Drainage District No. 7 v. Stuart

Wood, J., (after stating the facts). The circuit court was without jurisdiction, and should have dismissed the appeal. • 0 Section 1428, Kirby's Digest, the drainage law under consideration, provides as follows: “Any person or corporation may appeal from the order of the court (establishing the district), and upon such appeal may determine either of the following questions: “First, whether such improvement will be conducive to health, convenience or welfare, or the location of any part changed. “Second, whether the route is practicable. “Third, whether the compensation has been allowed for property appropriated. “Fourth, whether proper damages have been allowed or property affected by the improvements. “The appellant shall pray an appeal to the circuit court and file a motion in writing specifying therein the matters appealed from: which motion shall be filed and recorded. The county court shall then fix the amount of bond to be given by the appellant, and cause an order thereof to be made on their record. The party appealing shall within ten days thereafter file with the county clerk a bond in the amount fixed by the county court, with at least two good and sufficient sureties to be approved by the clerk, conditioned to pay all costs made on the appeal in case the appellant fails to sustain the same or the appeal be dismissed for any reason, and the said clerk shall make a complete transcript of the proceedings had before the county court and certify the same with all the original papers filed in his office and file them in the office of the clerk of the circuit court within thirty days from the day of filing said bond.” • . It will be observed that the above statute requires that the “appellant shall pray an appeal to the circuit court and file a motion in writing specifying the matters appealed from, which motion shall be filed and recorded.” This statute requires that the prayer for appeal, and motion in writing specifying therein the matters appealed from, and the order granting the appeal, shall precede the making of the bond required by the statute and the order fixing the amount of the bond. It also requires that, after the appeal is prayed for and the motion in writing specifying the matters appealed from is made, the county court shall enter an order upon its record fixing the amount of the bond. There is nothing in the record to show that there was any motion made in writing specifying the matters appealed from, or any prayer for appeal made, or any order of the court granting an appeal, or any order of the court fixing the amount of the bond entered upon record as the statute requires. The bond required to be filed with the clerk within ten days after the order of the court fixing the amount thereof does not have' to be spread upon the record, under the statute, but the order fixing the amount must be put upon the record, and the motion specifying the matters appealed from must be in writing and also recorded. We are of the opinion that the whole statute, taken together, clearly shows that it was the intention of the Legislature to have the record of the county court show that that court had granted an appeal/ and that the record should show »that a motion was made in writing, specifying therein the matters appealed from. The statute expressly provides that such motion shall be in writing, and that it shall be recorded. Whether or not this motion can be waived, we need not decide. The order fixing the amount of the bond must, of course, be placed upon the record before any bond is given, and this order is tantamount to the granting of the prayer for the appeal, but it must be made at the term of the court when the final order establishing the drainage district is entered. The order forming the district is a final order, and the court loses control of its judgment as to that after the lapse of the term. An appeal can not be granted or taken from such final order after the lapse of the term, under the above statute. The order of the court in which it is stated that the affidavit and bond were “examined, approved and prayer granted” was not made until October 5, 1910, the next regular term of the county court after the final order establishing the drainage district. If this order could be considered as an order granting the appeal, then the anomalous condition arises that the clerk certified a complete transcript of the proceedings had before the county court, with the original papers, etc., on the 3d day of October, 1910, as shown by his certificate, and this was two days before the order granting the appeal and authorizing the transcript to be filed had been made. Under the statute, the court must grant the appeal, and not the clerk. The order fixing the amount of the bond, which is equivalent to granting the appeal, must be entered as before stated, at the term when the final order is made establishing the district. In Ferguson v. Doxey, 33 Ark. 663, a statute in regard to appeals from the court of common pleas provided: “Third. The appeal shall be granted by the court as a matter of right upon motion filed at the same term of the court at which the judgment was rendered.” The court said: “Obviously, there is but one way of taking an appeal provided, and it must be moved for and taken at the term at which the judgment is rendered.” As this was not done, the court held, in that case, that the circuit court acquired no jurisdiction. These statutory requirements are essential to jurisdiction, and therefore they can not be waived. This is a special statutory proceeding, and, the statute having prescribed the manner in which the appeal shall be taken, it supersedes the general statute upon the subject of appeals from the county court, as contained in section 1487 of Kirby’s Digest. The statute prescribing the method for taking appeals in these cases must be followed substantially in order to give the court jurisdiction. The decisions of this court holding that a failure to make a motion to dismiss and to have the circuit court rule on the motion is a waiver of the affidavit or some other statutory requirement for an appeal under the general statutes regulating appeals can not have any application here, for the reason, as stated, that this is a special statutory proceeding and the method prescribed therein is mandatory and jurisdictional, and can not be waived. Ex parte Morton, 69 Ark. 48; James v. Dyer, 31 Ark. 489; Crenshaw v. Bradley, 52 Ark. 318, and Elder v. Crabtree, 59 Ark. 177, cited by learned counsel for appellees, are as to appeals under the general statute, and are therefore not in point. Under the general statute, the filing of an affidavit for appeal is not jurisdictional, and therefore may be waived by failure to have the trial court rule on a motion to dismiss, embodying in the motion such objection. The record in this case fails to show that there was a prayer for an appeal which was granted by the county court. This court has often held that; in order to invest a court to which an appeal is taken with jurisdiction, it is necessary that it appear that the appeal was prayed for and granted in the lower court. See Walker v. Noll, 92 Ark. 148; Matthews v. Lane, 65 Ark. 419; Adams v. Hepman, 27 Ark. 156: Neale v. Peay, 21 Ark. 98. The judgment is therefore reversed, and the cause remanded with directions to dismiss the appeal. Hart, J., dissents.