Opinion on Motion for Rehearing.
Delivered May 28, 1898.
Wood, J.This appeal is from a judgment for $1,511.71, aggregate amount of principal and damages by way of penalty, recovered by appellee against appellant in a proceeding for summary judgment instituted by John T. Hicks, prosecuting attorney for the first judicial district. The facts forming the basis for the contention of the respective parties, and upon which the cause was heard, are as follows: The State of Arkansas recovered of Jno. B. Wilson et al. the sum of $9,410.43, of which, the sum of $8,100.38 belonged to the several school districts of St. Francis county, and $1,310.55 belonged to St. Francis county.
The above amount was collected by the sheriff on execution. Other facts appear in the following statement, to which the parties agree: “In this cause it is agreed that the suit, styled ‘State of Arkansas v. J. B. Wilson et al.,’ in which the the execution issued, was instituted by H. F. Eoleson, then prosecuting attorney, and Norton & Prewitt, at the instance and request of J. W. Aven, incoming treasurer of St. Francis county, against J. B. Wilson, the outgoing treasurer of said county, and the sureties on his bond as such treasurer; that, likewise at the instance and request of said incoming treasurer, they acted for him in the county court (prior to the bridging of said suit in the circuit court), where they had a balance struck against said outgoing treasurer, and an order on him to pay over, and, after all the money had beeii made on said execution except 2 per cent., they again litigated the said J. B. Wilson about the unpaid 2 per cent, in a cause which is now in the supreme court of the state of Arkansas. That the execution which went-into the hands of the defendant, W. E. Williams, on the judgment recovered against the said J. B. Wilson and his bondsmen, was sued out and placed in his hands by Norton & Prewitt, and when this defendant had in his hands the sum of $1,230.05, a balance collected on said execution, the said Norton & Prewitt, as attorneys of record in the cause in which the execution issued, demanded that he pay said sum to them, which he did, but, before doing so, he asked the advice of lawyers in good .standing, — M. T. Sanders of Helena, and E. J. Williams of Forrest City, and the attorney general of the state, J. P. Clarke, — all of whom told this defendant that, if Norton & Prewitt were attorneys of record in the cause in which the execution issued, it would be proper to pay it to them. He did then pay it to them, and took their receipt, a copy of which is exhibited. H. F. Eoleson was not in the county when the execution was sued out, and the money collected and paid over. Afterwards, J. P. Clarke, the attorney general, told this defendant that when he (the attorney general) told him (defendant) that it would be right to pay Norton & Prewitt he supposed that Norton & Prewitt had been employed by the county court.”
It was at the instance and request of said J. W. Aven that H. F. Eoleson engaged in the case and prosecuted it, and at the instance and request of said Aven that Norton & Prewitt engaged in the case and prosecuted it. Norton & Prewitt turned over to the treasurer the amount they receipted defendant for, less $944.83, which they retained as attorney’s fee for counsel engaged in the case.
The cause is submitted upon the motion for summary judgment, the answer thereto and the agreed facts. Gan a summary judgment he rendered against appellant under the facts of this case? is the only question for our consideration.
From sections 4245 and 4252 we excerpt the following: Judgments and final orders may be obtained, on motion, by plaintiffs in execution against sheriffs and their sureties, for failing to pay over money collected upon an execution, on demand of the plaintiff,'his agent, or attorney; judgment [shall be] for amount so collected and ten per centum per month damages from the time such demand was made. This act was passed in 1857, and it is invoked by appellee to sustain the summary judgment. In 1875 the following was enacted: “All moneys collected by the sheriffs shall be paid to the person en - titled to receive the same or his order, or his attorney of record.” Sand. & H. Dig., § 3318. Construing the above sections together, it is clear that a summary judgment can now only be rendered against a sheriff when he has failed to pay over money collected to the person entitled to receive same, or his order, or attorney of record. Section 4252, supra, prescribes the penalty for failing to pay over money collected upon an execution upon demand, and designates the proper parties to make demand, while section 3318, supra, names the parties to whom the sheriff shall pay over the money. The parties entitled to l’eceive the money were the county and the school districts, or their “attorney of record.”
