Madison County v. Nance
| Decision Date | 24 November 1930 |
| Docket Number | No. 10.,10. |
| Citation | 182 Ark. 775,32 S.W.2d 1073 |
| Parties | MADISON COUNTY v. NANCE, Special Adm'r. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Madison County; Frank Rice, Special Judge.
J. A. Stewart filed a claim against Madison County in the county court. The claim was allowed in a small amount after claimant's death, together with claim of Kelly Brashears, and deceased claimant's widow and heirs and Kelly Brashears appealed to the circuit court, Frank Nance being appointed special administrator. Judgment for claimants, and the County appeals.
Reversed and remanded.
C. D. Atkinson and John Mays, both of Fayetteville, for appellant.
George A. Hurst, of Fayetteville, and J. B. Harris, of Huntsville, for appellee.
On March 20, 1928, J. A. Stewart filed the following claim in the county court of Madison county:
Affidavit to claim was made by H. J. Brashears. On the 15th of October, 1929, the court allowed the claim in the sum of $25. The order allowing the claim in the sum of $25 recited that J. A. Stewart had died, that no administration on his estate was pending, and that Mrs. E. J. Glass, Mrs. Mollie Goodwin, Mrs. Mattie Brashears, and J. C. Stewart are his children and only heirs at law, and that Mrs. Catherine Stewart is his widow; that the widow is entitled to one-third of the amount allowed, and that each of said heirs is entitled to one-fourth of the balance and ordered warrants drawn to pay them. An appeal was taken to the circuit court by the widow and heirs on February 17, 1930. Kelly Brashears on March 20, 1928, filed claim in the county court for $125 for right of way and $60 for posts, making a total of his claim $185. The court allowed Brashears' claim in the sum of $25. Brashears on March 3, 1930, filed affidavit for appeal to circuit court. In circuit court on March 3, 1930, Brashears filed an amended account claiming $500 instead of $185. On the same day the county filed a motion to strike the amended claim, which motion was by the court overruled, and the county excepted. On March 3, 1930, the heirs and widow of J. A. Stewart, deceased, filed an amended claim for $1,000 instead of $200. Motion to strike amended claim was made, overruled, and exceptions noted. After a motion by the county for continuance and motion to make the contractor a party had been filed and overruled, the cases were consolidated, and Frank Nance was appointed special administrator of the estate of J. A. Stewart, deceased. The parties announced ready for trial, a jury was selected, and, after hearing the evidence, returned a verdict in favor of Kelly Brashears for $125 and in favor of Frank Nance, special administrator, in the sum of $500. Judgments were entered for the amounts, and the case is here on appeal.
The undisputed evidence shows that the property of appellees was taken for public use, and the court was therefore correct in instructing the jury to find for the plaintiff in some amount. The Constitution provides "The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without compensation therefor." Article 2, § 22, Constitution.
The fact that the county did not have the money to pay for property was immaterial. If it could not pay for appellees' property, it could not take it. Independence County v. Lester, 173 Ark. 796, 293 S. W. 743.
Appellants contend that the heirs of J. A. Stewart could not prosecute the appeal. J. A. Stewart had been dead more than a year when the appeal was taken, and there was no administration.
"When all the heirs of any deceased intestate and all persons interested as distributees in the estate of such intestate are of full age, it shall be lawful for them to sue for, recover and collect all demands and property left by the intestate, and to manage, control and dispose of such estate without any administration being had thereon in all cases where the creditors of such estate consent or agree for them to do so, or where they have paid or satisfied all valid debts and demands against such intestate, or where such intestate was, at the time of his death, under no legal liability, either matured or incipient to any person; and in every such case after they have taken such control and management of the estate no letter of administration shall be granted thereon, or, if granted, the same shall, on their application, be revoked." Section 1, C. & M. Digest.
The heirs had the right to sue, and it was unnecessary to appoint a special administrator. It was lawful, however, for the court to make the appointment. C. & M. Digest, § 1050. It is insisted that the court erred in...
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Crittenden County v. Williford
...us to Sharp County v. Northeast Arkansas Planning and Consulting Company, 275 Ark. 172, 628 S.W.2d 559 (1982) and Madison County v. Nance, 182 Ark. 775, 32 S.W.2d 1073 (1930) where we held that cases tried de novo in circuit court on appeal from county court are limited to the same parties ......
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...original jurisdiction, and this it cannot do. McLain v. Miller County, 180 Ark. at 835, 23 S.W.2d at 267. See also Madison County v. Nance, 182 Ark. 775, 32 S.W.2d 1073 (1930) (new pleadings and new issues cannot be filed in circuit court in an appeal from county court due to lack of origin......
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