Skinner v. City of Eldorado

George Rose Smith, Justice. The questions on this appeal are whether the three individual appellees, Briggs, Robertson, and McAteer, had sufficient standing to appeal to the circuit court from a county court order annexing certain territory to the city of El Dorado, and if so, whether their appeal was taken in a timely manner. The circuit court sustained the validity of the appeal and modified the county court’s annexation order in a manner that is not questioned on the merits. The city, after an election, filed a petition in the county court for the annexation of certain territory. On January 29, 1968, the county court granted the city’s petition. The county court attempted to insert in its description of the annexed territory a clause that would have excepted from the annexation a lot, 330 by 110 feet, on which the appellant Skinner has a grocery store and a filling station; but the court’s description of Skinner’s lot was void for indefiniteness. On April 19, 1968, the county court entered a nunc pro tunc order correcting the description of Skinner’s property. On May 15, 1968, Briggs, Robertson, and McAteer filed their affidavit for appeal from the nunc pro tunc order. Later, on June 7, 1968, they also filed an affidavit for appeal from the county court’s original order of January 29. The circuit court, as we have said, entertained the appeal and modified the county court order by including the Skinner lot in the area being annexed to the city. We consider first the standing of the three individual appellees to appeal from the county court orders. Those men — or at least two of them — had personally appeared in the county court and orally objected to the annexation, without success. Skinner now contends that the protestants’ failure to file a written pleading in the county court deprived them of any standing to appeal from the annexation orders. Skinner, in making that contention, relies upon this quotation from our opinion in Barnwell v. Gravette, 87 Ark. 430, 112 S. W. 973 (1908): “These remonstrants became parties to the proceedings in the way in which they were authorized by the statute to become so — that is, by filing a petition against the annexation within the time prescribed by the statute. Under the repeated decisions of this court in analogous cases, this made them parties and entitled them to take an .appeal.” Skinner argues that, as a corollary to the court’s reasoning in that case, these three appellees could not appeal from the county court orders because they did not file a petition against the annexation. We do not agree. When the Barnwell opinion is read in its entirety, we think it sustains the circuit court’s decision in the case at bar. In Barnwell the protestants’ petition simply stated, as a conclusion, that they did “most positively protest and remonstrate against the granting of said petition” for annexation. This court went on to say: “No reasons, legal or otherwise, are alleged in the remonstrance against the petition. It is mere protest.” The court nevertheless held that the petition was sufficient to entitle the protestants to a hearing in the county court and to an appeal to the circuit court. Our reasoning was simple. The statute, which has not been changed in this respect, provides that “any person interested may appear and contest the granting the prayer of said petition.” Ark. Stat. Ann. § 19-102 (Repl. 1968), which by reference is made the controlling statute by Section 19-507. In Barnwell the protestants did appear in the county court and contest the annexation, just as the appellees did in the case at bar. In Barnwell we pointed out that the protestants do not have to have reasons for attacking the annexation proposal, because the annexation is to be granted only if it be deemed right and proper in the judgment and discretion of the county court. We think it plain that the Barnwell decision turned not upon the fact that the protestants filed a written petition, which actually said nothing, but upon the fact that they exercised their statutory right to appear and contest the annexation. That, indeed, was a sound approach to the issue, for in a matter of public interest the citizen’s right to be heard ought not to be fettered by technical rules of pleading unless the legislature has seen fit to impose such a requirement. We conclude that the appellees had the right to appeal from the county court orders. There remains the timeliness of the appellees’ appeal to the circuit court. The original county court order was entered on January 29. The nunc pro tunc amendment was entered on April 19. The first affidavit for appeal was filed on May 15. If we assume, without deciding, that the time for appeal was thirty days (see § 19-307, supra; cf. Pike v. City of Stuttgart, 200 Ark. 1010, 142 S. W. 2d 233 [1940]), the question is whether the time runs from the date of the original order or from the date of the nunc pro tunc amendment. Here we have no difficulty in sustaining the trial court’s conclusion that the time for appeal began to run anew from the date of the nunc pro tunc order. The facts demand that conclusion. The- appellee Robertson also owns a grocery store that was taken into the city by the annexation. The county court’s exemption of the Skinner property had the effect of allowing Skinner to operate his business on Sunday, while grocers within the city limits do not have that privilege. Robertson, however, had no reason to appeal from the original county court order, because the void description, which did not describe the excepted 330-by-110-foot tract with sufficient definiteness even to identify it as the Skinner lot, gave Robertson no notice that he was being adversely affected by the exception, in the order. It was not until the nunc pro tunc order was placed of record that Robertson had any basis for knowing of, and objecting to, the preferential treatment being given to Skinner. In fairness, his time for appeal should not be held to have already run before he was put on notice that the court’s order worked to his detriment. Hence, in such a situation, the time for appeal begins to run with the entry of the order that works the injury. Freeman, Judgments, § 139 (5th ed., 1925); Adamson v. Brockbank, 112 Utah 52, 185 P. 2d 264 (1947). In a parallel situation we have often held that an amended complaint which merely restates the original cause of action relates back to the filing of the initial complaint, as far as the statute of limitations is concerned; but an amendment that states a new and different cause of action serves as a new point for the tolling of the statute. Warmack v. Askew, 97 Ark. 19, 132 S. W. 1013 (1910). Affirmed. Fogleman, J., concurs.