ARK.] SKINNER V. MAYFIELD 741 CHARLES SKINNER V. MELVIN E. MAYFIELD, JLDGE 5-4848 439 S.W. 2d 651
Opinimi Delivered April 21, 1969 1. Prohibition—Nature & Grounds—Want or Excess of Jurisdicr tion.—When a trial court is proceeding in a matter where it is entirely without jurisdiction, then the Supreme Court in the exercise cif its supervisory control has authority to prevent the unauthorized proceeding by issuance of a writ of prohibition. 2. Proh:bition—Nature & Grounds—Errors & Irregularities.— Writ of prohibition is never issued to prohibit a trial court from erroneously exercising its jurisdiction unless the tribunal is wholly without jurisdiction or is threatening to act in excess of its jurisdiction. 3. Prohibition—Jurisdiction Depending on Question of Fact.—A writ of prohibition will not lie where the jurisdiction of the trial court depends upon a question of fact. 4. Prohibition—Proceedings & Relief—Scope of Inquiry.—On application for writ of p rohibition to restrain circuit court from entertaining appeals by certain citizens and taxpayers from a county court order granting annexation of contiguous territory to City of El Dorado, writ denied where Supreme Court was unable to determine from the transcript whether the circuit court was without jurisdiction.
742 SKINNER V. MAYFIELD [246 ••Petition .for Writ of Prohibition to Union Circuit Court, Second Division; Melvin Mayfield, Judge; .writ denied. .Brown,.Complon, Prewett & Dickens for petitioner. Shackleford & Shackleford for respondent. FRANK HOLT, Justice. This controversy results froM an annexation' diSpute. In this original proceeding -the-Petitioner seeks a'writ of prohibition to restrain the respondent from entertaining appeals-by certain cit-- izens and taxpayers from a county court order _which granted the annexation of a contiguous territory to the City of El Dorado. The city's . petition for the annexation, has.ed. upon prior approval of the qualified voters, was filed in the Union.:County: :Court on December 19, 1967. The-first order for annexation by the county court was made on January 29, 1968. . On April 19, 1968, the. county court rendered a nune pro tune amendment to that order for annexation. This corrected• an erroneous 'description and eXcluded a small . strip Of land . owned by the'petition-et. ; The objecting: taxpayers first . filed . a . ri affidavit tot . ..appeal as. aggrieved, parties . on -May 15, 1968, from the April nunc pro tune order. Then,. on June 10, the taxpaYers filed . an . affidaviffor.appeal:as.aggrieved Par-- ties from - the January ,order. for annexation.. Both. appeals were : granted by the Union :County Court to the circuit court by orders dated May 15 •and June 10,-1968, respectively. • , The. respondent, Union Circuit . Court, Seeend-Division, -. consolidated the • appeals - and denied petitioner's motion to dismiss the appeals and strike-the affidavits for•appeals. - Also denied was a similar mo-- tiort: by the City of El Dorado. .The petitioner asserts that nnleSs the respondent circnit court is prohibited and restrained, it will entertain both. appeals .frOm the . county...court's- order which annexed the..contigueus territory to the City of El Dorado. The petitioner contends that
ARR.] SKINNER V. MAYFIELD 743 neither appeal Was thnely filed because the appeals failed to : comply -with the thirty-day- requirement as provided in Ark. Stat. Ann. § 19-307 (Repl. 1968). It is also petitioner's position that the nunc pro tune order did not extend the thirty-day period and cites Richardson v. Sal-lee; 207•Ark. 915, 183 S.W. 2d 508 (1944) to that effect. It is the taxpayers' (appellants from the county court order) position that both appeals were timely filed and that the county court's annexation order should be reversed and made to • include the small strip of •land which was .excluded. They rely upon Ark. Stat. Ann. § 27-2001 (Supp. 1967) which provides •that appealS are granted as a matter of right to the circuit court from all final orders or judgments' of the county court at any time within six months. See, also Pike v. City of Stutt-gart, 200 Ark. 1010, 142-S.W. 2d -233 (1940) ; Jones v. Coffin, 96 Ark. 332, 131 S.W. 873 (1910). It is argued. thal this particUlar statute is applicable in the ca-se • at bar because their appeals are not complaints to prevent annexation. To the contrary, the purpose- -of -their appeals is to affirm the annexation of . the entire contiguous area which, therefore, Would inelUde petitioner's lands. - It is, of course, settled law in our state that when a trial court is proceeding in a matter where it is •eutirely without jurisdiction, then the supreme court; in'tbe exercise. Of it§ superVisory control, has the. authority 10 prevent the unauthorized proceeding by the issuance of a writ of prohibition. Monette Road Imp. Dist. v. Dud-ley, 144 Ark. 169, 229 S.W. 59 (1920) ; Norton v. Hutch, ins, Chancellor, 1.96 Ark. 856, 120 S.W. 2d 358 (1938). It is, hoWever, a well established rule that the extraordinary writ of prohibition is never issued to prohibit a triul : court from erroneously exercising its jurisdiction unless the tribunal is wholly without jurisdiction or is: threatening to act in exeess of its jurisdiction. Bassett v. Bourland, 175 Ark. 271,299 S.W. 14 (1927). A writ of prohibition will not lie where the jurisdiction of the
744 [246 trial court depends upon a question of fact. Coley v. Amsler, Judge on Exchange, 226 Ark. 492, 290 S.W. 2d 840 (1956). In the case at bar we are unable to determine from 4 c:fie meagc-r transcript whether the litigants wlao appealed to the circuit court really had a grievance that could be presented by an appeal rather than by a separate complaint filed originally within thirty days, in the circuit court. Therefore, we are unable to say that the circuit court is without jurisdiction. Writ denied. BYRD, J., concurs.
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