Reese v. Steele

• Decision Date: 12 November 1904
• Citation: 83 S.W. 335
• Parties: REESE et al. v. STEELE.<SMALL><SUP>*</SUP></SMALL>
• Court: Arkansas Supreme Court

83 S.W. 335

REESE et al. v. STEELE.^*

Supreme Court of Arkansas.

November 12, 1904.

Application by one Reese and others for a writ of prohibition against James S. Steele, circuit judge. Petition denied.

Feazell & Bishop, D. B. Sain, W. C. Rodgers, and Rose, Hemingway & Rose, for petitioners. W. D. Lee, H. L. Norwood, H. P. Epperson, R. D. Epperson, and Dan W. Jones, for respondent.

HILL, C. J.

There was county seat contest in Howard county, and an appeal was taken from the order of the county court declaring that the county seat was removed from Center Point to Nashville, and ordering the county records removed to a temporary place at Nashville. The county judge refused to approve a supersedeas bond, not on account of insufficiency of the sureties, but because the judgment could not thereby be stayed. The parties who had appealed from the order aforesaid filed a petition for mandamus in Howard circuit court praying that the county judge be compelled to approve the supersedeas bond, if sufficient, and to restrain him from carrying into effect the order of removal of the county records, etc., from Center Point to Nashville. On a hearing at chambers, in vacation, both sides represented, the circuit judge issued an order commanding the county judge to refrain from effecting such removal until the appeal be heard and finally determined by the Howard circuit court, and then only in accordance with such final determination. The petitioners here seek to prohibit Judge Steele, in vacation or term, from taking action under that order, and to have it declared void.

1. The order complained of, the enforcement of which is sought to be prohibited, was made by the circuit judge in vacation, and no objection to his jurisdiction appears to have been made before him, and no objection to his jurisdiction has been filed in court nor acted on by the court. In Williams, Ex parte, 4 Ark. 537, 38 Am. Dec. 46, this court said: "The rule was, at common law, that no prohibition lay to an inferior court, in a cause arising out of their jurisdiction, until the matter had been pleaded in the inferior court, and the plea refused. The statute emphasizes the common-law rule by defining the writ as one addressed to an inferior court." Sand. & H. Dig. § 4892. This rule has been followed in many cases. Ex parte Blackburn, 5 Ark. 21; McMeechen, Ex parte, 12 Ark. 70; Ex parte City of Little Rock, 26 Ark. 52; Butler v. Williams, 48 Ark. 227, 2 S. W. 843. In Russell v. Jacoway, 33 Ark. 192, there is a relaxation of the rule. There the question of jurisdiction of the subject-matter was directly raised before the judge in vacation, and mentioned in his order, and not before the court, but the writ was sought to issue to the Pope circuit court, not to the circuit judge, and in that form was sustained. On the other hand, in Palmer v. McChesney, 26 Ark. 452, a mandamus case, under similar practice, this court held a mandamus would not lie to a judge at chambers; that there must be a final order in court on the question raised before this court would entertain the writ. The rule prevails generally as declared in Williams, Ex parte. High on Ex. Legal Remedies, §§ 762, 763. The exceptions to the rule are that it can run against municipal bodies and quasi judicial tribunals. Id. § 764a. The exceptions do not include judges acting in vacation. Therefore the court holds prohibition only lies to a court, not to a judge or chancellor at chambers, and not to the court until the jurisdictional question has been raised there and overruled.

2. There were two orders entered of record in regard to the removal, the last being made to correct the former, and made it speak the truth as the court declared. Under the first order the petitioners appeared as parties at the threshold. Under the nunc pro tunc order the petitioners were granted an appeal after the finding was made, and thereafter ordered made parties for the purpose of hearing the contest, which was set for a future day. The Constitution assures appeals from all judgments of the county court. Article 7, § 33. The statute prescribes that appeals may be taken by the party aggrieved, with or without supersedeas, within six months by filing affidavit, etc. Section 1264, Sand. & H. Dig. In Willeford v. State, 43 Ark. 62, Mr. Justice Smith said: "The county court has the authority, then, to determine in the first instance where the county seat is, and whether the conditions have arisen upon which a removal is required. This may incidentally involve the questions whether the vote has been fairly taken, and the necessity, if fraud has supervened, to purge the polls. A revision of its action may then be had, upon the appeal of any person aggrieved, to the circuit court." This procedure has been indorsed in McCullough v. Blackwell, 51 Ark. 159, 10 S. W. 259; Rucks v. Renfrow, 54 Ark. 409, 16 S. W. 6, 12 L. R. A. 362. The petitioners were parties, whether viewed from the first or the amended record, and the judgment of the county court ordering the removal of the county seat was appealable, and the method adopted effected the appeal.

