Garner v. Greene County

J. Seaborn Holt, Associate Justice. On March. 18, 1957, appellees filed their petition in the Greene County Court praying for an order granting a certain county road, and on the same day the county court granted their petition. On April 29, 1957, appellant, Garner, an interested citizen and taxpayer, who was not however a party litigant, filed an affidavit and prayer for an appeal to the circuit court of Greene County, and on April 30,1957, the circuit cleric ordered the appeal. On August 17, 1957, appellees filed motion to dismiss Garner’s appeal and thereafter, on August 28, 1957, the circuit court granted appellees’ motion and dismissed Garner’s appeal. On August 31, 1957, Garner, who was not then a party, for the first time filed in the county court his verified petition to be permitted to intervene and become a party to the action under which appellees’ petition for the road had been granted. He further asked that the March 18, 1957, order granting the road he set aside and on September 4, 1957 the county court denied Garner’s petition to intervene. On September 7, 1957, Garner appealed from the county court’s order denying his petition to intervene and upon appellees’ motion, the circuit court on November 7, 1957, thereafter, dismissed Garner’s appeal and from this order of dismissal comes this appeal. Appellant stoutly insists that the trial court erred in denying him the right to appeal from the order of the county court on March 18, 1957, and we agree. Appellant was an interested citizen and taxpayer of Greene County and his right to appeal here is based on Article 7, Section 33, of the constitution of this state, which provides: “Appeals from all judgments of county courts or courts of common pleas, when established, may be taken to the circuit court under such restrictions and regulations as may be prescribed by law.” And, under the provisions of Sec. 27-2001 Ark. Stats. 1947, relative to appeals, which provides: “Appeals shall be 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 (6) months after the rendition of the same, either by the court rendering the order or judgment or by the clerk of the circuit court of the proper county, with or without supersedeas, as in other cases at law, 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 (6) months after the rendition of the judgment or order appealed from, and not thereafter. The party aggrieved, his agent or attorney, shall swear in said affidavit that the appeal is taken because the appellant verily believes that he is aggrieved, and is not taken for vexation or delay, but that justice may be done him.” In the present case Garner by his verified petition to intervene and to be made a party to the action on August 31, 1957, as of that date became a party to the record in the county court and had the right to appeal, from any adverse decision, to the circuit court at any time within six months after the decision, (March 18, 1957) in accordance with the provisions of the above statute, and, as indicated, the circuit court erred in denying appellant the right to intervene and to become a party. We said in McMahan v. Ruble, 135 Ark. 83, 204 S. W. 746, “It is first insisted that the appeal was properly dismissed because appellant was not a party aggrieved within the meaning of the law. But that contention cannot be sustained. Appellant made himself a party to the record in the county court, and he was, therefore, entitled to appeal from an adverse decision . . . As a citizen and taxpayer he had the right to be made a party to the proceeding in the county court.” And, in the early case of Lee County v. Robertson, 66 Ark. 82, 48 S. W. 901, we said: “. . . the motion by appellee to be made a party for the purpose of protesting against this illegal proceedings does not manifest the impertinent interference of a stranger without interest, and, when made a party, by order of the court, he may prosecute an appeal from the judgment thereafter rendered. ’ ’ Also, in Huddleston & Taylor v. Coffman, 90 Ark. 219, 118 S. W. 1010, we said: “The order of the county court, if improperly made, amounted to an illegal exaction, and Coffman, being individually interested in the order, had the right of appeal. This seems to us to be the plain and natural construction of these clauses of the Constitution (Sec. 33, Art. 7 & Sec. 13, Art. 16). To hold otherwise would be to place the interested parties at the mercy of the county court, and might have the effect of imposing a grievous burden upon them without any right whatever of appeal.” We hold that when Garner filed his petition in the county court to intervene and became a party to the litigation, from that time he was a party and stood in the shoes of an aggrieved party to the action, and had the right to appeal from the county court’s ruling at any time within six months (from March 18, 1957) which he did. But, says appellees: “The circuit court’s order of dismissal dated August 28, 1957, was res judicata or law of the case with respect to the circuit court’s order of dismissal dated November 7,1957, and appellant’s failure to prosecute an appeal from the first order of dismissal by the circuit court constitutes a complete bar to this appeal.” We do not agree, for the reason that on the date (August 28, 1957) that the order of dismissal was made by the circuit court Garner was not then a party to the action, and that judgment could therefore have no effect on his rights. “. . . the doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions, and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.” Csrrigan v. Carrigan, 218 Ark. 398, 236 S. W. 2d 579. Accordingly, the judgment is reversed and the cause remanded for further proceedings consistent with this opinion. Mr. Chief Justice Harris dissents. Mr. Justice McFaddin not participating.