Lead Opinion

Wood, J.,

(after stating the facts). 1.. The appellant testified, in part, as follows: “He never saw the original order of the county court appointing Jewett and himself commissioners; his employment as architect was a ¡short time ¡after he declined to accept the position of commissioner and Jewett was appointed sole commissioner by the county court. Some time after his appointment there was common talk of litigation and controversy between the city and the county over the construction of a courthouse building on block 515. He wias present as a spectator during the ¡argument of these cases before the chancellor, but not being a lawyer he could not keep up with the proceedings, but was informed that as a result the chancery court enjoined the building of a courthouse in the corner of block 515, where it was .at first contemplated to' build. 'He never siaw or read ¡any cf the pleadings in the case ¡and got his information from the public press and common report.”

While appellant was not a party to the proceedings to determine the title to the block and lot upon which the courthouse was to be erected, it appears from his ■own testimony that he wias cognizant that proceedings had been instituted to test the title of the Fort Smith District to the lot upon which the courthouse was ordered to 'be erected.

(1) The county court, under our statute, had no authority to order the erection of a courthouse upon land that did not belong the the county of Sebastian. The statute provides that the court shall designate the place where to erect any county building on land belonging to the county ¡at the established seat of justice. Kirby’s Digest, § 1014. See also § § 1015 ¡and 1016.

(2) In the order appointing the commissioner .the court directed that proceedings he forthwith instituted for the purpose of determining the rights of the district to erect the courthouse upon the part of the block designated or any other part of the block where it was proposed to erect the courthouse. Under this order of the court the commissioner could not proceed to make any valid contract looking to the erection of the courthouse until the title to the site upon which it was proposed to build was determined by the court to be in the appellee. The record shows that the county court and its commissioner and the appellant all knew that the alleged title of the Fort Smith District to the land upon which it was proposed to ibuild and the right to build thereon were in question. Hence, the court included in its order directing the courthouse to be built an order directing suit to be instituted for the purpose of testing the title. But, notwithstanding this knowledge, the court and its commissioner proceeded in an attempt to have the courthouse constructed.

(3-4) The appellant was bound to take notice of the statute prescribing that the county could only erect a courthouse upon lands belonging to the county and he was bound to take notice of the fact that neither the county court nor its commissioner could enter into a contract to erect a courthouse upon any other land, and whether he was a party to the proceeding by which it was proposed to test the title or not, his own testimony shows that he had notice of such proceedings, and having notice, he could not in good faith enter into any contract with the commissioner to furnish plans and specifications for such building until it was first determined that the county had title to the site, and that therefore the county court and' the commissioner had authority to enter into a contract for the erection of a courthouse upon such site.

(5) It is well settled that the county court, under our Constitution, being created and given jurisdiction for special purposes, can only exercise such powers as are expressly .conferred upon it by tbe Constitution and statutes, or those that .arise by necessary implication from the powers expressly granted. 11 Cye. 390; Wheeler v. Wayne County, 24 N. E. 626; State v. True, 95 S. W. 1032, and other authorities cited in appellee’s brief.

As we construe the decree and opinion of the chancery court, rendered on August 12,1912, the court did not determine that the Port Smith District had the title and the right to build upon the lot where the old courthouse was situated. The only question presented for determination, at least so far as indicated by the opinion and decree, was as to whether or not the Port Smith District of Sebastian County had power to locate the proposed new courthouse upon the northeast corner of block No. 515. The question of whether it had the right to build upon the old site was not in issue, at least so far as is shown by the opinion and decree to which reference is made in the abstract, and was not passed upon. The court’s order and decree only restrained the county court and its commissioner from contracting for the construction of the courthouse “upon the northeast corner of said block or upon any other unoccupied portion of said block.” This was by no means a finding and decree that the county court and its commissioner had the right to contract for the erection of a courthouse upon the portion of the block that was occupied. And as evidence that this was not the issue passed upon by the chancery court, in a proceeding afterward instituted, when that issue was directly involved, the court entered a decree “perpetually enjoining the district from-constructing a courthouse on the present site and from tearing down the old courthouse for that purpose.” At the time, therefore, that the commissioner let the contract for the construction of the courthouse, and when the county court at a succeeding day entered .an order directing the courthouse to be erected on the site of the present building instead of on the corner of block 515, it had not been determined by the chancery court that the title to the site was in the county of Sebastian. The judge of the county court, the commissioner .and the appellant had knowledge of this fact, and their contracts made with such knowledge were not entered into in good faith, and were therefore void.

It is unnecessary to go further. The evidence- was sufficient to warrant a finding that the appellant, -having notice that there was litigation pending involving the authority of the commissioner to make the contract with him, at the time he alleges that it was made, -and that the commissioner would have no right to enter into such contract' until it was settled by the courts that he had such authority, can not recover. ■ ■

The court was, therefore, correct in declaring that the contract between the appellant and the commissioner, being without authority, did not make it a legal contract, binding on the Fort Smith District of Sebastian County.

(6) The order of the county court allowing the appellant the sum of $1,200 for Ms services at the - July term, 1912, was not treated by the court as a final-order,' for it appears that at a succeeding term the court, with appellant’s acquiescence, reqmred the appellant to-verify, his whole claim and then allowed the same in the . sum of $5,820, wMeh was the full -sum -that appellant claimed to be due Mm, including the $1,200. It was from the order of the county court setting aside this allowance of $5,820 that appellant appealed to the circuit court, and it is from the order of the ciroMt court affirming the decision of the county court that appellant prosecutes this appeal. Appellant acquiesced in the order setting aside the first order allowing Mm $1,200. Having consented to it then, he could not thereafter assert- -that the order allowing him $1,200 was final.

There was no error in the refusal of the court to enter judgment in favor of -appellant*for the sum of $1,200.

The judgment of the circuit court is in all things correct, and it is therefore affirmed.

Dissenting Opinion

McCulloch, -C. J.,

(dissenting). The order of allowance -of the -sum of $1,200 to appellant made by the 'county court on August 30, 1912, was a final judgment which passed beyond the control of the count with the expiration of the term. No appeal was taken from that judgment ¡and the court had no power to set it aside ¡at a later term. The fact that the •claim was an unjust one and founded on no legal liability of ¡the ¡county afforded no ground for setting the judgment aside ¡after the expiration of the term unless fraud wias perpetrated in its'procurement. Fraud which vitiates a judgment must be in procurement Qf a judgment, and not merely in the original cause of action. Scott v. Penn, 68 Ark. 492; James v. Gibson, 73 Ark. 440; Boynton v. Ashabranner, 75 Ark. 415; Parker v. Bowman, 83 Ark. 508; Davis v. Rhea, 90 Ark. 261.

Appellant did not consent'to the order setting aside the judgment, nor-can it be justly said that he acquiesced therein. He was never put in ¡a position to complain of an adverse judgment of the ¡court until October 30, 1912, when the judgments of' allowance in Ms favor were set aside, and then he promptly appealed to the circuit court. I fail to perceive, therefore, how it can be said that he consented to the setting ¡aside of Ms judgment, and I dissent from that part of the.decision.