Ex parte Morton

60 S.W. 307, 69 Ark. 48, 1900 Ark. LEXIS 161

• Court: Supreme Court of Arkansas
• Decided: December 22, 1900
• Status: Published

Opinion

PiddiCK, J.,

(after stating the facts). We are of the opinion that the county judge had the right to appeal from the order of the circuit court rendered in this case. Our statute provides that ydien appeals from the orders and judgments of a county court are prosecuted in the circuit or supreme court, the judge of the county court shall defend the same. Sand. & H. Dig., § 1270. This, as heretofore decided, includes the right to take an appeal. Ouachita County v. Bolland, 60 Ark. 516, 31 S. W. 144. Nor do we think it was necessary that either 'the county or the county judge should be made a party to the proceedings in the circuit court, in order to exercise this right. The circuit judge did not err in refusing to make the county a party, but the county judge still had the right to appeal by virtue of the statute, and the motion to dismiss the appeal must therefore be overruled.

The first contention on the appeal is that the circuit court had no jurisdiction of the ease, for the reason that the county-court did not make any order in the case that could be appealed from, and also for the reason that the record does not show that any affidavit for appeal was filed.

As to the affidavit, we said that the county judge had the right to defend his order on the appeal to- the circuit court, without being formally made a party to the proceeding. As he failed to move the circuit court to dismiss the appeal for want of an affidavit, it is too late to make the objection in this court. Crenshaw v. Bradley, 52 Ark. 318; James v. Dyer, 31 ib. 489; Wilson v. Dean, 10 ib. 309.

It seems to me somewhat doubtful as to whether the county judge made a final order in the case. He endorsed on the petition the words, “Ignored entirely.” The ordinary meaning of these words would be that he refused to take notice of it or to consider it, but a different meaning is sometimes given the word “ignore” in law. One meaning of this word, as defined in Webster’s dictionary, is to throw out or reject as false or ungrounded, as is said of a bill rejected by the grand jury. We have concluded that this is the sense in which it was used by the county judge. He, in other words, refused the prayer of petitioners, and rejected the petition.

But it is said that if he rejected the petition the order was never placed of record, and the appeal to the circuit court was premature. Our statute provides that appeals shall be granted to the circuit court from all final orders and judgments of the county •court at any time within six months after rendition of the same. Sand. & H. Dig. § .1264. A distinction is made between the rendition of the judgment and its entry, and it is not absolutely essential, under this statute, that the judgment should be entered of record before an appeal is taken. Little River County v. Joyner, 57 Ark. 185; Gray v. Palmer, 28 Cal. 416; Peck v. Courtis, 31 Cal. 208; Anderson v. Mitchell, 58 Ind. 592. The order of the county court should have been placed of record, but, no objection having been made on this ground in the circuit court, it' is too late to make such objection now.

The evidence before the circuit court on the hearing not having been brought up, and, finding no error, the judgment is affirmed.