53 Ark. 476 | Ark. | 1890
The question in this case arises upon a demurrer to the answer of appellant to the petition of appellee for a writ of mandamus to compel appellant, as collector of revenue in Ouachita county, to receive certain county warrants in payment of county taxes assessed against the property of appellee, which warrants had been tendered by appellee in payment of said taxes, and refused-by appellant as ■such collector.
Appellee in his answer pleaded the order and judgment ■of the county court made at its April term, 1876, barring the scrip involved in this suit, pursuant to the order and judgment ■of said court before then made, that all such scrip, as should not be presented for examination and re-issue or cancellation before that time, should be forever barred, and averred in his answer that notice of said order.calling in the warrants, which was made at the January term previous, was found by the court to have been given as required by law and the previous order of the court, and it was alleged in the answer that the judgment of the county court recited that “due notice of said order had been given as required by law.”
The ground of the demurrer was that the answer did not show that the proper notice to file the warrants for cancellation and re-issue had been given. The proceedings and judgment of the county court were exhibited with the answer. The demurrer was sustained, and the case brought up by appeal.
Were the allegations in the answer sufficient to constitute a defense to the action?
In a suit in equity the rule is otherwise, and an exhibit to the complaint or answer is part of the record, and, if it is the foundation of the action or defense, it will explain and even control the averments in the complaint or answer. Beavers v. Baucum, 33 Ark., 722.
Reversed for error in sustaining demurrer to answer, and ■remanded.