Brown v. Kirkland

Hart, J. (after stating the facts). The only issue raised by the appeal is whether or not the circuit court erred in dismissing the appeals of the defendants from the court of common pleas of Ashley County. The Legislature of 1915 passed an act establishing a court of common pleas in Ashley and Drew counties. Acts of 1915, p. 1438. Sec. 3 provides that the clerk of the circuit court shall be ex-officio clerk of the court of common pleas. Sec. 9 provides that aggrieved persons, may appeal to the circuit court, and reads as follows: “That any person aggrieved by any final judgment rendered by said court, except as to judgment' of dismissal for want of prosecution, may take an appeal to the circuit court within thirty days after rendition of said judgment, by making a good and sufficient bond, to be approved by the clerk, and complying with the law otherwise as to appeal from justices’ courts to the circuit court. Provided, that the affidavit for appeal may be made by the party, his agent or attorney; and provided, further, that if the court has adjourned the appeal shall be allowed by the clerk, when notice of the appeal, in such case, shall be served upon the appellee, his agent or attorney of record; but if allowed by the court in open session, upon motion of the appellant, and the filing of the affidavit and bond before the final adjournment of the court, no further notice to the adverse party shall be necessary.” Sec. 10 provides that, on all appeals to the circuit court, the clerk shall transmit all of the original papers, affidavit for appeal, the appeal bond, certificate of the amount of costs accrued, and a complete transcript of all the record entries in the case to the clerk of the circuit court, whereupon the circuit- court shall try said cause de novo. To uphold the judgment of the circuit court in dismissing the appeal of the defendants, counsel for the plaintiffs rely upon decisions of this court with regard to appeals from the probate court, and, in certain instances, from the county courts. The statute regulating appeals from the probate court expressly provides that the court shall make an order granting the appeal. Hence this court has held that, an order granting an appeal by the probate court is a prerequisite to the right of the circuit court to exercise jurisdiction, and cannot be waived. Speed v. Fry, 95 Ark. 148, and Thomas v. Thomas, 150 Ark. 43. So also, under certain statutory proceedings for the creation of drainage districts, the county court and not the clerk must grant the appeal. This court has held that these statutory requirements are essential to jurisdiction, and therefore they cannot be waived. Drainage District No. 7 of Craighead County v. Stuart, 104 Ark. 113, and Drainage District No. 1 v. Rolfe, 110 Ark. 374. This brings us to a consideration of whether or not the statute regulating appeals from the court of common pleas of Ashley County requires that the court should grant the appeal. We have copied § 9 of the statute regulating the manner of taking appeals to the circuit court, and a careful reading of it shows that it is not necessary for the court of common pleas to grant the appeal unless the appeal is taken during the term of court at which the judgment was rendered. The section provides two modes of taking an appeal from the court of common pleas to the circuit court. One is to apply to the court in open session during the term at which tlie judgment was rendered, and the other is by filing the affidavit and bond with the clerk after the court has adjourned and without any action of the court. In the instant case, after the adjournment of the court of common pleas, and within the time allowed by law for taking appeals, the defendant, Brown, filed an affidavit for appeal and appeal bond with the circuit clerk. It is true that the circuit clerk made no formal indorsement on these instruments that he had granted an appeal to the circuit court, but he did all that the law required of him in perfecting the appeal. He indorsed on the papers the date they were filed, and signed the indorsement as clerk of the circuit court. The circuit clerk was ex-officio clerk of the court of common pleas, and, as such, it was his duty to send in a-transcript of the proceedings to the-circuit court when an appeal was taken to that court from the court of common pleas. The circuit clerk made and certified this transcript as required by the statute. The clerk also docketed the cases in the circuit court. Thus he performed every act essential to the granting of the appeal, and the only thing left undone was formally to indorse upon the affidavit for appeal that he had granted the appeal. The statutory affidavit for appeal and the appeal bond were duly presented to the circuit clerk, and he acted upon them by complying with all the requirements of the statute regulating appeals from the court of common pleas to the circuit court. We are of the opinion therefore that the circuit court acquired jurisdiction of the proceedings, and erred in dismissing the appeal of the defendants. The entering of an order upon the affidavit for appeal by the clerk of course would have been the best evidence that the appeal had been granted by him, but his act in complying with all the essential requirements of the statute regulating appeals in such cases was sufficient to show that he had granted the appeal and to invest the circuit court with jurisdiction. In recognition of this principle, see Hempstead County v. Howard County 51 Ark. 344, and Thomas v. Thomas, 150 Ark. 43. It is also insisted that the judgment should be upheld because no notice of the appeal was given as required by the statute. Sec. 9 provides that appeals may be taken to the circuit court by making a good and sufficient bond, to be approved by the clerk, and complying with the law otherwise as to appeals from justice courts to the circuit courts. Sec. 6527 of Crawford & Moses’ Digest provides, in effect, that if the appellant failed to give notice of his appeal in a canse when snch notice is required, the canse 'may, on application of the appellee, be continued as a matter of course until the succeeding term, but that no appeal shall be dismissed for want of such notice. Hence the failure to give the notice required by the statute was not a ground for dismissing the appeal. It follows that the court erred in dismissing the appeal of the defendants, and for that error the judgment must be reversed and the cause remanded, for further proceedings according to law.