Mobley v. Conway County Court

• Decision Date: 25 February 1963
• Docket Number: No. 5-2905,5-2905
• Parties: Robert J. MOBLEY, Appellant, v. CONWAY COUNTY COURT and its Judge, Tom Scott, Appellee.
• Court: Arkansas Supreme Court

Page 122

365 S.W.2d 122

236 Ark. 163

Robert J. MOBLEY, Appellant, v. CONWAY COUNTY COURT and its Judge, Tom Scott, Appellee.

No. 5-2905.

Supreme Court of Arkansas.

Feb. 25, 1963.

Rehearing Denied March 18, 1963.

Phillip H. Loh, Morrilton, for appellant.

Nathan Gordon and Felver A. Rowell, Jr., Morrilton, for appellee.

McFADDIN, Justice.

The appellant, as a citizen and taxpayer, filed a petition in the Conway Circuit Court praying for a writ of mandamus against 'The Conway County Court and its Judge, Tom Scott,' as sole defendant.

The petition for mandamus, along with the amendment thereto, alleged: that the Collector of Conway County in transcribing and certifying the list of persons who paid poll tax, failed to include with the name of the poll tax payer his residence, post office address, voting precinct, and school district, all of which information is required by § 3-227, Ark.Stats.; that the County Clerk likewise failed in the same particulars; and that the Morrilton Headlight, in printing the list of poll tax payers, likewise failed in the same particulars. The petition alleged that § 3-227, Ark.Stats. 'makes it mandatory upon the County Court to enforce the provision of said Act by deducting sums from the Collector for errors made in transcribing and certifying poll tax receipts * * * and the defendant refuses to assess and withhold penalties from sums due the collector of Conway County.' The prayer of the petition was: 'Plaintiff prays a writ of mandamus from this Court to require the defendant to comply with the laws of Arkansas § 3-227 Ark.Stats.'; and the prayer of the amendment was for an order 'to compel the defendant to enforce such statute (§ 3-227 Ark.Stats.) by collecting the penalties owed by the Collector, Clerk, and printer for the errors committed by them.'

To the petition and amendment the defendant filed a demurrer, ¹ and also a motion to dismiss. The Court reserved decision on these two defensive pleadings until the plaintiff had offered all desired evidence; and then the Court overruled the defensive pleadings, held that the plaintiff's proof was insufficient to grant the prayed relief, and dismissed the complaint.

From that adverse judgment the plaintiff, as appellant, brings this appeal, and urges a threshold question, which is that the defendant did not file an answer within the time provided by § 33-107 Ark.Stats., and the Trial Court should have granted the plaintiff the prayed injunction because of defendant's default. There are several answers to this threshold question. In the first place, § 33-107, Ark.Stats. says that if no answer be filed, then 'upon a proper showing, suitable relief shall be speedily granted.' Even in the absence of an answer, the burden was on the plaintiff to make a 'proper showing'; and that presented the question of the sufficiency of the plaintiff's evidence. In the second place, this question of a claimed default was never mentioned in the Trial Court and cannot be raised here for the first time. See Lambert v. Lambert, 229 Ark. 533, 316 S.W.2d 822. A third and equally conclusive answer to the appellant's contention on this default matter is that defendant was not in default. The original petition for mandamus was filed on June 12, 1962, and the amendment a few days later; on June 20, 1962, the defendant filed the demurrer and also the motion to dismiss. These defensive pleadings were filed in ample time and were not disposed of until the final judgment herein, so the defendant was never in default as regards defensive pleadings.

The main insistence of the appellant is that he introduced the printed list containing the names of the poll tax payers of Conway County for the year 1961 (legal voters from October 1, 1961 to September 30, 1962); that such list ² shows only the name and color of the voter and the township in which he resides; and that the list does not even purport to give the other information required by § 3-227, Ark.Stats., that is, it does not give the residence, post office address, and school district of each voter. In the course of the trial the appellant undertook to show errors and duplications in the printed list as filed, but was prevented from doing so by the ruling of the Trial Court that the proffered evidence was hearsay. We find no error in the Trial Court's ruling in the hearsay matter.

We come, then, to the real insistence of the appellant, which is that the County Court and Judge thereof should be required by mandamus to enforce the provisions of § 3-227, Ark.Stats. To this issue the appellee presents here a series of answers:

(1) The appellee claims that the provisions of § 3-227, Ark.Stats. are contrary to Amendment No. 8 of the Arkansas Constitution, as construed in such cases as Wilson v. Danley, 165 Ark. 565, 265 S.W. 358; Henderson v. Gladish, 198 Ark. 217, 128 S.W.2d 257; and Wilson v. Luck, 201 Ark. 594, 146 S.W.2d 696. We forego any discussion of the appellee's contention on this point because a case is not to be decided on constitutional issues if it can be decided on any other issue, as this one can. Holt v. Howard, 206 Ark. 337, 175 S.W.2d 384; Smith v. Smith, 223 Ark. 627, 267 S.W.2d 771, 268 S.W.2d 614.

(2) The appellee urges that § 3-227, Ark.Stats. was repealed by § 3-118, Ark.Stats. Likewise, we forego any discussion of this second point urged by appellee because there is no need to consider the question of repeal of statutes, since this case can be decided on the remaining issue.

(3) The third point urged by the appellee is that the Trial Court should have sustained the defendant's demurrer to the complaint because the complaint did not state facts sufficient to constitute a cause of action; and it is on this point that we rest our affirmance of the Trial Court's decree, even considering all the evidence that was introduced in the case. This is because the Trial Court reached the correct result, even on an erroneous theory. When the decision of the...