Nevius v. Reed

Hart, C. J., (after stating’ the facts). The road laid out by the county court on the petition of J. H. P. Beed and other persons was opened and laid out on the land of Boy Nevius and others. Viewers were appointed, but no notice, as required by § 5234 of Crawford & Moses’ Digest, was given by the petitioners to Boy Nevius, through whose land said road was proposed to be laid out and established. This fact wás shown by the undisputed evidence in the record, and no attempt was made to prove that the notice required by the statute of the viewers’ meeting, was given or that Nevius waived the notice. Therefore the county court had no right to approve the action of the viewers in laying the road over the land of Boy Nevius without his consent, and the action of the county court in approving the report of the viewers was erroneous. The circuit court heard the case upon the same record as presented to the county court and affirmed the judgment of the county court. This constitutes reversible error. The case is here on appeal, and is not like the cases of Lonoke County v. Lee, 98 Ark. 345, 135 S. W. 833, and Polk v. Road Imp. List. No. 2 of Lincoln County, 123 Ark. 334, 185 S. W. 453, where it was held that the fact that a landowner had no notice of the meeting of the viewers for the assessment of damages is an irregularity and does not affect the jurisdiction of the county court, and does not render such judgment void. In each of these oases the relief was denied the landowner because he had not appealed from the order of the county court, but had attempted to quash the order by certiorari on the ground that it was absolutely void. In each of these cases, however, the court recognized and upheld the rule laid down in Beck v. Biggers, 66 Ark. 292, 50 S. W. 514, to the effect that the notice required by § 5234 of Crawford & Moses ’ Digest is, essential, and that the failure to give it constitutes error calling for a reversal of the judgment of the county court establishing the road, where the statutory notice is not given. Nevius did not have any notice of the meeting of the viewers, and took no part whatever in the proceedings to lay the road over his land. The exceptions filed by him to the report of the viewers did not constitute a waiver of the notice required by the statute. Beck v. Biggers, 66 Ark. 292, 50 S. W. 514. The result of our views is that the judgment of the circuit court was erroneous because the notice required by § 5234 of Crawford & Moses’ Digest was not given, and the cause mil be remanded, with instructions to remand the case to the county court for further proceedings according to law and not inconsistent with this opinion. It is so ordered.