It was agreed by counsel in this case that the point in issue is: “Is a county treasurer who succeeds himself entitled to commission on funds carried over from one term to another, when he had received commission on said funds during his former term?”
It is held in Lawrence County v. Hudson, 41 Ark. 494, that a county treasurer is entitled, under the statute, to commissions on school funds received from the former treasurer, the court saying: “There is no reason in compelling the treasurer to give bond, and assume the custody of funds already collected, under a grave responsibility, and confining him to the receipts which come in during his term of office for his compensation. We can see no difference between a treasurer who succeeds himself and a treasurer who succeeds another person as treasurer. One who succeeds himself as treasurer is required to take the oath of office, and to give bond on entering upon his second term, precisely as he did in entering upon his first term. He is the same person in both terms, it is true, but his terms of office are not the same; they are separate and distinct terms, as much so as where two terms are filled by different persons.
Question not raised below. When treasurer not estopped to claim commissions. Fees payable in kind.It is insisted by counsel for the county that the appellant’s demand was barred by the statute of limitations. But this question was not raised below, and will not be considered here. It is true, as counsel contends, that no formal pleadings are required in the county court, but the statute of limitations was not pleaded orally, or in any manner in the circuit court.
The fact that the treasurer made settlements at the end of his last term, and did not include these commissions in his settlement, does not conclude him, as his right to them was not in issue and was not adjudicated in any settlement. “That which has not been tried cannot have been adjudicated. * * * * That which is not within the scope of the issues presented cannot be concluded by the judgment.” Woerner, Administration, sec. 570, and cases cited, n. 3; Wells, Res. Adj. p. 8, sec. 14; King v. Chase, 15 N. H. 15; Wells, Res. Adj. sec. 371.
We are of the opinion that the court erred in refusing the instructions asked by the appellant, and in giving those for the appellee.
The fees of the treasurer are payable in kind, of course, out of the particular funds.
For the error indicated, the judgment is reversed, and the cause is remanded for a new trial.
As the fees of the appellant, as county treasurer, in this case accrued, and the cause was tried in the circuit court, before the passage of the act approved March 12, 1895, the questions involved here are not affected by that act, which establishes a different rule, so far, at least, as the commissions of county treasurers on school funds are concerned.