Nemier v. Bramlett

McCulloch, C. J. Appellant is the owner of land in Randolph County through which the county court established a public road. He filed exceptions to the report of the viewers assessing his damages, and the court appointed reviewers, who made a report assessing the same amount of damages. His exceptions to the last report were overruled, and he appealed to the circuit court from the order of the cbunty court, and there the appellee, who was one of the petitioners for the road, moved the court to dismiss the appeal, which motion was sustained, and an appeal has been prosecuted to this court from that order. It is contended, in the first place, that the report of the reviewers as to amount of damages was final and conclusive upon the original petitioners and also upon those who requested the review. This contention is unsound, for this court has held that the assessment of damages by viewers is not binding until judgment of the county court is rendered giving it force and validity. Howard v. State, 47 Ark. 431; Lonoke County v. CarlLee, 98 Ark. 345. There is a special statute regulating appeals from judgments of the county court establishing roads, and appellant complied with that provision of the statute. Kirby’s Digest, § 3006; Baugher v. Rudd, 53 Ark. 417. The section which is referred to reads as follows: “An appeal from the final decision of the county court for a new county road, or for vacating, altering, or reviewing any county road, shall be allowed to the circuit court. Provided, that notice of such appeal be given by the appellant during the same term of the county court at which said decision was made; and the appellant shall, within ten days thereafter, enter into bond, with good and sufficient security, to be approved by the clerk of the county court, for the payment of all costs and expenses arising from such appeal. Minors, idiots and lunatics, by their guardians, may appeal without giving bond. The circuit court may order another view or review of such road, or make such other orders as the justice of the case demands. The county court, after notice of appeal has been given, shall not issue any order in the premises until after ten days shall have expired from the time of making the decision appealed from; if the appeal shall not have been perfected agreeably to the provisions of this act, the clerk shall issue the order for the opening of the road. The decisions of the circuit court on petitions for roads taken into said court by appeal shall be recorded in the record of said county court appealed from.” It is contended that the appeal was not properly taken, for the reason that the bond was not approved by the clerk, but by the county judge, and that the bond was insufficient to give the circuit court jurisdiction for the further reason that it was signed only by the principals and not by sureties. The bond, after being approved by the county judge, was filed with the clerk, and it was his duty under the statute either to approve it or disapprove it. The circuit court could compel him to do so, and the jurisdiction of the latter court did not depend upon the clerk’s having performed his duty in that respect. Nor did the failure to strictly conform to the statute, in giving a bond with proper security, affect the jurisdiction of the circuit court. If objection had been made to the bond on account of the failure to have it signed by sureties, it was the duty of the court to allow a new bond to be given if tendered in apt time. Our conclusion is that the circuit court erred in dismissing the appeal, and for this error the judgment is reversed, and the cause remanded with directions to overrule the motion and allow appellant to give another bond with sufficient security as provided by the statute.