Jackson v. Elder

63 S.W.2d 991 | Ark. | 1933

STATEMENT BY THE COURT.

Appellant, George H. Jackson, on February 18, 1933, filed his complaint in the Montgomery Chancery Court, which, in effect, alleged: That, on the ____ day of January, 1931, he was appointed collector for Montgomery County and duly qualified as such; that during the years 1931 and 1932, under said appointment, he performed the duties of collector of taxes; that during the year 1931 he earned commissions on tax collections in the aggregate of $1,894.03; that, through a mistake made by the county court of Montgomery County at its July term, 1931, he was credited on account with commissions of only $600 therefor, leaving a balance due him of $1,294.03 as commissions earned by him during 1931; that during the year 1932, as such collector, he earned $1,878.43, but was allowed by the county court in settlement with only $650, leaving a balance due him for collecting taxes for 1932 of $1,228.43; that plaintiff has a valid claim against Montgomery County in the aggregate of $2,522.46 for commissions earned by him as county collector for and during the years 1931 and 1932, of which he has been deprived through mistake made in his settlement as aforesaid. It was further alleged that appellant had on deposit in the name of J. A. Jackson, collector, in the defendant Bank of Montgomery County, the sum of $1,105.83; that, although said sum of money stands to the credit of G. A. Jackson, collector, it in fact belongs to George A. Jackson, and that said George A. Jackson, collector, should be declared a trustee in behalf of plaintiff. It was further alleged that defendant, Morris Elder, is the treasurer of Montgomery County and was at all the times complained of.

The prayer was that plaintiff have an accounting of his settlements with Montgomery County during the years 1931 and 1932, and that a master be appointed for this purpose; that the erroneous items in said account be eliminated, and a correct account stated between the parties; that he have judgment against Montgomery County for the sums due him, and that Morris Elder, county treasurer, be enjoined and restrained from honoring any warrants drawn against said funds until plaintiff shall be first paid; that in the end a permanent injunction be granted against the Bank of Montgomery County restraining and enjoining it from honoring any checks against his balance there, and for all other general relief.

To the above complaint, defendants demurred as follows: First, the court has no jurisdiction of the subject-matter; second, there is a defect of parties defendant; third, the complaint does not state facts sufficient to cause state of action.

This demurrer was sustained by the chancellor, whereupon plaintiff's complaint was dismissed for want of equity, from which decree this appeal is prosecuted. (after stating the facts). Appellant insists that the Montgomery County Chancery Court had jurisdiction of the parties and subject-matter set forth in his complaint, and cites as authority therefor, first, Big Gum Drainage District v. Crews, 158 Ark. 566,250 S.W. 865. In this case the drainage district instituted suit against Crews, as collector of Mississippi County, in which it was alleged that Crews, as collector of Mississippi County, had collected certain drainage taxes upon property situated in the district and had failed to account for the' same in his settlement with the treasurer of the county, and had failed to account to the district therefor. This court held that the chancery court of Mississippi County had jurisdiction of the subject-matter and parties. This case is no authority for the position here assumed by appellant. The collector in the Crews case had collected the funds from the property owner and had either failed or refused to account to the district or to the treasurer of Mississippi County therefor, and this court held, in effect, that the district was entitled to judgment against Crews for the sum withheld. We fail to see any similarity between the case at bar and the Crews case. It is insisted that the case of Gladish v. Lovewell, 95 Ark. 618,130 S.W. 579, is decisive of this case. This was a taxpayer's suit against a collector to require an accounting, and is in no respect similar to the suit here discussed. We are also cited to the case of German National Bank v. Moore, 116 Ark. 490, 173 S.W. 401. This was a suit by a depositor in the bank upon a lost certificate of deposit. Just how this case is thought to be in point is not pointed out in briefs. Our conclusion is that it is no authority for the position here taken.

It will be noted from the allegations of the complaint that this suit was instituted on February 18, 1933, and charged generally that the county court of Montgomery County through mistake wrongfully, erroneously and illegally transferred a credit from plaintiff's account to that of another. These allegations do not constitute a charge of fraud. On the other hand, they come squarely within the purview of 10,165 of Crawford Moses' Digest as amended by act 339 of 1927, which said amendatory act reads as follows:

"When 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 one year from the date of such settlement, to reconsider and adjust the same."

Had appellant filed his claim in the county court of Montgomery County on February 18, 1933, instead of in the chancery court, he could and would have received adequate relief under his July, 1932, settlement. If relief had been denied him in the county court, an appeal could have been perfected to the circuit court.

This court had many times held that the county court has original exclusive jurisdiction to audit, settle and direct the payment of all demands against the county. Chicot County v. Crews, 47 Ark. 80, 14 S.W. 469; Shaver v. Lawrence County, 44 Ark. 224.

It suffices to say that appellant had a plain, adequate and complete remedy under 10,165 of Crawford Moses' Digest, as amended by act 339 of 1927, which afforded him an exclusive remedy for all the things complained about in his complaint.

For the reasons aforesaid, the decree is affirmed.