101 Ark. 358 | Ark. | 1912
(after stating the facts.) It is undisputed that the defendant was the collector of Marion County, and collected the revenues for 1902, and made settlement thereof with the county clerk in 1903, which settlement was duly approved and confirmed by the county court in July, 1903; that in said settlement he charged and was allowed and credited with five per cent, commission upon the revenues collected, and was entitled under the law to but three and a half per cent., the difference between which and the five per cent, being the amount sued for herein.
The county court had jurisdiction to examine the settlement made by the clerk with the collector and approve or reject the same, and .its judgment approving and confirming the gettlement conclusive of its correctness. Jones v. State, 14 Ark. 170; Hunnicutt v. Kirkpatrick, 39 Ark. 172; State v. Wood, 51 Ark. 205; Ireland v. State, 99 Ark. 23; Crawford v. Carson, 35 Ark. 581.
The county court also had the power to correct any error discovered in such settlement, and to reconsider and adjust the same within two years from the date thereof (section 7174, Kirby’s Digest), and the chancery court, after the expiration of said time allowed the county court by law for the correction of errors in such settlements, has jurisdiction to grant relief upon allegation and proof of fraud. State v. Turner, 49 Ark. 311.
The collector, and his deputy, who had had experience in making such settlements, and the judge of the county court, all knew that the collector was charging five per cent, commission, and being allowed credit therefor at the time the settlement was made and confirmed, and the settlement itself showed that fact, and there was no evidence whatever of any fraud or concealment practiced upon the court to procure the confirmation of the settlement.
The testimony further disclosed that the collectors in that county had theretofore charged and been credited with a commission of five per cent, for the collection of the taxes, and that the officials understood that that was the rate allowed by law.
It is true that the statement from the Auditor’s office in 1911 showed that, after the settlement was approved and confirmed, and when the collector was paying the revenues into the State treasury, they discovered that upon the whole amount collected three and one half per cent, was the amount allowed by law, and required him to pay into the treasury the difference between that and the five per cent, credited by the county court upon the State’s revenues. This fact was notice to him that he had charged and been allowed by the judgment of the county court one and one-half per cent, more commission on the State revenues than the law entitled him to, and probably that he had charged and been allowed for the collection of the county revenues the same amount more than the law warranted, but, all this occurred after the settlement was made, approved and confirmed, and could not have had effect to charge him with notice at the making of the settlement that he was demanding fees not allowed by law, nor have conduced to. prove any fraud practiced by him in procuring confirmation of said settlement. Fraud is never presumed, but must be proved, and there was no proof of any fraud or concealment practiced on the county court in securing the confirmation of the collector’s settlement; and, even if the charge and allowance of five-per cent, commission, instead of three and one-half, the right percentage, can be considered evidence of fraud, certainly it can not be said the chancellor’s finding in this case is clearly against the weight of the evidence, and his judgment dismissing the bill for want of equity is affirmed.