, is erroneous, and that it was error to devote the state's contribution to the exclusive benefit of the lots abutting the state highway. In the recent case of Jackson v. Foster, 192 Ark. 712, 94 S.W.(2d) 113, which presented this exact question, it was held that the state's contribution should not be applied to the reduction of the taxes against the lands fronting on the state highway to the exclusion of lands that do not front on such highway, but should rather be applied to the proportionate reduction of the assessments of all the lands in the improvement district.

It is argued, however, that the decree of May, 1935, though erroneous, has become final, as no appeal was prosecuted from it within the time limited by law. The argument is that in this first suit, in which the commissioners were made defendants, they represented the district and all the property owners in it, and that the decree is res adjudicata of the right to grant the relief prayed in the second suit.

In support of this contention we are cited to cases like that of Howard-Sevier Road Imp. Dist. No. 1 v. Hunt, 166 Ark. 62, 265 S.W. 517, where it was held that a decree in a suit by certain taxpayers, who had sued in their own right and on behalf of all other taxpayers, to have...