Cole v. Schoonover

Kirby, J., (after stating the facts). It is conceded that the warrants described in the complaint are barred and worthless if the judgment of the county court calling in the warrants for registration on the 5th day of July, 1912, is valid. Section 1175, Kirby’s Digest, provides: “Whenever the county court of any county may deem it expedient to call in the outstanding warrants of said county in order to redeem, cancel, reissue or classify the same, or for any lawful purpose whatever, it shall be the duty of said court to make an order for that purpose, fixing the time for the presentation of said warrants which shall be at least three months from the date of such order.” (1) This authorizes the county court when it deems it expedient, to call in the outstanding warrants, “In order to redeem, cancel, reissue or classify the same, or for any legal purpose whatever,” and certainly the ascertaining of the actual financial condition of the county is such legal purpose within the meaning of the statute. It is often necessary to determine the amount of outstanding county scrip that the court and the citizens of the county may be fully advised what amount of revenue is necessary to be raised, and in Parcel v. Barnes & Bro., 25 Ark. 265, the court said: “The intention of the Legislature is too clear to admit of any doubt * * * and there can be no question but the Legislature intended to give the county courts such control over the warrants or scrip of the county as would enaible them to take such action as would be most advantageous to the public, and fully intended that all county scrip issued thereafter should be subject to such conditions and restrictions.” It is next contended that there was no final judgment of the county court rendered, barring the warrants not presented for registration at the time the court order required they should be presented. Section 1177, Kirby’s Digest, provides: “All persons who shall hold any •warrants of said county and neglect or refuse to present same as required by the order of tibe court and the notice aforesaid shall thereafter be forever debarred from de-' riving any benefits from their claims.” The court held the statute mandatory in Cope v. Collins, Admr., 37 Ark. 649, and said, “If the calling order was made, and the notice given * * * the statute declares the consequence of a failure to present the warrants—'that is, that the delinquent holders shall thereafter be forever debarred from deriving any benefits from their claims.” (2) Upon the failure of any holder of a county warrant to present the same in obedience to a proper call therefor by order of the county court, he is barred by the statute, from the collection of the warrant thereafter without any further declaration of that fact by judgment of said court. In C., R. I. & P. Ry. Co. v. Perry County, 87 Ark. 406, the court said: “It has often been held by this court that the statute authorizing such proceedings -must be strictly complied with and that all facts necessary to give the court jurisdiction must affirmatively appear in the record of the proceedings.” Gibney v. Crawford, 51 Ark. 34; Nevada Co. v. Williams, 72 Ark. 394. No presumption as to the existence of facts can be indulged in aid of the record nor on the other hand can any be indulged to defeat the validity of the proceedings. In Nevada Co. v. Williams, 72 Ark. 397, the court said: “In special statutory proceedings of this kind, the recital of due notice must be read in connection with that part of the record which gives the official evidence prescribed by the statute. No presumption will be allowed that other or different 'evidence was produced, and if the evidence in the record will not justify the recital, it will be disregarded.” It will be seen from these decisions that the recital •of due notice given in the judgment is not only not conclusive of that fact, but that no presumption will be indulged that other or different evidence was produced showing such transaction, than that disclosed by the record and therefore another judgment or order of the county court after the warrants are called in and registered, reciting that due notice of the call therefor had been given would add nothing to the validity of such order or judgment, the fact being allowed to be questioned in any proceeding concerning the validity of such warrants thereafter. The testimony in the record shows that due notice was given as required by law of the calling in of the warrants of the county and the judgment having already been made debarring all warrants that were not properly presented upon the day fixed therefor was sufficient to prevent the holders thereof from thereafter deriving any benefit therefrom. The affidavits in proof of publication of the order were made by the editors of the papers in which it was published, and showed that one, the Times-Dispatch, was a weekly newspaper, having a bona ficle circulation in Lawrence County, State of Arkansas, and that the order was published on certain days, the last insertion being on a date more than thirty days before the time fixed by the court for the presentation of the warrants; and the other, the Pocahontas Star-Herald, a newspaper published weekly in the town of Pocahontas, Randolph County, State of Arkansas, and having a bona fide circulation in said county and State and that the order was published for eight weeks in succession, the last date being more than thirty days before the time fixed for the presentation of the warrants. Neither of the affidavits state that the papers were regularly published in the county for one month before the date of the first publication of the order, but this' is no longer required and the proof of publication was sufficient. It follows that these warrants not having been presented for registration at the time fixed by the order of the county court requiring it, are barred and no longer valid subsisting claims against the county, and the court erred in not so finding. Its judgment is reversed and the muse remanded with directions to enter a judgment denying the mandamus.