47 S.W.2d 590 | Ark. | 1932
This appeal is prosecuted from a judgment denying appellant the right to recover $300 of school funds alleged to have been wrongfully retained by appellee as an attorney's fee for the collection of moneys for the school district.
It appears from the testimony that W. A. and Ida Tomlinson made their will in the State of Texas, county of Jeff Davis, providing that $3,000 out of their estate be paid to the public school fund of Calhoun County.
Sikes was appointed executor of the will, and the $3,000 was collected out of the estate, but he failed to pay same to the school fund, paying it to C. L. Poole instead, who was alleged to be without authority to accept it for the school fund, and Poole acting for Sikes, executor, did pay the school fund of said county the sum of $2,700, wrongfully retaining $300 as a fee for the collection of it, and it was alleged that both he and the executor were liable to the county school board therefor.
Poole answered denying any indebtedness, and alleged that he had the right to and did retain the $300 out of the money collected as a fee for professional services rendered.
The testimony shows the services necessary to be performed, which were done by Poole and an assistant employed by him in having the will, which appeared to have been lost for a time, probated in Denton County, Texas, where Ida Tomlinson died, a copy of the lost will being procured from Pilo Pinto County where it had first been probated. The necessity for procuring affidavits *372 from the subscribing witnesses from Jeff Davis County, etc., was shown. The money was finally collected after three trips made to Texas by appellee and paid over to the public school fund, except $300 retained by Poole as his fee in accordance with what he claimed to be his contract of employment.
He testified that he had talked with the board at regular meetings two or three times about the employment and the necessity for it, and that finally the president of the board with another man came over to his office and told him to proceed with the collection; that he accordingly collected the money after three trips down into Texas at an expense of about $75 each and retained his fee agreed upon, as he had the right to do.
Several members of the board testified that Mr. Poole had come before the board and stated the necessity for having some one employed to collect the money from the estate, but that the board had never employed him; that Sikes, the executor, was Poole's brother-in-law, his wife being a daughter of the testator, as was also Poole's wife, and that the board thought it could collect the money without the employment of counsel.
Sometime after Poole had begun to proceed about the collection and before it was actually made, the board passed a resolution to rescind any previous action towards employing an attorney to collect the money willed to the school fund of the county by Mr. Will Tomlinson and leave it in the hands of Mr. Sikes of Monticello.
The jury under instructions not complained of returned a verdict in favor of appellee Poole, from which this appeal comes.
It is insisted for reversal that the school board was without authority to employ a lawyer to collect the money given to it under the terms of the will, that the testimony is insufficient to support the verdict, and that the court erred in not granting a new trial on account of newly discovered evidence. *373
The county board of education is granted certain powers by the statute, 8873, et seq., Crawford Moses' Digest, in effect substituting the county boards of education for the county court in the supervision of school affairs, the duties of the board being set forth in 8876 of the Digest. The right of the county board to bring suit for the protection of the common school fund and for the purpose of requiring the county treasurer to transfer moneys to the common school fund appears to be recognized in County Board of Education v. Austin,
Neither was error committed in refusing to grant the motion for a new trial on account of newly discovered evidence. No diligence was shown to procure the testimony of the witness, which was claimed would furnish the newly discovered evidence, no subpoena having been issued for him, and, although he was a party to the suit, appellant could not have a new trial because of the disappointment of its expectations that said witness would necessarily be at the trial and could be introduced by it as a witness for appellant. The testimony claimed to be newly discovered was largely cumulative too, about the payment of the expenses of the attorney for his trips to Texas, one witness having testified he had seen the account and the statement of it and its payment by the executor, etc.
We do not find any prejudicial error in the record, and the judgment is affirmed.