112 Ark. 91 | Ark. | 1914
(after stating the facts.) Under the allegations of the answer, appellant Fuller was acting in entire good faith in procuring the order allowing the commissions, and did nothing to procure this order except to file the report, or settlement, in which the allowance was asked. That he was not entitled to the commission is settled by the case of Honey v. Green County, 102 Ark. 106.
This suit was brought more than two years after the allowance in question had been made and appellants say that, under section 7174 of Kirby’s Digest, a judgment of the county court can not be reviewed except upon proof of fraud in its procurement. That section reads as follows: “Whenever any error shall be discovered in the settlement of any county officer made with the county court, it shall be the duty of the court, at any time within two years from the date of such settlement to reconsider and adjust the same.” It is said that the case of State v. Perkins, 101 Ark. 358, is authority for the proposition that the demurrer to the answer was erroneously sustained. In that case the county court had erroneously allowed a collector, upon the approval of his collector’s account, a commission of 5 per cent, and this seems to have been done in accordance with a custom to that effect which had obtained in that county. The county court’s mistake and error consisted in computing the commission at 5 per cent on each separate fund, instead of computing it upon the aggregate collection, upon the graduated basis fixed by the statute. Kirby’s Digest, § 7072; Wilson v. State, 51 Ark. 212. It was said in the Perkins case, supra, which was brought more than two years after the confirmation of the collector’s settlement, that there was no proof of any fraud or concealment in procuring its confirmation, and the proceeding was dismissed on that account. But this case is distinguished from that case, because there a commission was due the collector and a mistake was made in the amount of the commission allowed, while in the instant case no commission could be allowed, and d't was a fraud in law to make a claim for any commissions, or to be allowed any.
In the case of State v. Turner, 49 Ark. 311, the accounts of a collector were attacked by a bill in chancery, but it appeared from the allegations of the bill that the collector was not in default, either in settling with the county court, or in paying over the amounts that were found due. The complaint, however, alleged that the court had been imposed upon and overreached, and the State, county and school districts for which the funds had been collected had been defrauded in making these settlements, whereby a less amount was received than was actually due, and that since more than two years had elapsed after the date of such settlement before the errors were discovered, it was too late for the county court to interfere and correct these errors. The question arose whether the sheriff and his sureties could be sued in equity, and it was there said: “Our conclusion is, that when frauds, errors and improper credits are discovered in a collector’s settlement after the lapse of two years, when the county court has lost control of the matter, relief may be had in chancery upon an allegation of fraud, because no other court is competent to grant relief, the settlement being conclusive at law; and the securities on his bond may be made parties and a decree rendered against them, on a recovery against him, for the reasons that are stated in Clark v. Shelton, 16 Ark. 480. ’ ’
The allowance of the commission, in the face of the fact that no statute gave authority therefor, is a fraud in law, against which equity will relieve, after the two years have expired and the judgment has passed beyond the control of the county court, and the decree will therefore be affirmed.