Wulff v. Claibourne

Kirby, J. (after stating the facts). It is insisted that •the court erred in not dismissing the appeal from the county court and that the nunc pro tunc order made by that court granting the appeal was void, and conferred no jurisdiction upon the circuit court. Ah order nunc pro tunc was entered March 30, 1912, granting the appeal as of the date the judgment was rendered, from which the appeal was taken and the affidavit and prayer therefor filed, and no question was made below that notice of the application therefor, was not given to the party against whom it was sought, and it is too late to raise it here for the first time. The law under which, the district was organized, Act 279 of the Acts of the Assembly, 1909, and amendatory acts, allows an owner of real property within the district, who conceives himself to be aggrieved by the assessments of benefits against his land to present his complaint to the coutny court at its first regular, adjourned or special session thereafter, which shall consider the same and enter its finding' thereon, confirming the assessment, or increasing or diminishing the same, which finding shall have the force and effect of a judgment, from which an appeal may be taken within twenty days by either the property owner or the commissioners of the dis-strict. Sec. 7, Act 1909. Section 9 of the act provides: That the remedy against such assessments of taxes shall be by appeal and that such appeal shall be taken within twenty days from the time that said assessment has been made by the county court and on such appeal the presumption shall be in favor of the legality of the tax. The affidavit and prayer for appeal was filed on the day the county court rendered its judgment confirming the assessment against appellee’s land and an order granting the appeal was, in fact, made, although the clerk omitted to enter it of record, and it was entered nunc pro tunc on March 30, 1912, thereafter. The appeal, however, was taken and granted on the same day the judgment was rendered, and the omission to enter the judgment on that day did not affect its validity. Ex Parte Morton, 69 Ark. 48. Although this is a special act the terms of which must be fully complied with in proceedings under it, it is neither cumulative nor amendatory of the other drainage laws in force at the time of its passage but is expressly declared to be an alternative system and its provisions relative to procedure on appeal from judgments of the county court are different from those of section 1428 of Kirby’s Digest which are not required to be complied with in taking an appeal under the provisions of the act. Under the general law, relating to appeals from the county court, six months after the determination of the judgment or order appealed from is given in which to appeal, and the clerk is required to transmit all the original papers and the transcript of the record entries in the cause or matter to the clerk of the circuit court and all appeals granted ten days before the commencement of the term of the circuit court next after they are allowed, shall be tried and determined at such term, unless continued for cause. The transcript in the instant case was not lodged in the circuit court until a year after the allowance of the appeal and it was within the discretion of that court to determine whether it would permit appellant to prosecute its appeal on account of the lack of diligence and the court determined the question in favor of appellee and refused to dismiss the appeal bn that account, and we find no abuse of discretion in its having done so. A good deal of testimony was heard, relative to the situation of the lands, and the location of the drain or ditch and the benefits to the land, by reason of its construction, which was to some extent conflicting, and the court determined from it what amount of benefit should be assessed and entered judgment accordingly and we think its findings are supported by the preponderance of the testimony. Fnding no prejudicial error in the record, the judgment is affirmed.