Grimmett v. Askew

• Decision Date: 08 January 1887
• Citation: 2 S.W. 707,48 Ark. 151
• Parties: GRIMMETT v. ASKEW
• Court: Arkansas Supreme Court

2 S.W. 707

48 Ark. 151

GRIMMETT v. ASKEW

Supreme Court of Arkansas

January 8, 1887

APPEAL from Columbia Circuit Court, Hon. O. D. SCOTT, Special Judge.

Decree affirmed.

Jones & Martin for appellant.

The act authorizing county courts to call in scrip for the purposes contemplated by the order of March 8, 1873, is constitutional. 25 Ark. 261; 37 ib., 649; 33 ib., 788.

Askew waived any want of compliance with the requirements of the statute in the matter of notice, etc., by presenting his scrip. 33. Ark. 744. If the appellee was not satisfied with the order rejecting his scrip, he should have appealed. 39 Ark. 485.

The board of supervisors were the legitimate successor of the county court, With same jurisdiction, etc. Acts 1873, sec 15, p. 58.

Smoote McRae & Hinton, for appellee.

The order rejecting the scrip was not made at any court held by the board of supervivors. They were no court at all. They were only authorized "to continue six days." Gantt's Dig., sec. 589. There is no provision for holding an adjourned term, but the president might call a special session in the mode provided for. Ib., sec. 590.

The order rejecting the scrip was not made by a legally constituted court, it was coram non judice and void. 2 Ark 229; 20 Ark. 77; 27 Ib., 349.

Courts cannot be held except at a time prescribed by law.

Hon BEN T. DUVAL, Special Judge. Hon. B. B. BATTLE did not sit in this case.

OPINION

Hon. BEN T. DUVAL, Special Judge.

The plaintiff, Askew, in March, 1882, brought this action for mandamus to compel the collector of Columbia county to receive certain scrip issued in 1864, in payment of taxes for 1881.

The court below sustained a demurrer to the answer and rendered judgment in favor of the plaintiff, and defendant appealed to this court.

The appellant relies upon but one ground for reversal, that is: Whether the facts stated in the second-paragraph of the defendant's answer constitute a defense? They are that at a regular term of the Columbia circuit court, held on the 8th day of March, 1873, all the outstanding indebtedness of said county was called in for re-issuance. That at the adjourned June term of said court, the plaintiff presented the identical scrip described in his complaint to the court, and it was declared to be void.

Copies of the several orders of the court are annexed to and made a part of the answer.

An agreed statement of facts was reduced to writing and signed by the parties, which was filed and prayed to be taken, not only as evidence, but as amendments to the complaint and answer. The plaintiff then demurred in short upon the record by consent to each and every paragraph and defense in the answer.

The court sustained the demurrer, and the defendant declined to amend. The court proceeded to render judgment in favor of the plaintiff in conformity with the prayer of the complaint.

We would remark, en passant, that the amendment of pleadings by agreed statement of facts appears to be novel. No question, however, on that point is raised before us, and we do not feel called upon to pass upon it. The exhibits referred to in the answer and annexed to it, show that the original order calling in the scrip was made by the county court, and that the board of supervisors was afterwards created by the act of the general assembly of the state of Arkansas to supersede said county court.

That, in pursuance of said act, the supervisors of Columbia county met on the first Monday in May, 1873, elected one of their number president, and on the same day adjourned over until the 9th day of June.

That, on the 11th day of June, the plaintiff presented for re-issue, the scrip in question, and the same was rejected because it had been issued by a pretended county court, acting under the authority of the Confederate States government. There is no question, if this order was made by a legally constituted court, the scrip was barred, and the refusal of the sheriff and collector to receive it from the plaintiff, in payment of his taxes, was correct.

By section 3, act of April, 1873, it is enacted that "the board of supervisors shall assemble at the court house in their respective counties on the first Monday in May, 1873, and being so assembled, shall severally take and subscribe to the oath of office ordered by the constitution of the state."

Section 8 declares that: The regular session of the board of supervisors shall commence on the first Monday in January, April, July and October, in each year, and shall continue six days, if business shall so long require, and no longer, provided "the president of the board may call a special session thereof, whenever in his judgment it may be necessary, upon his giving five days' notice of said session by advertisements posted at the door of the court house of his county, and causing a copy thereof to be delivered to, or left at the residence of, each member of said board."

These are all the provisions in the act in regard to the meetings of the board--they are denominated regular and special meetings.

Could the board of supervisors adjourn the meetings to another day beyond the six alloted them?

In Dunn v. State, 2 Ark. 229, this court upon the authority of Mechanics' Bank v. Withers, 19 U.S. 106, 6 Wheat. 106, 5 L.Ed. 217, held that "all courts, unless restrained by some statutory provision, have the right of adjourning their sittings to a distant day, and the proceedings at the adjourned session will be considered as the proceedings of the term so adjourned."

In that case the only question before the court was, whether the adjournment was a continuation of the term, or constituted a distinct term.

Chief Justice Marshall, delivering the opinion of the court, said: "There being nothing in any act of congress which presents the courts of the District of Columbia from exercising a power common to all courts, that of adjourning to a distant day," held that the proceedings of the adjourned term were a continuation of the proceedings of the regular term.

The limitation of the regular session of the board of supervisors to six days and no longer-- with the power vested in the president to call special sessions, whenever in his judgment it might be necessary, was in our opinion intended to be a restraint upon the inherent power of courts to adjourn their sittings to a distant day, and continue the proceedings of the term...