Woodruff County v. Road Improvement District No. 14

• Decision Date: 11 June 1923
• Docket Number: 36
• Citation: Woodruff County v. Road Improvement District No. 14, 252 S.W. 930, 159 Ark. 374 (Ark. 1923)
• Parties: WOODRUFF COUNTY v. ROAD IMPROVEMENT DISTRICT NO. 14
• Court: Arkansas Supreme Court

252 S.W. 930

159 Ark. 374

WOODRUFF COUNTY v. ROAD IMPROVEMENT DISTRICT NO. 14

No. 36

Supreme Court of Arkansas

June 11, 1923

Appeal from Woodruff Circuit Court, Northern District; J. M Jackson, Judge; affirmed.

STATEMENT OF FACTS.

The county court of Woodruff County in 1921 made an order calling in the outstanding warrants of the county for cancellation and reissuance, and this appeal involves the correctness of a judgment of the county court canceling certain warrants, and refusing to reissue the same.

It appears from the record that a special act to create Road Improvement DistrictNo. 14 of Woodruff County, Ark., was approved on February 7, 1920.Three commissioners were named in the act to construct the improved road.

In constructing the improved road it was necessary to build bridges across two streams.There were already wooden bridges over these streams, but they had become worn out, and it was necessary to replace them.In April, 1920, the board of commissioners of the road improvement district made an agreement with the county judge of Woodruff County for the county to pay $ 2,500 each toward the replacement and construction of new bridges across these streams.

Pursuant to the agreement, the board let a contract at public auction in the manner prescribed by the statute for the construction of bridges.The Illinois Steel Bridge Company was the lowest bidder, and the contract was awarded to it for the construction of both bridges.

The cost of constructing the bridge across Roaring Slough was $ 8,398.87.After this bridge had been constructed the board of commissioners of the road improvement district paid the Illinois Steel Bridge Company the full amount due it for the construction of the bridge.The payment was made out of the funds of the road improvement district.The board of commissioners of the road improvement district then presented a claim to the county court, in the name of the Illinois Steel Bridge Company, for the sum of $ 2,500 to be applied toward the payment of the construction of the Roaring Slough bridge.Just before the county judge who had made the agreement with the board of commissioners of the road improvement district went out of office, an order was made allowing the claim of the Illinois Steel Bridge Company in the sum of $ 2,500 for steel used in the construction of a bridge across Roaring Slough, and warrants were ordered issued in the sum of $ 100 each for that sum.This order was duly entered of record on the 30th day of December, 1920.The record recites that this was an adjourned day of the county court which was duly held at the courthouse in said county.

The warrants were duly issued, and the board of commissioners procured an assignment of the claim from the Illinois Steel Bridge Company to the secretary of the board of commissioners of Road Improvement DistrictNo. 14 of Woodruff County.On the 1st of January, 1921, a new county judge was inducted into office in Woodruff County, and he refused to allow the county clerk to deliver these warrants.

At the April term, 1921, of said county court, an order was made calling in the outstanding county warrants under § 1994 of Crawford & Moses' Digest, for the purpose of cancellation and reissuance.On August 1, 1921, the county court of said county made an order canceling the warrants in question and refusing to reissue the same.

Subsequently the board of commissioners of the road improvement district procured a written order of assignment of these warrants to it from the Illinois Steel Bridge Company.On the 7th day of January, 1922, the chairman of the board of commissioners of said improvement district made an affidavit of appeal from the order of said county court canceling said warrants and refusing to reissue the same.The appeal was duly granted by the circuit clerk.A motion was made to dismiss the appeal on the ground that the affidavit had been filed by the chairman of the board of commissioners of the road improvement district, and not by the Illinois Steel Bridge Company or its agent.The motion was denied by the court.The case was heard in the circuit court on the facts stated above, and upon other facts which do not have any bearing upon the issues raised by the appeal, and which for that reason we need not state.

The circuit court was of the opinion that said warrants were originally properly issued by the county court in favor of the Illinois Steel Bridge Company, and thereafter duly assigned, for a valuable consideration, to Road Improvement DistrictNo. 14 of Woodruff County, Ark.; that, at the time said warrants were canceled by the county court, they were the property of Road Improvement DistrictNo. 14, and that the county court erred in the cancellation of said warrants that said road improvement district has the right to a reissue of them and to have them delivered to the commissioners of said district.

