Pettigrew v. Washington County

43 Ark. 33 | Ark. | 1884

Smith, J.

By a settlement had by the county clerk with the collector of the revenue of Washington County, for the year 1879, it was ascertained that special school taxes belonging to various school districts, aggregating more than $2,300, had gone into the hands of the collector, but bad not been paid into the county treasury. A scire facias was issued against him and his sureties to appear in the County Court and show cause why judgment should not be rendered against them, for the amount of the defalcation. They appeared aud by demurrer questioned the jurisdiction of the Court. This point being determined against them, they answered. A trial was had and judgment rendered in favor of Washington County.

, orr peal/01' a“ It was sought to quash this judgment upon certiorari. This writ cannot be used as a substitute for appeal for the mere correction of errors of an inferior court. Haynes v. Semms, 39 Ark., 399 and cases cited.

It was alleged in the petition and found as a fact, that the petitioners had lost their right of appeal from said judgment without laches or fault on their part. The judgment was' rendered at the July term 1882 of the Washington County Court. The law then in force required the appeal to be taken at the same term or the next succeeding term. Gantt’s Dig. Secs. 705, 1193. An appeal was prayed orally at the July term,'andin writing at the next term, and an appeal bond was filed, which the court disapproved because it was executed only by the defendants in the judgment, without sureties. However, no action was had as to the grant or refusal of the appeal. The application was set down for hearing at 9 A. M. of a certain day, at which time counsel attended, but the court had adjourned an hour before to the next regular term.

mu'st^oom" grant>UIap° sea1' -N"ow bhe right to appeal being absolute, without regard t° merits, if the County Court refused to grant the appeal, or to act upon the application, the remedy was by mandamus to compel it to discharge a plain duty, in the performance of which it was invested with no discretion. Nor was this remedy an ineffectual one, by reaspn of the fact that the County Court had finally adjourned for the term, and the next term would be too late to appeal; since at a subsequent term it might have been compelled to make the necessary order by a nunc pro tunc entry. McCrary v. Rogers, 35 Ark., 298.

The circumstances detailed might furnish ground to enjoin the execution of the judgment, if the defendants have any meritorious defense to the action. , But nothing is disclosed to invalidate the judgment itself. The court which rendered it had jurisdiction both of the subject matter and of the persons of the defendants. Gantt’s Dig. Sec. 5279; Christian v. Ashley County 24 Ark., 142 and cases cited.

TYsCo^uTNr tí0nUosfe’f collector "óí school taxes Sec. 41 of the act of December 7, 1875, is a re-enactment of Sec. 5422 Gantt’s Digest, which requires all taxes for school purposes voted by any school district to be L r levied by the County Court and to be collected by the same officer, at the same time and in the same manner, as county taxes, and to be paid into the county treasury. .'The County Court was, therefore, the appropriate forum lor adjusting the liabilities of the collector and his sureties for these taxes, and for coercing payment.

But it is insisted that the act of February 27, 1879, deprives counties of their corporate powers, and hence Washington County had not legal capacity to sue. And it is suggested that Sec. 53 of the Act of Dec. 7, 1875, erects each school district into a body corporate.

objec11 o n s to The school districts are the ultimate beneficiaries' of the taxes levied for the support of schools. But the law contemplates that the proceeds of such levies shall into the county treasury, there to be disbursed on the warrant of the school directors. To hold that the funds may be intercepted on their way to the county treasury, would disturb the harmony of the system, and introduce confusion. The judgment should have been in favor the State, the obligee in the collector’s bond, or of the county treasurer, the real party in interest. Hunnicutt v. Kirkpatrick, 39 Ark., 172. It was in fact rendered in the name of the county upon motion of the treasurer. This was matter of form rather than of substance. And since the objection to the plaintiff’s capacity to sue for this demand was not taken either by demurrer or answer, it must be deemed to have been waived. Gantt’s Dig. Sec. 4567.

cuuuu oi: Another objection to the judgment was, that the County Judge was the father of one of the defendants, and so disqualified to try the cause. This also was waived by failure to call the atention of the County Court to the fact of disqualification. The defendants were numerous and it cannot be presumed that the presiding judge was aware that his son was a party to the action. Shropshire v. State, 12 Ark., 190; Sweepster v. Gaines 19 Id., 96.

ticl Prac' agíi“nst”n?y fenfca°a /ts severally™^ The Circuit Court quashed the judgment against the son of the County Judge and affirmed it as to the other defendants. This is not an error of which the appellants can take advantage. They were severally as well as jointly liable. Ihe plaintiff copld, even after service, have stricken out the name of the judge’s son, and have proceeded against them alone. Freeman on Judgments, See. 136; Kitchens v. Hutchins, 44 Geo., 620. And they may recover of him his due proportion of whatever sum they may be compelled to pay.

Affirmed.