Mammoth Spring Sch. Dist. No. 2 v. Fairview Sch. Dist. No. 7

• Decision Date: 01 April 1935
• Docket Number: No. 4-3813.,4-3813.
• Citation: 80 S.W.2d 615
• Parties: MAMMOTH SPRING SCHOOL DIST. NO. 2 v. FAIRVIEW SCHOOL DIST. NO. 7.
• Court: Arkansas Supreme Court

Page 615

80 S.W.2d 615

MAMMOTH SPRING SCHOOL DIST. NO. 2 v. FAIRVIEW SCHOOL DIST. NO. 7.

No. 4-3813.

Supreme Court of Arkansas.

April 1, 1935.

Appeal from Circuit Court, Fulton County; J. L. Bledsoe, Judge.

Proceeding for the annexation of Fairview School District No. 7 to Mammoth Spring School District No. 2. From an adverse judgment, Mammoth Spring School District No. 2 appeals.

Affirmed.

John C. Ashley, of Melbourne, and Oscar E. Ellis, of Salem, for appellant.

R. L. Bickley, of Mammoth Spring, and W. J. Schoonover, of Pocahontas, for appellee.

BUTLER, Justice.

This is the second appeal in this case. The first appeal was from the judgment of the trial court dismissing the appeal from the county court because of a deficient bond. The case came to this court styled "Fairview School District No. 7 v. Mammoth Spring School District No. 2," and has been so styled through all subsequent proceedings. The judgment was reversed and the case remanded, this court holding that, while the bond was deficient, it might be amended. Fairview School District No. 7 v. Mammoth Spring School Dist. No. 2, 189 Ark. 74, 70 S. W.(2d) 502.

This proceeding began in the county court to annex Fairview School District No. 7 to Mammoth Spring School District No. 2. In that court an order was made consolidating the districts and an appeal was prosecuted to the circuit court. On remand to the circuit court, the case was tried, and resulted in a judgment denying the consolidation. From that judgment is this appeal.

The mandate was filed after the commencement of the term of the court. Appellant petitioners moved for a continuance, asserting it was entitled to this under section 1271 Crawford & Moses' Digest. The refusal of the court to continue the case is the first ground on which a reversal is asked.

On remand with leave to amend bond, a bond was substituted for the first bond, held to be insufficient, with E. L. Stevenin, one of the remonstrants to the petition for consolidation, as principal and other persons as sureties thereon. Appellants moved to dismiss the appeal (a) because there was no affidavit or bond filed within thirty days after order of the county court sought to be appealed from by any party entitled to appeal or party to the record; (b) "that there had been no bond as required by law given," because the substituted bond does not amend the original bond but is another and different bond having a different principal, and is not such a bond as the law provides, because, further, its obligation does not run in favor of petitioners on the petition for consolidation or the officers of the court, but in favor of Mammoth Spring School District No. 2, which was not a party to the suit.

The object of the statute (section 1271 of the Digest), providing for filing of a mandate with the clerk and for reasonable notice to be given to the adverse party or his attorney of record before the commencement of the term, was to give ample opportunity to said party to make preparation for another trial. Where there is failure to comply with the statute, the refusal of the trial court to continue the cause is not ground for reversal where no prejudice is shown to have resulted to the party asking the continuance. St. Louis, I. M. & S. Ry. Co. v. Sweet, 60 Ark. 550, 31 S. W. 571; Soudan Planting Co. v. Stevenson, 100 Ark. 384, 389, 140 S. W. 271.

The mandate was filed in open court and one of the attorneys for the appellant was present. This was on September 19, 1934. On October 5th, following, appellant's attorneys were notified by letter of the filing of the mandate and the case was set for trial October 29, 1934. There was no showing of any prejudice resulting to the appellant by reason of the overruling of this motion for continuance, and therefore, under the rule announced in the cases cited, the judgment of the trial court will not be reversed on this ground.

Neither is there any merit in the other contentions made. The affidavit for appeal was made within thirty days after the judgment of the county court appealed from. The affiant was secretary of the appellee's district and one of the signers of the remonstrance to the petition for consolidation. He was accordingly a party to the record in the county court and his affidavit inured to the benefit of all parties in interest, whether it be the school district, as such, or the electors and patrons residing therein.

This court held that the bond might be amended. Whether this was accomplished by the signatures of sureties on the bond first filed or by the execution of a new and different bond is immaterial if the purpose for which the bond is required is served. That purpose was the guarantee of the payment of costs by the party appealing in the event the appeal was abandoned, dismissed, or adverse judgment given against him on the merits. Counsel for appellant district have treated the district as the real party in interest, styling it as "plaintiff" in their motions filed in court, and thus the remonstrants treated it. If it had been thought the naming of the school district as obligee in the bond was improper, specific attention of the trial court should have been called to the supposed defect.

Appellant sought at the trial on appeal to offer in evidence certain admissions made by an attorney during the course of the hearing in the county court to the effect that "the petition for consolidation contained a majority of the qualified electors of Fairview School District." To the refusal of the court to permit the introduction of this testimony, objection was made, and is one of the assignments of error pressed in argument of counsel for appellant. The cases cited from our own court to sustain this contention are not in point. Cox v. Harris, 64 Ark. 213, 215, 41 S. W. 426, 62 Am. St. Rep. 187, merely announced the familiar doctrine that a litigant is not allowed to...