Wilbert Hervey and Carolyn Hervey v. John Garrett

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION I

WILBERT HERVEY and

CAROLYN HERVEY

APPELLANTS

V.

JOHN GARRETT

APPELLEE

CA00-728

May 9, 2001

APPEAL FROM THE CONWAY COUNTY CIRCUIT COURT

[NO. CV98-196]

HON. WILLIAM R. BULLOCK,

CIRCUIT JUDGE

AFFIRMED

Wilbert and Carolyn Hervey, appellants, filed in the county court of Conway County a petition to establish a road. The petition was denied. Appellants filed a notice of appeal from the county court order and filed in the Conway County Circuit Court a petition to establish a road. However, they did not comply with Arkansas Inferior Court Rule 9 by filing within thirty days of the county court's judgment a record of the county court proceedings or an affidavit showing that the county clerk had refused or neglected to prepare and certify a record for filing. After a hearing, the circuit court dismissed appellants' petition, holding that it lacked jurisdiction because appellants had failed to comply with the filing requirement of Rule 9. On appeal to this court, appellants contend that the circuit court erred in holding that Rule 9 is applicable to appeals from county court to circuit court

and, therefore, erred in holding that appellants' failure to comply with the rule's requirements deprived the circuit court of jurisdiction. We affirm.

In the recent case of Pike Avenue Development Co., Inc. v. Pulaski County, 343 Ark. 338, 37 S.W.3d 177 (2001), the supreme court held that the Inferior Court Rules govern the procedure in all civil actions in the inferior courts (including the county courts) of this state, that the thirty-day appeal requirement of Rule 9 is both mandatory and jurisdictional, and that the circuit court correctly dismissed an appeal where neither the record nor a proper affidavit was filed within the thirty-day period. We conclude that that case controls the issues presented here. Therefore, we affirm the circuit court's decision by this memorandum opinion pursuant to section (d) of our per curiam In re: Memorandum Opinions, 16 Ark. App. 301, 701 S.W.2d 63 (1985).

Affirmed.

Vaught and Hart, JJ., agree.