Jones v. Coffin , 96 Ark. 332 ( 1910 )

Wood, J.,

(after stating the facts), x. Under section 4, article 7, of the Constitution of Arkansas the Supreme Court has “a general superintending control over all inferior courts of law and equityits jurisdiction over these courts is appellate and supervisory. “In -aid of its appellate and supervisory jurisdiction, it shall have power to issue writs of * * * prohibition.” Carr v. State, 93 Ark. 585. This court may issue writs of prohibition by virtue of its superintending control over inferior courts and in aid of its supervisory jurisdiction over these courts, when they are proceeding without jurisdiction. Reese v. Steel, 73 Ark. 66; Hanger v. Keeting, 26 Ark. 57; Russell v. Jacoway, 33 Ark. 191.

2. • It appears from the petition and the exhibits thereto and the allegations of the response that an appeal had been granted 'by the circuit clerk to “A. D. Bailey and H. C. Sanders in the matter of C. West and others, praying for an order prohibiting the sale of liquors, etc., within three miles of the public school house on block No. 3 of Hirsch’s Second Addition to Newport.” This appeal was granted 'by the clerk of the circuit court of Jackson County under 'the authority of section 1487 of Kirby’s Digest, 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 months after the rendition of the same, either by the court rendering the order or judgment or by the clerk of the circuit court, with or without supersedeas, as in other cases at law, by the party aggrieved filing an affidavit and pra3rer 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 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 order granting the appeal the circuit clerk directed the clerk of the county court “to forthwith make a transcript of all the proceedings, and transmit the same, together with all papers, books, etc., now on file in his office in said cause, above-mentioned, to the Jackson Circuit Court. Under section 1489 of Kirby’s Digest, after the appeal had been granted by the clerk of the circuit court, the clerk of the county court 'had no option or discretion in the matter. His duty, in the language of the statute, was to “transmit all of the original papers and a transcript of the record entries in the cause to the clerk of the circuit court.” The appeal having been granted under the statute, it was wholly immaterial, so far as the jurisdiction of the circuit court .was concerned, whether the appeal was properly or improperly granted.

By virtue of the appellate jurisdiction given it over the county court (art. 7, sec. 14, Const.), the circuit court had the power to inquire into the subject-matter of the appeal from the county court that had been granted by the circuit clerk under the authority of section 1487, supra.

The circuit court, by virtue of its appellate jurisdiction, had power to determine whether it had jurisdiction to proceed to hear the cause on appeal. The question of its own jurisdiction would be for the circuit court itself to pass upon, in limine. It was clearly within the power, and was the province and duty, of the circuit court to issue the rule on the clerk of the county court to bring up all the papers in the cause in which the appeal had been granted by the circuit clerk. This the circuit court could and should have done to enable it to determine whether it had acquired jurisdiction to proceed in the cause. It could not have intelligently passed upon the questions presented without having all the papers before it.

When an appeal is taken, the whole record and all the original papers should be sent to the circuit court. Section 1489, supra. See also Williamson v. Rutherford, 91 Ark. 85.

As to whether or not the appeal had been erroneously gyanted by the clerk of the circuit court, and whether or not A. D. Bailey and H. C. Sanders were parties to the prohibitory proceedings in the matter of C. West and others, were questions for the determination of the circuit court in deciding as to whether it had jurisdiction to proceed to try the cause on appeal. Bailey and Sanders claimed that they were parties to the prohibitory proceedings. Whether they were or not was a question for the .circuit court in determining its jurisdiction. If the court erroneously decided the question as to its jurisdiction to proceed with the cause, the remedy to the party aggrieved was by appeal. Kastor v. Elliott, 77 Ark. 148.

While the petitioner herein was not a party to the record, and hence could not have appealed, still an erroneous decision as to jurisdiction could in no manner have affected him. It was his duty to obey the order of the circuit court; and if by so doing he 'had been adjudged guilty of contempt by the county court, such judgment of the county court would have been void, and petitioner’s remedy against it adequate and complete.

The writ of prohibition “is never granted unless the inferior tribunal has clearly exceeded its authority, and the party applying for it has no other protection against the wrong that shall be done by such usurpation.” Russell v. Jacoway, 33 Ark. 191. See Weaver v. Leatherman, 66 Ark. 211; Reese v. Steel, 73 Ark. 66.

Petitioner had no right to the writ of prohibition, and his application for such writ is therefore denied, and his petition dismissed.