Judgment was rendered accordingly, and to reverse that judgment Woodruff County has duly prosecuted an appeal to this court.

Judgment affirmed.

R M. Hutchins, for appellant.

This is not one of the "good faith" county warrant cases such as discussed in 72 Ark. 330.On December 30, 1920, the county court allowed claim of Illinois Steel Bridge Company for $ 2,500, and warrants were issued therefor.Warrants were called in for reissue August 1, 1921, and these warrants, being in the clerk's office, were canceled and not reissued.Appellee road district, claiming to be the owner of said warrants by assignment but not being a party to the record, the judgment of cancellation had no right to appeal from the order of the county court canceling the warrants herein.Sec. 33, art. 7, Constitution;Kirby's Digest, § 1487;52 Ark. 99;71 Ark. 48;53 Ark. 287.It was so held prior to adoption of present Constitution.26 Ark. 461;30 Ark. 578;28 Ark. 479;47 Ark. 411.The road district is not the party aggrieved.99 Ark. 59;3 N.Y.S. 664, 56 N.Y. Supr.Ct. 606. 64 N.C. 110;49 P. 5.Appellee road district alleges it became the owner of the warrants for a valuable consideration by an assignment in writing executed by the Illinois Steel Bridge Company, but did not prove such assignment, its validity being challenged by affidavit under § 479, C. & M. Digest.County warrants are negotiable and transferable by delivery (7 Ark. 214), but these warrants have never been out of the possession of appellant, never been in possession of appellee, its alleged assignor.The allegation of assignment should have included delivery of the warrants in order to entitle appellee to maintain an action in its name.1 Eng. 200;2 Eng. 491, 376.County warrants non-negotiable within meaning of the law merchant, and buyer stands in shoes of seller.28 L. R. A. 645.The letter did not operate as an assignment so as to enable appellee named therein to sue.148 Ark. 283.There was a defect of parties, and appellant's motion to dismiss appeal should have been granted.The warrants were not issued on the order of the county court.The court erred in not allowing appellant to show the term had lapsed before order adjourning to date of issuance of warrants was made or entered.141 Ark. 437;145 Ark. 259;86 Ark. 591.A judgment entered in vacation as was this order was not the order of a court.138 Ark. 226.An adjourned session could only be held by order of court made in term time and entered of record.Kirby Digest, 1531.The record of usurpation should have been expunged.96 Ark. 427.Warrants were not issued on verified claim, and were issued without an appropriation made.§ 2029 C. & M. Digest and § 1976;118 Ark. 530.The warrants were regularly called in and canceled, and appellee's claim is barred.C. & M. Digest, §§ 1994, 1996, 117 Ark. 254;C. & M. Digest, § 1976;118 Ark. 524;103 Ark. 468;sec. 16, art. 19, Constitution.

W. J. Dungan, for appellee.

No bill of exceptions in the case.The motion for new trial was presented in vacation without a compliance with the statute.C. & M. Digest, § 1311;129 Ark. 550.Appellee was the party aggrieved, and had a right to the appeal.135 Ark. 83;90 Ark. 219;87 Ark. 160.The same situation is presented here as in the case of 118 Ark. 524.The county court had the authority to make the contract to pay the amount agreed on towards the construction of the bridges.72 Ark. 330.The Road District purchased the claim or warrants from the bridge company and had its order to the clerk directing that they be delivered to the district when issued, and § 479, C. & M. Digest, has no application to this case.The warrants were regularly issued, and no error committed in refusing to allow the testimony claiming that there was no adjournment of court to date of order of issuance.87 Ark. 123.There is no dispute as to the existence of the contract and the justice of the claim, and the warrants should have been reissued and not canceled.118 Ark. 524.The attack made upon the order of allowance of the warrants is collateral and cannot operate to invalidate them.

OPINION

HART, J.,(after stating the facts).

This court has held that, in a proceeding under the statute to call in the outstanding warrants of a county to redeem cancel, reissue or classify them, only those warrants may be rejected which could not have been valid claims against the county under any state of the proof, or where the judgment of allowance was obtained by fraud.Monroe County v. Brown,118 Ark. 524, 177 S.W. 40, andIzard County v. Vincennes Bridge Company,122 Ark. 557, 184 S.W. 67.Those cases hold, further, that a review for mere errors of the court in canceling and refusing to reissue warrants is a collateral attack on the judgment of the county court, which is not authorized under the statute.It appears from the record that...