Dixie Culvert Manufacturing Co. v. Perry County

• Decision Date: 26 November 1928
• Docket Number: 5
• Citation: 12 S.W.2d 10,178 Ark. 454
• Parties: DIXIE CULVERT MANUFACTURING COMPANY v. PERRY COUNTY
• Court: Arkansas Supreme Court

12 S.W.2d 10

DIXIE CULVERT MANUFACTURING COMPANY v. PERRY COUNTY

178 Ark. 454

No. 5

Supreme Court of Arkansas

November 26, 1928

Appeal from Perry Circuit Court; Richard M. Mann, Judge; affirmed.

Judgment affirmed.

Horace Chamberlin, for appellant.

Boyd Cypert, for appellee.

OPINION

SMITH, J.

Appellant filed a petition in the county court of Perry County, which it says is in the nature of a suit in replevin. It was alleged therein that petitioner sold the county certain culverts of the aggregate value of $ 2,424.76, in the year 1926; that petitioner endeavored to collect the purchase price of the culverts from the county, but that it was shown in the trial thereof that the agreement for payment was in violation of Amendment No. 11 to the Constitution. That judgment of the county court was affirmed on the appeal to this court (174 Ark. 107, 294 S.W. 381), where it was held that the amendment designated as No. 11 prohibited a county from incurring any obligation in any year exceeding the revenues of that year, it being there said that such contracts were void, and could not be paid out of the revenues of a succeeding year.

The petition further alleged that the county still has the culverts in its custody and control, and that, by virtue of the above-mentioned decision of the Supreme Court, the title and right to possession remained in petitioner, and demand for the surrender thereof had been made and refused. The petitioner alleged that by reason of the detention of the culverts it had been damaged to the extent of $ 1,750 in addition to the value of the culverts, which had been sold and delivered to the county within three years prior to the institution of this suit, and the culverts had not been taken from petitioner for any tax or fine or under any judgment or order of any court, nor had they been seized under any execution or attachment against its property. Petitioner prayed judgment against the county in the sum of $ 1,750, and that, if it be shown that the county cannot deliver the culverts, it have judgment against the county for the value thereof.

Attached to the complaint as an exhibit thereto was an order of the county court--the date of which is not given--reciting the terms of the contract of purchase of the culverts by the county and the fact that the culverts had been delivered to the county in accordance with said contract and had been placed in the roads of the county, in consideration of which facts the contract of sale was ratified by the county court.

The county court denied the prayer of the petition, and an appeal was duly prosecuted to the circuit court, where a demurrer was filed, which alleged that the circuit court had no jurisdiction of...