ARK.] BARKER V. WIST. 511
BARKER V. WIST. Opinion delivered April 7, 1924. . 1. COURTS—APPEALS FROM COUNTY COURTS.—In hearing appeals from the county court, the circuit court hears all cases de novo, whether administrative matters or judicial causes, so that, on appeal from an order of the county court creating a new township, the circuit court had jurisdiction to make an adverse find-. ing on the same testimony that was heard by the county court. 2. APPEAL . AND ERROR—APPEALS FROM CIRCUIT COURT.— . 0n appeal from the circuit court the Supreme Court does not try the case de novo, nor try the case on the preponderance of the evidence. Appeal from Madison Circuit Court; W. A. Dickson, Judge; affirmed. Sullins & Ivie, for appellant. The county court is vested with power, and it is its duty, to divide the county into convenient townships and to subdivide those already established as occasion may require. Sections 10288, 10290, C. & M. Digest. It is general principle that appellate courts will not review •questions the determination of which rest in tile . sound 'discretion of the lower Court. 7 R: C. •., p. 1073, § 110. The circuit •court should not have interfered with the finding of the county court, unless it ha.d different facts to base its decision on. No evidence was taken, and the case was submitted on the record made in the -county court. • • SMITH, J. A petition was filed by appellants 'and one hundred other citizens of Kentucky Township, in Madison County, with the countr court of that county, praying the court , to organize a new township, , to be known as Pettigrew Township, out of a portion of Ken7 tucky Township. A remonstrance was filed by appellees and eighty-eight other citizens of Kentucky Township. The court made an order •creating a new township, and Appellees prayed and perfected an appeal to the circuit court. The judgment • of the circuit court recites that ' the cause "was submitted to the -court upon the pleadings and petitions and remonstrances, maps, and plats, and,
512 BAR KER . V. WIST. [163 agreement of counsel as to the facts," and the court found the issues for the remonstrants, and adjudged that the order of the county court • be vacated and set aside, and the petitioners for the organization of the new township have appealed to this court. It is asserted that the circuit court heard only the same evidence as was submitted to the county court, and it is insisted that, inasmuch as the county court had fmmd from this evidence that the township should be organized, the circuit court was without jurisdiction to find against the new township on the same testimony. It is the insistence of the appellants that the question of dividing the territory of a county into townships is a matter within the discretion of the county court, and, if subject to review at all by the circuit court, the orders of the county court can be set aside only upon a showing of an abuse of discretion on the part of the 'county court. Learned counsel misapprehend the function of the circuitmourt in these matters. In the case of Horn v. Baker, 140 Ark. 168, we said that, upon the authority of § 33 of article 7 of the Constitution, appeals have 'been uniformly granted as a matter of constitutional right from all judgments of the county court to the 'circuit court, and no distinction had •een made between administrative matters and judicial causes, arid that apPeals were heard de novo. The subject was there thoroughly considered, and the authorities need not be again reviewed. , It was therefore within the power . of the circuit court to make a finding on the same . testimony heard by the counfy court adv,erse to the finding of the county court., .This results from the fact that the circuit court hears the cause de novo.. It is from the circuit court that the appeal comeS to thiS court, and we do not try the case de novo, and, as it does . not appear that the . judgment of the, circuit cou -rt was . arbitrary, but was based upon a , showing that there- waS im necessity for the creation of a new township, that jfidgment must be affirmed, for we
ARK.] 513 do not, on an appeal from the circuit court to this court, consider the question of the preponderance of the testimony. The .judgment of the circuit court is therefore affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.