Newton v. Askew , 53 Ark. 476 ( 1890 )

HUGHES, J.

The question in this case arises upon a demurrer to the answer of appellant to the petition of appellee for a writ of mandamus to compel appellant, as collector of revenue in Ouachita county, to receive certain county warrants in payment of county taxes assessed against the property of appellee, which warrants had been tendered by appellee in payment of said taxes, and refused-by appellant as ■such collector.

Appellee in his answer pleaded the order and judgment ■of the county court made at its April term, 1876, barring the scrip involved in this suit, pursuant to the order and judgment ■of said court before then made, that all such scrip, as should not be presented for examination and re-issue or cancellation before that time, should be forever barred, and averred in his answer that notice of said order.calling in the warrants, which was made at the January term previous, was found by the court to have been given as required by law and the previous order of the court, and it was alleged in the answer that the judgment of the county court recited that “due notice of said order had been given as required by law.”

The ground of the demurrer was that the answer did not show that the proper notice to file the warrants for cancellation and re-issue had been given. The proceedings and judgment of the county court were exhibited with the answer. The demurrer was sustained, and the case brought up by appeal.

Were the allegations in the answer sufficient to constitute a defense to the action?

-Presumjtionof ranty. The county court has jurisdiction to call in county warrants for examination, cancellation and re-issue, and is “a superior court of record in the sense that, within the scope of the subject-matter over which it has jurisdiction, and in the ab-' sence of a showing to the contrary, it will be presumed to have acted upon facts sufficient to maintain its action.” Parsel v. Barnes, 25 Ark., 261; Allen v. Bankston, collector, 33 Ark., 740; Ouachita Co. v. Wolcott, 13 Otto, 559; Pierce v. Edington, 38 Ark., 157. There is nothing to show that the county court did not act upon facts sufficient to maintain its action.

Iffect, 2. Exhibits to 1e a dings — i An exhibit to a complaint or answer in a suit at law, not the foundation of the action or defense, cannot be considered ■on demurrer. Richardson v. Williams, 37 Ark., 542; Jacks v. Chaffin et al., 34 Ark., 534; Abbott v. Rowan, 33 Ark., 593; Chamblee v. Stokes, 33 Ark., 543.

In a suit in equity the rule is otherwise, and an exhibit to the complaint or answer is part of the record, and, if it is the foundation of the action or defense, it will explain and even control the averments in the complaint or answer. Beavers v. Baucum, 33 Ark., 722.

3-^1 A judgment, order, sentence or decree made by any court in this State without notice is void, as also all proceedings had thereunder, as provided in section 5201 of Mansfield’s Digest. But “in all cases where it appears, from a recital in the records of any such court, that such notice has been given, it shall be evidence of such fact.” Sec. 5202, Mansfield’s Digest; Coons v. Throckmorton, 25 Ark., 60; Cairo & Fulton R. R. Co. v. Parks, 32 Ark., 131. The .answer contained allegations sufficient to constitute a defense to the action; the demurrer admitted the facts to be as alleged in the answer, and the exhibits to the answer could not be considered to control its allegations. They were no part of the pleadings.

Reversed for error in sustaining demurrer to answer, and ■remanded.