Counsel for appellant urge for consideration a point thought to have been overlooked by the court, namely, that the original organization of the district is void for the reason that one-fourth of a mile of the road authorized to be constructed lies entirely outside of the district.
The allegation in section "B" of the first clause of the remonstrance in the affidavit for appeal from the county court contains a statement that one-fourth of a of the road lies wholly in the southwest quarter of section one, township eleven north, range three west, and that tract was not included within the boundaries of the district. The plats in the record show that this charge is not well founded, but that the road, instead of running through the quarter-section mentioned above, is on the boundary line between that tract and another tract on the south, which is included in the district. It is true that the southwest quarter of section 1 was not in the boundaries of the original district, but it is a portion of the territory now sought to be annexed. It constituted error in the original proceeding not to include that tract land, but its omission was not such a defect as would render the organization void on the face of the proceedings Hill v. Echols, 140 Ark. 474. The purpose of the statute in authorizing the annexation of territory found to be benefited was to give an opportunity to correct just such errors as may subsequently develop and which do not on collateral attack, render the organization void.
This question was raised by demurrer to the remonstrance, and the rule is that on demurrer to pleadings the facts are treated as being true for the purpose of testing the sufficiency of the demurrer. This, however, *Page 682 is a special proceeding, and the allegation in the remonstrance comes as a part of the designation or assignment of the grounds of appeal, as provided by statute. Crawford Moses' Digest, 5403. This statute provides that an owner of real property may appeal from the judgment of the county court establishing the district and shall file an affidavit for appeal, "stating in said affidavit the special matter upon which said appeal is taken." The demurrer to the specification in the affidavit reaches back to the record in the case, including the petitions and the plats and the order of the county court establishing the district, and the court has the right, in testing the sufficiency of the demurrer, to consider the allegations in connection with the whole record. We think that the court was correct in deciding that the charge that a part of the road to be constructed lies outside of the district is not sustained by the record.
Counsel reargue some of the questions decided in the original opinion, but we adhere to the conclusions that there was no error in the proceedings, and that the judgment should be affirmed.