Smith v. Estes

Conley Byrd, Justice. The appellants Dale Smith, et al, sought an appeal de novo, pursuant to Ark. Stat. Ann. § 48-311 (Supp. 1975), from the action of the Alcoholic Beverage Control Board permitting appellee By-Pass Beverage Co., an Arkansas corporation, to transfer a liquor permit in the City of Fayetteville from 231 Mill Street to 3118 South School Street. The trial court held that By-Pass Beverage Co. was a necessary party defendant and, since it was not made a party defendant within the 30 day time limit, dismissed the appeal. For reversal appellants contend that the appeal was taken within the 30 day period and that the order of the Alcoholic Beverage Control Board was subject to collateral attack as being null and void. The record shows that on December 4, 1974, appellants Filed a petition for appeal de novo from the decision of the Alcoholic Beverage Control Board in the trial court. In so far as here pertine : the petition alleged: “6. That on a date unknown to these Petitioners during the month of July, 1974, the said Peter G. Estes, Sr. acting both individually and as an officer and director of a proposed Arkansas Corporation, By-Pass Beverage Company, made application to the Alcohol Beverage Control Division, Department of Finance and Administration, State of Arkansas, for the transfer of liquor and beer permits issued to Ed Connell for a liquor store at 231 Mill Street, Fayetteville, Arkansas, from the said Ed Connell to the said Peter G. Estes, Sr. and the proposed corporation, namely, By-Pass Beverage Company. 7. That on a date unknown to the Petitioners during the month of September, 1974, the said Ed Connell made application to the said Alcohol Beverage Control Division for a transfer of Liquor Permit No. 502 and Beer Permit No. 2147 from the premises located at 231 Mill Street to the premises located at 3118 South School Street, Fayetteville, Arkansas; and that the said application was made on behalf of himself and the said By-Pass Beverage Company. 8. That on or about October 9, 1974, the said Alcoholic Beverage Control Board authorized the transfer of liquor and beer permits issued to the said Ed Connell for a liquor store at 231 Mill street to the said Peter G. Estes, Sr., and the said permits are now in the name of the said Peter G. Estes, Sr. 9. That the said R. E. Brians, Administrator of the said Alcohol Beverage Control Division, on a date unknown to the Petitioners, denied the application for the transfer of the said liquor and beer permits from the premises at 231 Mill Street to the premises at 3118 South School Street, and the Defendant, Peter G. Estes, Sr., appealed the said Administrator’s decision to the said Alcoholic Beverage Control Board. At a purported hearing on November 20, 1974, the said Alcoholic Beverage Control Board overruled the decision of the Administrator and authorized the transfer of the said liquor and beer permits from the premises at 231 Mill Street to the premises at 3118 South School Street. However, the said liquor and beer permits have not at this time been issued by the said Alcohol Beverage Control Division for the premises located at 3118 South School Street.” On January 29, 1975, both Peter G. Estes, Sr., and the Board filed motions to dismiss on the basis that By-Pass Beverage Co. was the real party in interest and that appellants had failed to make it a party to the appeal. Attached to the motions was an order of the Board reciting that the ruling was made on November 20, 1974. That order shows that By-Pass Beverage Co. was the applicant for transfer and the real party in interest. Also attached to the motions were certified copies of Liquor Permit No. 502 and Beer Permit No. 2147 issued on October 10, 1974, and October 24, 1974, respectively, showing By-Pass Beverage Co., d/b/a “Ozark Liquors,” as holding the permits to do business at 231 Mill Street, Fayetteville. On February 6, 1975, appellants filed their first amendment to their petition for appeal making By-Pass Beverage Co. a party defendant. The second amendment to the petition for appeal was filed on February 19, 1975, and for the first time made the following allegation: “13. Ata purported hearing on November 20, 1974, the said Alcohol Beverage Control Board reversed the decision of the said R. E. Brians, Administrator, and approved the transfer of the location of the aforesaid liquor and beer permits from the premises at 231 Mill Street to the premises at 3118 South School Street; however, the Order authorizing the aforesaid transfer of the aforesaid liquor and beer permits was not signed by the said Kenneth Davis, Chairman of the said Alcohol Beverage Control Board, or made and entered by the said Alcohol Beverage Control Board, until January 28, 1975.” On February 21, 1975, the trial court dismissed the appeal because By-Pass Beverage Co. was the real party in interest, and the appeal as to it had not been perfected within the 30 days allowed for perfecting such appeals. To reverse the trial court, appellants rely upon Ark. Stat. Ann. § 48-1314 (Repl. 1964), which provides: “. . . Within five [5] days after the hearing is concluded the Board shall render its written opinion, decision or order on such