Boillot v. Ratliff

Robert H. Dudley, Justice.

The issue is whether the appellant gave the notice required in order to contest the annexation of property to the Town of Beaver. The circuit court held that notice was not given. We affirm. Jurisdiction is in this court under Rule 29 (1 )(c) as the case requires construction of acts of the General Assembly.

Arkansas statutes provide for two principal methods of annexation. One method provides that a majority of the residents and property owners may initiate an annexation proceeding. See Ark. Stat. Ann. §§ 19-301 through 19-306 (Repl. 1980); Call v. Wharton, 204 Ark. 544, 162 S.W.2d 916 (1942). The other method is initiated by the municipal corporation. See Ark. Stat. Ann. §§ 19-307 through 19-307.4 (Repl. 1980).

The record on appeal in this case does not contain a report of the hearing below and the trial judge was not asked to settle and approve a proposed record. See Rule 6 (d), Rules of Appellate Procedure. The circuit court order, which supplies the only record of facts, refers to Ark. Stat. Ann. §§ 19-303, 19-304 and 19-305. From that, we conclude that the proceeding was originally commenced in county court by residents and property owners pursuant to Ark. Stat. Ann. § 19-301. Next, notice containing the substance of the petition and the date of the hearing was required to be published by the county clerk. Ark. Stat. Ann. § 19-302. Any person with an interest in the city or the area proposed to be annexed could have contested the annexation. Ark. Stat. Ann. § 19-102. A remonstrant in county court must have responded to the published notice by the date of the hearing. Such a response is in the nature of an answer. Any remonstrant who signed a petition would have been a party in county court. Barnwell v. Town of Gravette, 87 Ark. 430, 112 S.W. 973 (1908).

In thecase at bar the county court obviously granted the petition and ordered annexation. There is no evidence before us to show that the appellant entered an appearance in county court. The only evidence is that appellant filed a complaint in circuit court.

After the county court grants annexation, “no further action shall be taken for a period of thirty (30) days, and within that time any person interested may institute a proceeding to have the annexation prevented, in circuit court . . .” Ark. Stat. Ann. § 19-303. Appellant sought to prevent the annexation by filing a complaint in circuit court on July 7, which was within the thirty day period. The proceeding in circuit court was not an appeal. It was an independent attack on the annexation which is authorized by Ark. Stat. Ann. § 19-303. Appellant styled his pleading in circuit court a complaint and labeled himself a complainant. The applicable statutes, Ark. Stat. Ann. §§ 19-304 and 19-305 provide:

Notice of objection. — When any complaint shall be made in accordance with the preceding section to prevent an annexation of territory, notice thereof shall be given to the city or town authorities and the agent or agents of the petitioners.

Confirmation of annexation. — Acceptance of territory — Plants. — If no such notice shall be given within thirty (30) days from the making of the order of annexation by the County Court, the proceeding before said Court shall in all things be confirmed . . .

The only purported notice which appellant gave to the municipality during the thirty day period following the county court order was the mailing of a copy of the complaint to the municipal attorney. Since appellant was not serving notice of an appeal, but was commencing an independent attack on the annexation, the mailing of a copy of the complaint to the municipal attorney did not constitute notice. We construe notice in an independent action to mean service of process. ARCP Rule 4, and see A. O. Smith Harvestore v. Burnside, 282 Ark. 27, 665 S.W.2d 288 (1984). Courts cannot function without the use of formal process. Process is a writ or summons issued in the course of judicial proceedings. Ark. Stat. Ann. § 27-128 (Repl. 1979). Not only does issuance of a summons insure that defendant has been notified of the necessity to defend or be subject to a default judgment, but evidence of service apprises the court of its jurisdiction or lack of jurisdiction of the person served. Southern Kansas Stage Lines Co. v. Holt, 192 Ark. 165, 90 S.W.2d 473 (1936). For a discussion of what constitutes valid process, see Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982).

Affirmed.

Purtle and Hollingsworth, JJ., dissent.