Milsap v. Holland
| Decision Date | 20 January 1933 |
| Docket Number | 4-2839 |
| Citation | 56 S.W.2d 578,186 Ark. 895 |
| Parties | MILSAP v. HOLLAND |
| Court | Arkansas Supreme Court |
Appeal from Washington Circuit Court; John S. Combs, Judge reversed.
Action reversed and case remanded.
W. A Dickson and Price Dickson, for appellant.
Earl Blansett and John Mayes, for appellee.
This case was before this court on appeal at its November term 1931. The opinion on the judgment then rendered appears in 184 Ark., at page 996, 44 S.W.2d 662. The mandate reversing the judgment of the trial court with directions was filed in the lower court, but, not being entered of record, it was re-filed with a motion requesting the court to enter of record the said mandate and to affirm the judgment of the county board of education consolidating the two districts in accordance with the judgment of this court. A reply to that motion was filed by W. N. Holland and others, and upon a hearing of the matter the circuit court ordered the mandate of this court stricken from the files, and that the cause be dismissed for want of jurisdiction of said Supreme Court, the circuit court and the county board of education. From that order and judgment this appeal is prosecuted.
It is the contention of the appellees, and the conclusions reached by the trial court, that the issue presented by the appellees in the instant case was not adjudicated before the circuit court or this court on appeal, and, as it now appears that the notice was not in fact legally given within the rule announced in Texarkana Special School Dist. v. Consolidated School Dist. No. 2, 185 Ark. 213, 46 S.W.2d 631; Shook v. Morrison, Ib. 522, 185 Ark. 522, 47 S.W.2d 1089, and Ellis v. Gann, Ib. 625, 185 Ark. 625, 48 S.W.2d 1103, the order of the county board of education was void, and neither the circuit court nor this court acquired any jurisdiction on appeal; that for that reason the judgment of this court reversing and remanding that of the circuit court was, and is, void, and that the circuit court therefore was justified in making the order last appealed from and its action should here be sustained.
A number of cases from this court and other jurisdictions are cited by the appellees as tending to sustain their contention, but which we find it unnecessary to review, as we are of the opinion that the appellees are in error in their contention, i. e., that the question of jurisdiction was not before the court on appeal to the circuit court from the order of the county board of education consolidating the districts or in this court on appeal from the judgment of the circuit court. The facts out of which this litigation arose are fully stated in Milsap v. Holland, 184 Ark. 996, 44 S.W.2d 662, and from the opinion it will be seen that on appeal to the circuit court that court found the facts and law in favor of the remonstrants and adjudged that the petition for consolidation be dismissed for want of jurisdiction. The opinion in Milsap v. Holland, supra, shows that the county board of education, among other things, found that due notice had been given as required by statute, and in the statement of the case it was said: "Notice of the proposed consolidation was duly given as required by statute and was introduced in evidence."
The judgment of the court appealed from and the opinion of this court on that appeal are sufficient to disclose that the issue as to the jurisdiction of the court was considered and the judgment of this court and its mandate based thereon are binding upon the trial court, and this court...
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Troesken v. Herrington (In re S.H.)
...Supreme Court. We have consistently followed that rule. See Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979) ; Milsap v. Holland, 186 Ark. 895, 56 S.W.2d 578 (1933).Id., citing Fortenberry v. Frazier, 5 Ark. 200 (1843).In this case, the circuit court should have reconsidered its order ......
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Missouri Pac. R. Co. v. Foreman
...& Co. v. Alexander & Co., 180 Ark. 735, 22 S.W.2d 558; American Railway Exp. Co. v. Cole, 185 Ark. 532, 48 S.W.2d 223; Milsap v. Holland, 186 Ark. 895, 56 S.W.2d 578; Postal Telegraph-Cable Co. v. White, 190 Ark. 365, 80 S.W.2d 633; Russwurm v. Helena, 191 Ark. 338, 86 S.W.2d 175; Missouri ......
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Missouri Pacific Railroad Co. v. Foreman
... ... v. Alexander & Co., 180 Ark. 735, 22 ... S.W.2d 558; American Railway Express Co. v ... Cole, 185 Ark. 532, 48 S.W.2d 223; Milsap ... v. Holland, 186 Ark. 895, 56 S.W.2d 578; Postal ... Telegraph-Cable Co. v. White, 190 Ark. 365, 80 ... S.W.2d 633; [196 Ark. 641] ... ...
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Thornton v. State
...entire judgment and conviction, cannot modify that mandate, and Thornton no longer has a conviction against him. See Milsap v. Holland, 186 Ark. 895, 56 S.W.2d 578 (1933) ; Stroud v. Crow, 209 Ark. 820, 823, 192 S.W.2d 548, 549 (1946) (the supreme court cannot amend its opinion after lapse ......