Light v. Self

McCULLOCH, C. J. Appellants are commissioners of a road improvement district, the legal existence of which depends upon the validity of an order entered on the record’s of the county court of Greene County February 7, 1918, purporting to create the district pursuant to the terms of Act No. 338 of the General Assembly of 1915. Appellees are owners of real property within the territorial boundaries of the district and they assail the validity of the proceedings on the ground that the county court was not in session on the day which the record .shows the order was made. . . According to the record before us, the county court convened on the first Monday in January, 1918, the day prescribed by law, and remained in session until the 9th day-of January, when an order was entered in the following words: “It is ordered by the court that the court adjourn until called by the judge.” This record was signed by the presiding judge of the court. There were no further proceedings in the court, and, according to the record, no other session of the court was held until February 7, 1918, when the order was entered creating this road improvement district. Appellees thereafter appeared in the county court and contested the assessments of benefits, and appealed from the order of the county court approving the assessments, and also presented to the circuit court a petition for certiorari for the purpose of bringing up the records of the county court and quashing the same on the ground that those records disclosed the fact that the county court was not legally in session on the day the proceedings were had creating the improvement district. During the pend-ency of these proceedings in the circuit court, the county court at a session held'on October 26, 1918, entered an order correcting the former entry made on January 9, 1918, concerning the adjournment of the court so as to make that order read as follows: ‘ ‘ The court will suspend until tomorrow and remain open until the business of the term is completed.” Appellants filed an answer to the petition and the matter was heard by the court on the pleadings and' oral testimony of the county judge and the clerk of the county court, which in substance showed that when business of the county court was suspended on January 9,1918, there was no specific order made by the judge, but the judge testified that his intention was that the court should remain in session from day to day until the business of the court was completed. The circuit court, on the final hearing, quashed the proceedings on the ground that the county court was not legally in session on the day the order was made creating the district. In other words, the court held that it was a vacation order, which is not authorized by statute. The contention of learned counsel is that the rule still prevails here, according to what is said to be the common-law rule on the subject, that where a court meets at the proper time and place specified by law the term continues until the beginning of another regular term, which breaks the continuity, or until there has been an affirmative order of the court adjourning without day or to a specified day. Such, indeed, was the common-law rule, which was a part of the fiction that a term of court, however long extended, was but a day, and that all judgments and orders of the court were of that same day. We have expressly repudiated the common-law rule as being inconsistent with our statutes so far as concerns the theory that the term is but one day. Ex parte Baldwin, 118 Ark. 416; State ex rel. v. Canal Construction Co., 134 Ark. 447, 203 S. W. 704. In Ex parte Baldwin, supra, we said: ‘ ‘ The ancient rule was that a term of court was considered as of one day and the court deemed to be continuously in session from beginning of the term until the final adjournment. * * * Our statute manifestly contemplates different days of the term of court, but it does not take account of parts of days, and even if the court announces an adjournment it has the power to reconvene on the same day for the purpose of transacting business.” In State ex rel. v. The Canal Construction Co., supra, we said: “Under onr statutes certain times and places are fixed by law to hold court. * * When the court adjourned to a day certain all persons interested had the right to remain away until the day fixed by the court to convene again, and the judge could not before that day arrived convene the court and proceed with the dispatch of the cases and other matters pending therein. The fact that by a statute in this State courts must be held at fixed times and places raises the implication that courts cannot assume a vagrant character and hold their sessions at other times or places than those provided by law.” The county court is a court of record and our statute regulating the procedure in such courts provides for what are termed adjourned sessions of court, and also for special terms of court. The statute authorizing adjourned sessions reads as follows: “Special adjourned sessions of any court may be held in continuation of the regular term, upon its being so ordered by the court or judge in term time, and entered by the clerk on the record of the court.” Kirby’s Digest, section 1531. This statute is manifestly in conflict with the common-law rule concerning the continuity of a term of court, and necessarily changes the common-law rule, for, if that rule still prevails making terms of court continue from day to day without an order of court, then it is surplusage for the lawmakers to require an adjourned session in continuation of the term to be expressly ordered by the court and entered on the record. The statute is not declaratory of the common-law rule but operates as a restriction of that rule by requiring adjourned sessions of court to be specifically ordered and the order entered on the record. The case before us does not involve an instance where the county court suspended business without a specific order of adjournment and resumed its function the next day, but the facts of the case are that the court met on a distant date—after the intervention of twenty-nine days without convening the Court in the meantime—and attempted to continue the business of the term. It is immaterial whether we consider the order originally entered by the clerk or the one subsequently entered nunc pro tunc by the court. One of them recites that the court was adjourned “until called by the judge,” and the other recites that the court suspended business until the next day to “remain open until the business of the term be completed.” It does not appear that the court met the next day, or any other day, until February 7, 1918, the day on which the order creating this district was entered. To uphold the action of the judge as being that of the court in session would be to approve and legalize the practice which we expressly condemn in State ex rel. v. Canal Construction Co., supra, and adhere to a rule which would permit the court to “assume a vagrant character and hold its sessions at other times or places than those provided by law,” for, if that practice is to be followed, there would be no notice to litigants when court is to be held so as to afford them an opportunity to attend. To allow such a rule is also to ignore the statute which provides that an adjourned session of the court must be definitely specified by an order entered on the record in term time; or, in other words, while the court is legally in session. It is unnecessary to inquire what the rule is in other States, for we think that our statutes on the subject settle the question against the contention of counsel for appellants. The court not being in session, it follows that the order creating the district is void, and the only remaining question is the one earnestly argued by counsel that the case falls within the rule that certiorari is a matter of discretion and not one of right, and that the relief should be denied unless the proceeding is invoked without delay after the entry of the judgment or order sought to. be quashed. That rule has been applied by this court, as contended for by counsel, in several cases, notably in Black v. Brinkley, 54 Ark. 372, and Johnson v. West, 89 Ark. 604. Whether the rule is applicable to a case of this sort, involving the validity of an improvement district which necessarily results in the levying of special taxes on real property, we need not stop to inquire, for we are of the opinion that the trial judge did not abuse his discretion, ■under the circumstances, in granting the relief sought. The record shows that the petition for certiorari was filed in the circuit court on September 30, and it was heard at the October term, 1918. In the meantime appellees were contesting their assessments, and as a part of their contest brought up for review the county court’s record establishing the district. The amount of assessments of benefits had not been finally settled when the present attack on the validity of the organization was begun. We are of the opinion that appellees are not chargeable with unnecessary delay, or, at least, we will not disturb the finding of the circuit court to that effect.' Affirmed. Footnotes [1] Note.—The court in this case did not consider whether section 40 of Act 338 of 1915 was applicable. The section was not called to the court’s attention.— (Rep.)