Pride v. State

• Decision Date: 15 February 1890
• Citation: 13 S.W. 135,52 Ark. 502
• Parties: PRIDE v. STATE
• Court: Arkansas Supreme Court

13 S.W. 135

52 Ark. 502

PRIDE v. STATE

Supreme Court of Arkansas

February 15, 1890

APPEAL from Sevier Circuit Court in Chancery, R. D. HEARN, Judge.

This is a suit in equity, brought by the State for the use of Sevier County, against Henry C. Pride. It appears from the allegations of the bill that Pride was Collector of revenue for Sevier County, in 1864; that he collected the revenue of that year and failed to pay it over to the Treasurer, or to make any settlement with the County Court, but fraudulently converted the same to his own use; that the County Court, at the July term, 1861, made an order appointing commissioners in each township to relieve the families of volunteers in the Confederate and State armies, and that taxes were assessed and collected for that purpose; that in October, 1861, an order was made that all allowances made for the relief of such families, should be drawn by the Clerk of the Court on the Treasurer; that at the same term of the court, on November 1, 1861, it was ordered that all the appropriations before that time made, and for which taxes had been assessed including allowances for the support of the families of volunteers in the army, be collected and paid into the county treasury as ordinary county revenue, and that the several appropriations and allowances should be consolidated; that it was further ordered that all orders made at that term of the court directing the Clerk to draw his warrants on the Treasurer out of any particular fund, be set aside, and that he draw all his warrants on the Treasurer for all allowances made by the court, in the ordinary manner of drawing county warrants; that these orders were in full force in 1864 and 1865, including the assessment and collection of taxes to pay the orders of the court, in allowing claims against the county; that at the April term, 1864, of the court, it was ascertained that to pay the current expenses of the county for that year a tax of $ 8000 should be levied, to pay for the support and relief of the families of soldiers in the army, a tax of $ 82,000 should also be levied, and for these purposes 3 per cent. on all the taxable property in the county was assessed, extended upon the tax-books and collected as a whole that is to say, that the taxes for both purposes were consolidated and made one, all allowances for the relief of the families of soldiers in the army, and all allowances for ordinary expenses, being made and entered of record on the same day, and frequently in the same order that the Clerk drew all warrants for the payment of such allowances on the Treasurer, to be paid out of the taxes consolidated and collected as stated, and that all the orders of the court allowing claims against the county for the ordinary expenses were so mixed with the allowances made for and in aid of the war, and the warrants were so drawn that they are all alike illegal and void, though the warrants have on their face a money value; that in the latter part of 1863 and all of 1864, all the able-bodied men of Sevier County between 18 and 50 years of age were in the regular service in the army, and their families were almost wholly dependent upon the relief given them under the orders of the County Court; that large amounts of county warrants were issued at every term of the court during the period of the war, for such purpose, by means of which large amounts of warrants were in the hands of the tax-payers of the county at the time of the collection of the taxes of 1864, and were collected and received by the Collector of the county, and by him retained and converted to his own use, and he is now attempting to collect the face value of such warrants from the county as the bona fide owner thereof; that the bond of Pride as Collector is lost, and that he is wholly insolvent that on April 6, 1887, the County Court of Sevier County made an order calling in her outstanding warrants for examination, cancellation and reissuance; that in obedience to this order Pride, on July 25, 1887, appeared in court, and presented for examination and reissuance 501 warrants, amounting in the aggregate to $ 65,071.33, which, on examination, were rejected, and Pride appealed to the Circuit Court, where the matter is now pending and undetermined; that in April, 1887, the County Court made an order reciting that Pride had collected the taxes of the county for the year 1864, and requiring him to make a settlement thereof; that Pride appeared at the January term next following and filed an answer, to which a demurrer was sustained, and refusing to plead further, judgment was rendered against him for $ 118,237.39 county taxes, and $ 450 ferry license, from which he appealed to the Circuit Court, where the appeal is now pending and undetermined; that the warrants presented by Pride for examination and reissuance are regular on their face, and can only be defeated by extrinsic evidence that the county is not legally bound to pay them. The prayer of the bill is for general and special relief, and is substantially as follows: The plaintiff asks the court, by proper orders, judgments and decrees, to grant to her such relief in the premises as to equity and good conscience may pertain, and that she may have all the benefit and advantage of all equitable set-off and limitation on the hearing of the cause; that the defendant on the final hearing be perpetually restrained from the collection of the warrants presented by him for reissuance; that in the event such warrants should be found to be a part of the revenues collected by the defendant in 1864, that they be canceled, and that if the defendant shall recover any part of the warrants, that the plaintiff have her equitable set-off as may be proven; and that if, upon the hearing, it should appear that by the orders of the County Court, mixing and collecting the revenues in aid of the war with other revenues, the whole system of revenue during the war was void, that the plaintiff may recover all her costs, and such other relief as to equity may pertain, the plaintiff in no case asking to recover of the defendant the revenues of the year 1864, more than a sufficient amount to set-off and defeat the claim of defendant. The defendant demurred to the complaint on the ground (1), that it states no cause of action, and (2), that the court had no jurisdiction of the matters which it sets forth. The demurrer was overruled and the defendant refusing to plead further, the court rendered a final decree on the merits, finding that the defendant had collected warrants of the county in payment of the taxes of 1864, amounting in the aggregate to $ 118,237.39, which he never accounted for to the county, but converted to his own use; that the 501 warrants, presented by the defendant to be reissued, aggregating the sum of $ 65,173.33, were, each and all of them, part and parcel of the warrants collected by him and converted as aforesaid; and decreed their cancellation, and enjoined him from ever prosecuting any action thereon. He appealed.

Judgment affirmed.

G. W. Williams, for appellant.

1. Equity follows the law in the application of the statute of limitations. Wood on Lim., sec. 58 et seq.; 16 Ark. 129; 19 id., 16; 46 id., 25; 47 id., 301. Laches and neglect are always discountenanced in equity. 95 U.S. 157; 1 Dan. Ch. Pl. & Pr., p. 561. The appellee was barred. Mansf. Dig., secs. 4481-5832-3 5839, 5844, 5847. Twenty-three years had elapsed since appellant's alleged liability had accrued.

2. There was no ground for equity jurisdiction on account of set-off. The County Court had the authority under Mansf. Dig., secs. 1147-8, 1153, to call in and cancel the warrants, and this would have disposed of the whole matter. The remedy at law was adequate. 15 Wall., 373-13 id., 618.

3. The plea of set-off was inconsistent with the allegations of the bill.

Appellee had elected to proceed at law, and had two judgments in her favor, and cannot now call in the aid of equity to assist her in disposing of them, thus ousting the jurisdiction of the law courts. 6 Ark. 368; 1 id., 186; 6 id., 85; 5 id., 501; 14 id., 32; 22 id., 277; 26 id., 63; 43 id., 107; 35 id., 109; 14 id., 360; 9 Wheat., 532.

She does not allege that she was deprived of any defense by surprise, accident, mistake or fraud, etc., or that she was ignorant of important facts material to her defense on the trial at law, etc. Chancery has no power to correct judgments of the Probate Court. 14 Ark. 71; 39 id., 172; 46 id., 260; 37 id., 650; 39 id., 485. A defendant must make all his defenses legal and equitable at law; if he does not, equity cannot be invoked. 46 Ark. 272; Man...