Lusk v. Perkins

• Decision Date: 22 January 1887
• Citation: 2 S.W. 847,48 Ark. 238
• Parties: LUSK v. PERKINS & GEORGE
• Court: Arkansas Supreme Court

2 S.W. 847

48 Ark. 238

LUSK v. PERKINS & GEORGE

Supreme Court of Arkansas

January 22, 1887

APPEAL from Sevier Circuit Court Hon. H. B. STUART, Judge.

Judgment reversed and remanded.

Jones & Martin, for appellant.

1. All fines are payable in county scrip. Mansf. Dig., sec. 5860; 43 Ark. 270. The constable should have received it, if valid and mandamus was the proper remedy. 28 Ark. 317; 33 ib., 450.

2. The scrip upon its face shows that it was regularly issued for the legitimate expenses of the county, and until the prima facie case thus made is rebutted by evidence, it must be treated as a valid warrant. 38 Ark. 277.

3. The order calling in the warrants shows that it was to be published in but one newspaper. This was not a compliance with the statute, and could not affect the scripholder. Mansf. Dig., sec. 1148; 33 Ark. 740; 10 F. 891.

4. The court erred in not permitting appellant to prove that there was no such evidence of the publication of the order as is required by the statute. 10 F. 891.

Compton & Compton, for appellees.

Parol testimony was clearly inadmissible to contradict the order and judgment of the board of supervisors, which recited that "due and legal notice of said order having been given as required by law." 11 Ark. 368; 14 ib., 9; 4 ib., 184.

This court will presume, in the absence of evidence to the contrary, that there was proof before the board of the publication in more than one newspaper. See 39 Ark. 337; 17 ib., 530; 42 ib., 310.

OPINION

GATEWOOD, Special Judge.

Appellant Lusk was fined by appellee Perkins, a justice of the peace, of Sevier county, and in payment of said fine tendered to appellee, George, as constable, a county warrant issued in 1862, by order of the Sevier county court, for ordinary county expenditures; which warrant the appellee, George, as constable, refused to receive.

The warrant had been presented to the county treasurer of Sevier county, and indorsed "not paid for want of funds."

This suit was in the Sevier circuit court, for the purpose obtaining a mandamus to compel George, as constable, to receive said warrant in payment of said fine, and for a restraining order against the justice of the peace, Perkins, to restrain him from issuing an execution against appellant for said fine. The appellees answered, admitting the allegations of the complaint, except as to that part which alleges the warrant was issued "for the legtimate expenses and liabilities of said county, and not in aid of the rebellion or other unlawful purpose;" as to which they say, "they have no knowledge or information sufficient to form a belief;" and they deny that said warrant was issued for legitimate county purposes.

They set up as a further defense, that the board of supervirsors of Sevier county, on the 9th day of July, 1873, made an order calling in for the purpose of examination, cancellaton and reissuance, all outstanding warrants of the county; that the notice required by law, and the order of said court were duly given, and that the warrant tendered to the constable was never presented to the board of supervisors, in accordance with said order, and was therefore void.

A general demurrer was filed with the answer, which does not appear to have been acted upon by the court.

A reply was filed by appellant, admitting the making of the order by the board of supervisors, denying that the order fixed the time for presentation of the warrants three months from its date, and denying that the notice of said order was given as required by law.

Upon motion of appellees, the court struck out the reply of appellant, to which he excepted. A trial was had and appellant offered to prove by the clerk and sheriff both of whom were clerk and sheriff in 1873, when the order calling in the warrants was made, that the order of the board of supervisors was published in only one newspaper in the state: by the sheriff that he published the notice in only one newspaper in the state, and the same fact by the clerk, and by him also, that there was no record in his office that any notice at all of the order of the board had ever been published. An objection to this testimony was interposed by appellees, and sustained by the court; to which ruling of the court appellant excepted.

Appellant asked eight declarations of law, the first seven of which being condensed, asked the court to declare that section 1148 of Mansfield's Digest required that the order of the board of supervisors of Sevier county, should be published in newspapers of the state, and before the order could be effectual to bar the warrant presented, the notice required by the statute must have been published in more than one newspaper in the state. Eighth--that the warrant in evidence, is proof of its own issue and of the purpose for which it was issued, unless contradicted by proof; the court refused to give, in any form, either of these instructions, and appellant excepted.

Appellees asked two declarations of law: First--that the allegation in plaintiff's complaint, that the warrant tendered to defendant, George, as constable, in payment of his fine, was issued by order of the county court of Sevier county, to pay the legal expenses and legitimate liabilities of the county, and not in aid of the rebellion or other unlawful purposes, was a material allegation in said complaint, and being controverted by the defendant, the court must find for the defendant, unless said allegation has been proven.

The second instruction asked for, is quite lengthy, but in substance is as follows: "That the judgment or order of a court of record being rendered by public authority, is presumed to be faithfully recorded, and is the only proper legal evidence of itself, and is conclusive of the fact of the rendition of the judgment, and all legal consequences resulting therefrom; and if it appears from the record of the judgment of Sevier county court, read in evidence in this cause, that due and legal notice had been given of the order of the county court, calling in the warrants of the county, said record is conclusive evidence of that fact, and parol evidence is not admissible to contradict the record, and the court will find for defendants."

The court gave both declarations of law asked for by defendants; to the giving of which appellant excepted. Judgement was rendered for appellees. Motion for new trial was filed, which was overruled; bill of exceptions setting out evidence, exceptions, etc., were taken, and an appeal prayed and granted.

Appellant complains of error by the court: First--in striking out his reply to appellees' answer.

Second--in refusing to permit him to prove by the sheriff and the clerk of the county, that the order of the board of supervisors was published in only one newspaper in the state; and that there was no record evidence that any notice at all of the order had ever been published.

Third--in refusing to declare the law, as asked by him, and declaring it as asked for by appellees.

1. PLEADING AND PRACTICE: Reply.

The court did not err in striking out the reply of appellants. "There can be no reply except upon the allegation of a counter claim or set-off." Mansfield's Digest, sec. 5043; Newman on Pleading and Practice, page 627.

A reply improperly filed should be stricken out. Cannon v. Davies, 33 Ark. 56; Abbott v. Rowan, 33 Ark. 593.

2. SERVICE OF Recital of, in judgment.

Did the court err in refusing to permit appellant to introduce proof showing that the order of the board of supervisors of Sevier county had been published in but one newspaper in the state, and that there was no record evidence that said notice had ever been published? Section 1147, of Mansfield's Digest, empowers the county court to call in the outstanding warrants of the county, for the purpose of redeeming, cancelling or classifying them, or for any lawful purpose.

Section 1148, of same, provides for giving notice to the holders of county warrants when to present the same for redemption cancellation, reissuance or classification; the sheriff of the county to give the notice "by putting up at the court house door, and at the election precincts in each township of said county, at least thirty days before the time appointed by the order of said court for presentation of said warrants, a true copy of the order of said court in the premises, and publishing the same in newspapers printed and published in the state of Arkansas, for two weeks in succession, the last insertion to be at least...