Polk v. Road Improvement District No. 2

185 S.W. 453, 123 Ark. 334, 1916 Ark. LEXIS 469

• Court: Supreme Court of Arkansas
• Decided: April 10, 1916
• Status: Published

Opinion

Kirby, J.,

(after‘stating the facts). If it be conceded that the petition for certiorari stated a cause of action and-that the demurrer thereto should have been overruled, it can make no difference- here in the review of the proceedings, if the judgment of the court was correct in dismissing same, since the record shows the matter was heard upon the petition, the response thereto and the exhibits showing the record and proceedings of the county court and the viewers in the establishment of the road and the assessment of damages for the lands taken, as well as the affidavit in support of the allegations of the petition as to the want of notice of such proceedings.

(1) The county court acquired jurisdiction to take the initial steps for establishing the proposed highway upon presentation of the petition by ten freeholders of the county after notice given by publication as required by the statue. Howard v. State, 47 Ark. 440; Lonoke County v. CarlLee, 98 Ark. 346. .

(2-3) The court being satisfied that the notice required by statute had been given had the right to and did appoint three viewers to view the proposed route, assess the damages and report thereon. Proof of publication of the notice of the presentation of the petition shows that it was published for five weeks prior to the beginning of the July, 1913,. term of the county court, at which- the petition was presented, and the judgment of the county court, upon the report of the viewers and assessment of damages shows “that due and proper notice had been made by the petitioners to the property owners, whose property is to be traversed by the said proposed road as required by law and no legal objections to said report have been made or filed,” and the court having jurisdiction of the proceedings, its judgment approving the report -and awarding the damages as assessed was binding upon the land owners. If in fact appellant had no notice of the meeting of the viewers for the assessment of damages, it would have been but an irregularity that did not affect the jurisdiction of the court and could not have rendered its judgment void. Lonoke County v. CarlLee, supra:

The county court having jurisdiction of the matter of the proposed road, the court committed no error in de ■ nying the petition for certiorari and dismissing it, upon the record as presented here and even though the judgment recites that the demurrer to the petition was sustained, it further recites that the whole matter Avas heard and the court found that the petitioner was not entitled to the relief prayed and the decision being right the judgment is affirmed.