3. The order complained of was issued by the circuit judge in vacation in a mandamus suit pending in the Howard circuit court. Mandamus can only issue by a court, not by the judge in vacation. Sand. & H. Dig. § 4891; Palmer v. McChesney, 26 Ark. 452. To meet emergent occasions it is provided in section 4896 of the Digest that the circuit judge may, in vacation, make temporary orders for preventing damage or injury to the petitioner pending the hearing of the mandamus by the court. The Constitution (article 7, § 14) confers on the circuit courts appellate jurisdiction of, and superintending control over, county and other inferior courts, and gives the circuit judges in vacation power to issue, hear, and determine all necessary writs to carry into effect this jurisdiction and control. Under these provisions the circuit judge was acting within his jurisdiction in staying the proceedings until the appeal is heard, and therefore the courts ought to sit at Center Point until the appeal is heard or the order revoked or reversed.

4. It appears that the mandamus is sought against the county judge upon the theory that the petitioners can show on appeal that the county seat was not legally voted to be changed, and that the county judge refused to act upon a sufficient supersedeas bond, and give it effect superseding the judgment. Does a supersedeas bond in such cases suspend the judgment pending the appeal? When a judgment executes itself — that is, where no act of a ministerial officer is necessary to put it into effect — a supersedeas does not alter the state of things created by the judgment. Parts of a judgment may be self-executing, and other parts, requiring the performance of acts by ministerial officers to make them effective, are not self-executing. Elliott, Appellate Proc. 392, 393. In a county seat contest in West Virginia it was held that the judgment declaring the result thereof was self-executing. Hamilton Co. v. County Court, 38 W. Va. 71, 18 S. E. 8. Other instances, alike in principle, cited in petitioner's brief, are of self-executing judgments, which are not subject to stay by supersedeas. Self-executing judgments are not the only ones subject to stay by supersedeas. Where there can be no judgment rendered on the bonds given by reason of the character of the judgment sought to be superseded, the recovery thereon is limited to nominal damages and costs. Elliott, App. Proc. 397. Therefore it follows that a supersedeas bond can only stay so much of the judgment as it can affect; and where it cannot be held for anything except costs, as a matter of course it will only stay the amount so far as the costs are concerned. Thus the order removing the records is not self-executing, it has to be performed by a ministerial officer, yet no judgment beyond costs could be given on such a bond; hence it only stays the costs. While the judgment declaring the future county seat is self-executing to the extent that it is not subject to be stayed by a supersedeas bond, it does not by any means follow that it instantly removes the county seat, for the Constitution and statutes plainly declare that the courts and county seats remain at the old location until certain things therein required are first performed. This is where this case differs so widely from the West Virginia case pressed upon the court in argument. The Constitution (article 13, § 3) forbids the county seat to be removed, after a majority of the electors have voted therefor, until the place at which it is to be located shall be fully designated. The statutes provide that the order of removal shall not be made, or, if made, shall not be executed, until a fee-simple title is vested in the county to the new site (Sand. & H. Dig. § 950). After such deed is made, then the county court is authorized to appoint commissioners to prepare the land for occupancy, purchase or erect buildings preparatory to the actual removal and change of the county seat. Section 951. After the buildings are made ready, and the commissioners so report to the county court at its next term, then the next and every succeeding term of the county court shall be held at the new county seat, and thereafter the circuit court and other courts of general jurisdiction shall be holden thereat. Section 952. In Hudspeth v. State, 55 Ark. 323, 18 S. W. 183, this court held that it was within the jurisdiction of the county court to order, after a removal had been voted, the county seat removed into a temporary location pending the fulfillment of their statutory requirements. But that case did not hold that it was proper to do so, and only held that the impropriety, if there was not uniformity in so doing, could not be attacked collaterally; leaving the inference that these matters are proper subject of review in direct attack on appeal. All of these matters are proper...