Tollett v. Knod
| Decision Date | 02 December 1946 |
| Docket Number | 4-8132 |
| Citation | 197 S.W.2d 744,210 Ark. 781 |
| Parties | Tollett. v. Knod |
| Court | Arkansas Supreme Court |
Appeal from Sevier Circuit Court; E. K. Edwards, Judge.
Affirmed.
Byron Goodson, for appellant.
F B. Clement, for appellee.
Ed. F McFaddin, Justice.
This appeal challenges a circuit court judgment approving a county court order which called a local option election in Sevier county, Arkansas, under the provisions of Initiated Act No. 1 of 1942 (Acts 1943, p. 998). This act has been before this court in the following cases: Sturdy v. Hall, 204 Ark. 785, 164 S.W.2d 884; Yarbrough v. Beardon, 206 Ark. 553, 177 S.W.2d 38; Van Gundy v. Caudle, 206 Ark. 781, 177 S.W.2d 740; Lienhart v. Bruton, 207 Ark. 536, 181 S.W.2d 468; Mondier v. Medlock, 207 Ark. 790, 182 S.W.2d 869; Scaramuzza v. McLeod, 207 Ark. 855, 183 S.W.2d 55; Winfrey v. Smith, 209 Ark. 63, 189 S.W.2d 615: Evans v. Hunter, 209 Ark. 234, 189 S.W.2d 913; Hughes v. State, 209 Ark. 125, 189 S.W.2d 713; Shay v. Welch, 209 Ark. 519, 191 S.W.2d 253; Samuels v. Robins, 209 Ark. 614, 192 S.W.2d 109; Shoop v. State, 209 Ark. 498, 192 S.W.2d 122.
In the case at bar, on September 16, 1946, the appellees (sometimes herein referred to as "petitioners") filed in the Sevier County Court a petition, purporting to contain more than 15 per cent of the qualified electors in said county, and praying that a county-wide local option election be called as provided by said Initiated Act No. 1. After notice and appearance of remonstrants (appellants here) and hearing, the county court granted the petition, and called the election (which seems to have been postponed pending the outcome of this appeal). The remonstrants appealed to the circuit court, and the cause was tried there de novo, beginning on October 12, 1946, and concluding on October 19th.
The petition of the appellees consisted of 41 separate divisions or parts, each numbered for identification, but altogether making one petition. We shall refer to these parts as "divisions." The circuit court found: that there were 2,875 valid poll tax receipts issued as shown by the records of the county; that 15 per cent. of that number was 432; that the petition contained 868 valid signatures; and on these findings, the circuit court held the petition to be sufficient, and affirmed the county court order calling the election.
From an unavailing motion for new trial, the remonstrants have appealed to this court, and present here these seven contentions as alleged reversible errors:
1. The circuit court allowed the appellees to present additional testimony after they had rested their case.
2. The circuit court refused appellants' motion for continuance.
3. Nine divisions of the petition (which nine contained a total of 231 names) were held by the circuit court to be sufficiently verified by the canvasser, even though appellants claimed otherwise.
4. Five divisions of the petition (which five contained a total of 155 names) were held by the circuit court to be valid, even though no legal voting precinct appeared opposite each name.
5. Three divisions of the petition (which three contained a total of 41 names) were held by the circuit court to be valid, even though these three divisions were filed after the giving of the statutory notice for hearing in the county court.
6. Seven divisions of the petition (which seven contained a total of 145 names) were held by the circuit court to be valid, even though no canvasser personally appeared in the circuit court to testify as to the circulation and signing of the divisions.
7. If all of appellants' said contentions, numbered three to six, be sustained, then the remaining signatures unchallenged are less than the 15 per cent. required by law.
We have listed all of appellants' contentions, but we find it necessary on this appeal to consider only contentions 1, 2, 3 and 7, as above listed.
The hearing in the circuit court began on October 12th. On that day the appellees introduced the 41 divisions of the petition, and the count as to the total number of signatures on the petition, and the poll tax records showing the total number of legal voters of the county. Thereupon the appellees rested. Then the remonstrants, after an unavailing motion to dismiss, began their attacks on the various divisions of the petition, and on the poll tax records, and on the signatures and qualifications of some of the individual signers. When the remonstrants rested, the record shows the following to have occurred:
It is thus clear from the record that on October 19th, when the court reconvened, the appellees asked -- and received -- permission to reopen the case and introduce additional testimony. This request was made and granted before the circuit court had announced any decision in the case. The appellants contend that the circuit court committed fatal and reversible error in thus allowing the appellees to introduce additional evidence on October 19th. We hold that the trial court acted within its discretion in reopening the case. See Turner v. Tapscott, 30 Ark. 312; Evans v. Rudy, 34 Ark. 383; L. R. & F. S. R. Co. v. Finley, 37 Ark. 562; Oak Leaf Mill Co. v. Cooper, 103 Ark. 79, 146 S.W. 130; National Life & Accident Co. v. Alexander, 193 Ark. 185, 98 S.W.2d 316. In 53 Am. Juris. 109 there are these statements apropos the situation here:
There is no showing that the trial court abused its discretion in the case at bar; so appellants' contention No. 1 is denied.
When the circuit court granted the appellees' request for permission to introduce additional testimony (as just discussed above), the appellants not only objected, but immediately -- and before such evidence was introduced -- asked for a continuance on the grounds of surprise. The court overruled the motion for continuance. The petitioners then had 19 of the canvassers testify that each such canvasser had circulated the division or divisions of the petition sworn to by such canvasser; and that the signing had been in the presence of the canvasser, and that the signer was the holder of a valid poll tax receipt. See Winfrey v. Smith, infra. Then several witnesses testified as to the identity of certain signers: for instance, as where one lady signed her name as "Mrs. J. E. Mize," and it was shown that she was the same person as "Mrs. Stella Mize," to whom a poll tax receipt had been issued. There were less than 20 efforts at such identification. Then the appellees rested; and appellants proceeded with the trial, and offered witnesses, and never renewed their motion. Even if the motion had been renewed, there is no showing that the appellants were surprised. The calling of the canvassers and the proof of identity of signers could not have been an angle of the case in which the respondents could have been surprised. Under the issues stated, the trial court did not abuse its discretion in denying the motion for continuance. In Banks v. State, 185 Ark. 539, 48 S.W.2d 847, 82 A. L. R. 1051, Chief Justice Hart cited many cases to sustain this statement:
"The granting or refusing of continuance, is within the sound legal discretion of the (trial) court, and this court will not interfere where there has been no abuse of that discretion."
Nine divisions or parts of the petition (being divisions numbered 8, 19, 24, 26, 34, 39, 45 and 59) contained a total of 231 names. Appellants claim that each of these nine divisions is fatally defective, because of improper verification by the canvasser. In discussing this contention, we are not now deciding that the petition under Initiated Act No. 1 of 1942 has to be verified as is required for the usual initiative and referendum petitions. Written verification by the canvasser is not the only way of establishing the fact of signing. See Winfrey v. Smith, infra. Each of the nine divisions was circulated by a canvasser; and in each division, following the signatures of the purported poll tax holders, there is a page on which the canvasser made an affidavit. Division No. 45, purporting to be signed by ten voters, is typical; so, we copy in full the affidavit of division 45:
signed the foregoing petition, and each of them signed...
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