appeal. A copy of such opinion, decision or order shall be mailed by the Board by registered mail to the applicant, licensee or protester, and a copy shall be also delivered or mailed by the Board to the Director. Such order and decision shall be final and binding on the Director and the applicant, licensee or protester. Provided, however, that an appeal may be taken from any order suspending or revoking a license as provided for in this Act.” To avoid the effect of the appellants’ argument, appellees point out that appellants took affirmative action with knowledge of the facts and that under the authorities such action on the part of appellants should be treated as a waiver of the rendition and service of the Board’s order. For this assertion appellees rely upon State ex rel. Grant v. First Judicial District Court, 38 Utah 138, 110 P. 981 (1910). In that case on March 27, 1909, in a trial to a jury, a verdict was returned in favor of Grant. Two days later, Jeppesen, the defendant, filed a written motion to vacate and set aside the judgment. The justice of the peace denied the motion on the same day it was filed. Jeppesen filed an appeal 44 days later. Grant, the plaintiff, moved to dismiss the appeal because it was not filed within the 30 days allowed for taking such appeals. Since it was conceded that no notice of the entry of judgment had been given, the district court denied Grant’s motion to dismiss because of a Utah statute which provided: “Any person dissatisfied with a judgment rendered in a justice’s court, whether the same was rendered on default or after trial, may appeal therefrom to the district court of the county at any time within thirty days after the rendition of any final judgment. Notice of the entry of the judgment must be given to the losing party by the successful party either personally or by publication, and the time of appeal shall date from the service of said notice.” On a petition for prohibition, the Utah Supreme Court held that Jeppesen had waived the statutory notice in this language: “The rule, as declared by the weight of authority, seems to be that, when a statute provides that an appeal may be taken within a specified time after the service of notice of the rendition or the entry of judgment, a party seeking to limit the time of appeal is held to strict compliance with the statute. The party entitled to notice may have actual knowledge that the judgment has been rendered, but this alone is not sufficient to set the statute running. . . . But these same authorities also hold that the party claiming to be aggrieved by thejudgment may waive the giving of notice and by his own act set the statute running. Where, for example, a party dissatisfied with a judgment files a motion for a stay of execution, or by other direct proceeding attacks the judgment, and invokes the action of the court to relieve him, either wholly or in part, from the effect thereof, he will be deemed to have waived service ol notice. In 1 Spelling, New Tr. & App. Pr., sec. 363, the author, discussing the question of waiver of notice, says: ‘It may not only be waived, but the party entitled to notice may do that which will estop him from denying that he has not been notified of the decision according to the statutory requirements. But even in that case his act may with propriety be spoken of as waiver. It constitutes a clear case of waiver for the movant to serve and file his notice of intention, or file any paper reciting the filing of findings, without waiting to receive notice of the decision.’’ ” We, too, conclude that appellants are bound by the recitations in their pleadings. Since they recited the findings of the Board on November 20, 1974, and made specific reference to permits # 502 and # 2147, they had full knowledge that By-Pass Beverage Co. was the real party in interest. Their failure to make By-Pass Beverage Co. a party seems to have occurred upon the theory that since the articles of incorporation for By-Pass Beverage Co. had not been filed in the County, it did not have corporate status. This theory on the part of appellants is completely contrary to the provisions of Ark. Stat. Ann. § 64-117(B) (Repl. 1966) which provides: B. Upon the filing with the Secretary of State of the original articles of incorporation, corporate existence shall forthwith begin; and neither such corporate existence nor the right to do business as a corporation shall be postponed until a duplicate of such articles is filed with the County Clerk, ...” Appellants also contend that their motion for summary judgment should have been granted because the order of the Board was null and void under Ark. Stat. Ann. § 48-312 (Repl. 1964), which provides: “A permit issued to any person, pursuant to this section, for any premises shall not be transferable to any other person or to any other premises or to any other part of the building containing the permitted premises. It shall be available only to the person therein specified, and only for the premises permitted and no other.” We find no merit to this contention because the statute is a restriction on the permittee and not to any subsequent actions by the Board. Affirmed. George Rose Smith and Fogleman, JJ., dissent.