Chicago Mill & Lumber Co. v. Drainage District No. 15

Kirby, J., (after stating the facts). The ¡appellant filed ¡an affidavit and prayer for appeal for itself and such other owners of land within the ¡district as desired to join in the appeal. The motion to dismiss in the circuit court was on the ground that no order was made by the county court granting ¡the appeal. The testimony shows that no order was ever made by the county court granting an appeal from its judgment establishing the ¡drainage district, nor was there any order of appeal to the circuit court made by the ¡circuit clerk, after the filing of the transcript with him. In Wulff v. Claibourne, 107 Ark. 329, this court said of the law under which this district was established: “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 ¡drainage laws in f-oroe -at the time of its passage, hut is expressly -declared to he an .alternative system, and its provisions relative to procedure on appeal from judgments of the county court -are different from those of -secti-on 1428 of Kirby’s Digest, which iare not required to be -complied with in the taking of -an -appeal under the provisions of the act.” . Under the general -statute, section 1487, Kirby’s Digest, appeals are “granted as a matter -of right to the circuit court from all final orders -and judgments of the county -court -at any time within six months -after the rendition of s-ame, -either by the court rendering the order or judgment, or by the clerk of the -circuit -court, * * * by the party aggrieved filing an affidavit and prayer for an appeal with the clerk of the -court in which the -appeal is taken; and upon the filing of such .affidavit and prayer the court rendering the judgment or order -appealed from, or the clerk of the circuit court, shall forthwith order an appeal to the circuit court -at any time within six months -after the rendition of the judgment or order -appealed from and not thereafter, -etc.” The statute under which this district was formed provides: “ * * * Any owner of real property within the district may appeal from such judgment within twenty days -after s-ame has been made,, but if no -appeal is taken within that time, such finding -shall be deemed conclusive and binding upon all the real property within the boundary of the district that -a majority in number or acreage -or value have petitioned for the improvement. * * *” Section 3, Act May 27, 1909. Conceding that the general statute providing for appeals from the county -court is -applicable to appeals from judgments relative to the -establishment of drainage districts under said A-ot 279,-of the Acts of 1909, the time in which they may be taken is shortened to within twenty days after the date of rendition of the judgment -appealed from. Notwithstanding therefore appellant was entitled, -as a matter of right, to an order granting the appeal upon the filing of the affidavit -and pr-ayer therefor, it is nevertheless a fact that no order was made by said court granting such appeal within that time, or at all, and it is also true that no affidavit and prayer for appeal was ever filed with the circuit clerk, and that the transcript of the proceedings in the county court containing such affidavit and prayer was not filed before the circuit clerk until May 8, 1913, more than twenty days after the making of the order establishing ‘the district. (1-2) A court can not enter an order granting, an appeal mmc pro tunc, when no such order was in fact made by such court and 'although appellant had the right to have .an order granting his appeal made upon the filing of 'the affidavit and prayer therefor, he .could not, more than six months thereafter, nor after the expiration of the twenty days from the date of rendition of the judgment compel the entry of such order by mandamus. No order granting an appeal having been made by the county court, the circuit court “was without jurisdiction to hear the cause and committed no error in dismissing it and in denying the prayer of the petition for relief by mandamus. Affirmed. Hart and Smith, JJ., dissent.