State ex rel. Izard County v. Hinkle

opinion. English, C. J. This action was commenced 26th November, 1879, and was brought in the name of the State, for the use of Izard County, as provided by the Act of 27th February, 1879. (Acts of 1879, p. 13.) The court below no doubt sustained the first cause of demurrer, (want of jurisdiction,) to the fifth paragraph of the complaint, because though the order of allowance, set forth in that paragraph, had been rescinded by the County-Court, at the term at which it was made, and when under-its control, yet the sum claimed in the paragraph, being but $22, was not within the jurisdiction of the Circuit 'Court. And the court doubtless sustained the second cause of •demurrer to each and all of the other eight paragraphs of the complaint, because it was unwilling to treat the orders <of allowance therein set forth, when questioned collaterally, ■as not having the solemnity and conclusiveness of judgments. This court has treated orders of the County Courts, allowing claims against counties, -as well as orders of the Probate Courts, allowing claims against estates of deceased persons, as in the nature of judgments. Rieff et al. v. Conner et al., 10 Ark., 241; Desha Co. v. Newman, 33 Ib., 783; Carnall v. Crawford County, 11 Ib., 604; Borden v. State, Ib., 519. Allow¡anc e s o f 'comYhow ¡reviewed. An order of allowance, made by the County Court, may . ° J J ke reviewed or opened in several modes : First. By appeal to the Circuit Court. Second. It may be quashed on Certiorari by the Circuit Court, where it appears from the face of the record that the claim allowed was not, by law, a charge against the county, and the court had no’ authority or discretion to allow it upon any evidence that might have been introduced. Jefferson County v. Hudson, Sheriff, 22 Ark., 595. Third. The statute empowers the County Courts, as often as once in three years, to call in all outstanding warrants, to examine and cause them to be renewed, if legally Issued, and, if not, to reject them. Thus the Legislature ■has empowered County Courts to review allowances made ■at previous terms, and, if made without authority of law, to 'reject warrants issued upon them, and also to reject warrants otherwise illegally or fraudulently issued, as held in. Desha County v. Newman, Sup. Fourth. An order of allowance may be opened in Chancery, as any other judgment, for fraud, accident or mistake, on a proper case made. In Shirk v. Pulaski County, 4 Dillon, 209; the suit was upon warrants issued upon allowances made for live and ten times the value of the claims, in violation of law, and in fraud of the public ; and the court upon equitable principles* cut down the- warrants so as to make them represent the-value of the claims on which they were issued. In this case it is alleged in this complaint that the items, in the several accounts objected to were allowed by the-County Court under a misapprehension of the law governing the fees of officers, at the time the allowances were made, but no fraud is alleged. To treat the orders of allowance as null and void in. this-suit, to strip them of all solemnity and conclusiveness as judgments, questioned as they are, collaterally, would be-going a length which this court has never sanctioned ;• and there is no necessity for it when other remedies, as above-shown, are provided. But there is a further trouble in this case. It is in the nature of the common law action for money had and received by appellee, at different times, for •the use of Izard County. The complaint, taken as a whole, alleges in substance, that at each of the nine terms- of the-County Court, an account was allowed in favor of appellee for a sum named, and a warrant ordered and issued by the clerk upon the treasurer for the amount, and that in each of the accounts there was one or more items for fees not allowed by law ; but it is not alleged that any of these warrants were paid by the treasurer, or that appellee- obtained any money upon them. Eor anything that appeared in the complaint as amended* these warrants may all have been in the hands of appellee when the suit was brought, part of each warrant, according to the theory of complaint, being for fees not allowed by .law. See Abbott’s Trial Evidence, pp. 277, 275, etc.