Pharr v. Knox

• Decision Date: 05 July 1920
• Docket Number: 97
• Citation: 223 S.W. 400,145 Ark. 4
• Parties: PHARR v. KNOX
• Court: Arkansas Supreme Court

223 S.W. 400

145 Ark. 4

PHARR v. KNOX

No. 97

Supreme Court of Arkansas

July 5, 1920

Appeal from Lincoln Chancery Court; John M. Elliott, Chancellor affirmed.

Judgment affirmed.

Thos W. Raines, for appellants.

The court erred in sustaining the demurrer and dismissing the complaint. (1) The complaint as amended set up a cause of action cognizable in equity, and (2) the court erred in sustaining the demurrer. Art. 16, § 13, Const. 1874; 93 Ark. 336; 104 Id. 16; 88 Id. 353. Fraud and collusion were alleged in obtaining the judgment of the county court. Certiorari nor prohibition would lie. 30 Ark 101. The judgment was in rem, and can be impeached for want of jurisdiction. 48 Ark. 151. The petition was jurisdictional, and it was alleged that it was obtained through fraud and misrepresentations, rendering it void. The demurrer admitted that the order was void. A plain ground of equity jurisdiction was made out--a multiplicity of suits avoided. 30 Ark. 101; 54 Id. 645. The court erred in sustaining the demurrer. The amended complaint sets up a cause of action in equity.

A. J. Johnson, for appellee.

The proceedings are not invalid, null and void. The bill contains only general charges of fraud, etc., without specifying in what the fraud, etc., was, and states no cause of action which gave the court jurisdiction. 51 Ark. 1; 77 Id. 355. Appellants were all parties to the proceedings and judgment in the county court. 47 Ark. 440; 98 Id. 345. There were no specific statements of facts in the complaint to give the court jurisdiction. Appellants should have appealed, as they were parties. They did not, and it is now too late. 191 S.W. 220. The complaint was properly dismissed.

OPINION

WOOD, J.

This action was instituted by appellants against the appellees. The appellees were commissioners of a road district established by the county court of Lincoln County under act 338 of the Acts of 1915, called the Alexander Road Law.

The complaint alleged that the road improvement district and the proceedings thereof were invalid, for the following reasons, towit:

1. "That the order or judgment of the said Lincoln County Court creating and establishing said road improvement district was procured by fraud, collusion and mistake."

2. "That the name of W. H. Atkinson appears on said petition, although the said Atkinson has been adjudged insane by a court of competent jurisdiction, and was laboring under the disability of insanity at the time of the alleged signing of said petition."

3. "That the board of commissioners of said road improvement district altered and changed the original plans on which said benefit assessments were made, without notice to the landowners in said district, contrary to the provisions of section 16 of said act No. 338."

4. "That said county court was without jurisdiction, for the reason that said petition did not have a majority in numbers, acreage or value."

The complaint set up that the plaintiffs and other taxpayers of the district had no adequate remedy at law; that the commissioners of the district had caused a special assessment to be placed against all real estate in the district and filed the same in the county clerk's office in Lincoln County, and that same would become a lien on the lands in the district. Plaintiffs prayed for a restraining order restraining the taxing officers from collecting the taxes assessed against the lands in the district and that the commissioners be perpetually enjoined from carrying out the contract which had been entered into for the construction of the highway. Attached to the complaint were affidavits of two persons. One of the affiants stated that he was a landowner in the district and knew that Leander Boyd, whose name appeared on the original petition for the establishment of the district, had never owned any land in the district, and that the promoters knew such fact at the time of the signing of the petition by Boyd; that affiant knew that there were other names on the petition who did not own real estate in the district. The other affiant stated that he had signed the petition for the creation of the district; that he did so upon the representation of the county judge that the cost per acre on the land for the improvement would not exceed the sum of seven cents per acre for the third mile, ten cents per acre for the second mile, and thirteen cents per acre for the first mile; that these representations were false and fraudulent; that the county judge knew at the time that the improvement would exceed this amount. Affiant stated that he relied on the representations and signed the petition to his own injury; that he relied on the statements of the county judge as a county official; that the cost of making the improvement had already exceeded the amount stated as shown by the assessments made against affiant's lands and the other lands in the district.

The appellees filed a general demurrer to the complaint. The cause was heard upon the demurrer, and the court entered a judgment sustaining the same and dismissing the appellants' complaint, from which judgment is this...