Saline County v. Kinkead
| Decision Date | 11 November 1907 |
| Citation | 105 S.W. 581,84 Ark. 329 |
| Parties | SALINE COUNTY v. KINKEAD |
| Court | Arkansas Supreme Court |
Appeal from Saline Circuit Court; W. H. Evans, Judge; affirmed.
Judgment affirmed.
W. L Cooper and W. R. Donham, for appellant.
Claims not verified until after motion to dismiss appeal was overruled. No affidavit and prayer for appeal as provided by § 1487, Kirby's Digest. No bond given, Ib. § 1488. The circuit court acquired no jurisdiction. It was coram non judice.
The fee bill was claimed under § 3818, Kirby's Digest, which requires it to be sworn to.
J. W Westbrooke, for appellees.
No motion to strike was made, and too late to complain now. The affidavit is not jurisdictional. The case is tried de novo in circuit court, and an affidavit may be attached conveying the want of it below. The presumption is the claim was based on a meritorious prosecution.
On the 11th day of April, 1906, the itemized fee bill of J. C. Kinkead and G. R. Kelley for fees due them, respectively, as justice of the peace and as sheriff in an examining trial in the case of State of Arkansas v. Joshua C. Holloman was filed in the Saline County Court.
On May 26, 1906, the claim was presented to the county court, and it was allowed in part and disallowed in part. Claimants appealed to the circuit court. The county judge, on behalf of Saline County, filed a motion to dismiss because the claim was not sworn to as required by statute.
The affidavits to the claim bear the date of March 12, 1907, and the case was tried in the circuit court at its March term, 1907. The circuit court allowed the claims in full, and Saline County has appealed. Section 1453 of Kirby's Digest, the general act in regard to the presentation of claims to the county court, is not applicable to this case, for the reason that there is a special statute directing the manner in which fees accruing in examining trials shall be presented. Where there is special act made to apply in particular cases, it only applies, and not the general act, Mills v. Sanderson, 68 Ark. 130, 56 S.W. 779.
Section 3517 of Kirby's Digest, the special act under which this claim was presented, provides, among other things, that "the justice or other officer or person to whom any fees may be due shall make out a fee bill for its cost allowed by law, which may have accrued in said case, and shall present to the county court an itemized account, duly sworn to, which shall be examined as provided in the following section, and, if found correct, audited and allowed by the county court."
No objection was made to the fee bill by the county court because it was not properly itemized nor because it was not verified. The record shows that it was allowed in part and disallowed in part.
Whether or not there was actually an affidavit verifying the fee bill filed with it in the county court does not certainly appear but it seems to have been taken for granted in ...
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