Brookfield v. Jonesboro Trust Co.

HUMPHREYS, J. Appellant, who is a civil engineer, brought suit in the circuit court for the Jonesboro District of Craighead County against appellees on a bond to recover a fee of $5,000 for making a survey preliminary to the attempted organization of Big Creek Drainage District in Craighead County. Appellees denied liability upon the bond and pleaded res adjudicaba. The cause was heard upon the complaint, answer, the original petition filed in the matter of the attempted formation of Big Creek Drainage District, and all the orders and judgments of the circuit court rendered in connection with said district. The complaint was dismissed and the cause is here on appeal. Big Creek Drainage District was attempted to be organized by appellees under Act 279 of the General Assembly of the State of Arkansas for the year 1909, as amended by Act No. 221 of the public acts of 1911. All the necessary steps preliminary to the. organization of said district, as provided by said act, were complied with. In the course of the proceedings, the required statutory bond was filed by these appellees. Appellant was duly appointed engineer to make the preliminary survey and signed and filed his report in the manner provided by law. Upon hearing, the cause was dismissed for the want of jurisdiction, on the 1st day of July, 1912. This order was not entered. Appellant filed a motion to reinstate the cause for the purpose of adjudicating the costs of the preliminary survey. He also moved for a nunc pro tunc order to enter the judgment rendered by the court dismissing the cause for the want of jurisdiction. The above motions were presented to the court for consideration on September 25,1915, and the following judgment was rendered on that date: “It is therefore by the court considered, ordered and adjudged that this cause be dismissed for want of jurisdiction, and that as this order was made and rendered on the 1st day of July, 1912, that same be entered now for then, and the motion to reinstate and tax costs to pay the engineer’s claim for fees is on that account denied and dismissed.” The bond executed by appellees was a statutory bond conditioned for the payment of the costs and expenses of the survey in the event the proposed district should not be established. This court has held that it was proper to present the claim for the costs and expenses of a preliminary survey in the original proceeding for the formation of the district. Burton v. Chicago Mill & Lumber Co., 106 Ark. 296. Appellant filed a motion to redocket the original case for this purpose and to mmc pro tunc the original decree dismissing the proceeding for the want of jurisdiction. The court entered the original decree now for then and for the reason that the original proceeding was dismissed for the want of jurisdiction the court denied and dismissed the motion to reinstate and tax costs to pay the original claim for fees. It was appellant’s duty to appeal from this order for it was a final adjudication of his claim. The plea of res adjudicada to the action of appellant was a good and sufficient defense. The judgment is affirmed.