It is agreed that appellant paid over all the money collected by him. He paid $1,230.05 of it to Norton & Prewitt upon their demanding same of him. From this amount Norton & Prewitt deducted the sum of $944.83 as their fee for services rendered in the case, and turned the balance into the county treasury. So the simple question, at last, which determines the controversy is: were Norton & Prewitt attorneys of record in the case wherein judgment was obtained and execution issued, upon which the sheriff (appellant) collected the money? Or, to put the question in a different form, does the record of the case in which the money was collected show that Norton & Prewitt were attorneys for the plaintiff in whose favor the judgment was rendered? The record of the judgment upon which the execution was issued and the money collected (exhibited with the answer) recites: “Now, on this day comes the state by H. F. Roleson, Esq., prosecuting attorney for the first judicial circuit, and Norton & Prewitt, his attorneys,” etc. In. the statement of facts agreed upon appears the following: “When this defendant (appellant) had in his hands the sum of $1,230.05, a balance collected on said execution, the said Norton & Prewitt, as attorneys of record in the cause in tvhich the exectttion issued, demanded that he pay said sum to them,” etc. So the answer is as simple and easy as the question: Norton & Prewitt were attorneys of record. This is purely a question of fact, and.indeed there seems to be no controversy as to the fact that Norton & Prewitt were attorneys of record for the plaintiff who recovered the judgment upon which execution issued whereby the money was collected. That should properly end this ease, for it shows that appellant has complied with the very letter of the statute requiring him to pay over money collected (Sand. & H. Dig., § 3318); and surely it would be a travesty upon justice to visit upon him the severe penalties denounced by § 4252, supra, when he has done the very thing which he is commanded and required to do.
But, notwithstanding the record of the case in which the execution issued shows that Norton & Prewitt were attorneys for the state in that case (about which there is really no dispute) , it is nevertheless insisted that appellant is liable, for the reason that the relation of attorney and client in said case did not, and could not, in fact exist between the appellee and Norton & Prewitt. The state in that case was only a nominal party, the suit running in her name only because the bond of the defaulting treasurer was made to the state. The funds sued for belonged to the county and school districts. We are by no means prepared to concede that these corporations could have no attorney except the prosecuting attorney, and that the relation of attorney and client could not exist between them and Norton & Prewitt. This court, in Conway County v. Little Rock & Fort Smith R. Co., 30 Ark. 50, recognizes that there might be other attorneys for counties than the prosecuting attorney; and, as to school districts, they are independent corporations managed by a board of directors, and. they may contract and be contracted with, sue and be sued. Sand. & H. Dig., § 6986. They may sue each other. School Dist. No. 15 v. School Dist. of Waldron, 63 Ark. 433. Therefore, were the question before us, it might be pertinent to inquire how could the prosecuting attorney, if he is the only attorney a school district can have, bring a suit for one district against another, and defend the suit which he has brought, and thus be representing the plaintiff and defendant at the same time and in the same suit?
But, upon the undisputed facts of this record, we do not conceive that the question as to whether or not Norton & Prewitt sustained with the state the contractual relation of attorney and client in the suit wherein the execution issued is germane to this controversy. The state is not suing Norton & Prewitt for money improperly paid to and received by them as attorneys. Nor are Norton & Prewitt suing the state for a fee. Therefore we cannot properly and do not pass upon the question, in this proceeding, as to whether the relation of attorney and client actually existed between Norton & Prewitt and the state or the county and school districts, who are the real parties in interest.
The names of Norton & Prewitt were signed to the complaint as attorneys for the plaintiff (state). They so appear in the record of the proceedings and in the judgment. They had the execution issued, and placed the same in the hands of the sheriff. In Conway County v. Little Rock & Ft. Smith R. Co., supra, it is said: “It was natural to suppose that the attorney who had obtained the judgment was the proper party to whom payment should be made.” “Ordinarily,” continues the court, “an attorney is authorized, by virtue of his retainer, to collect the judgment and execute, in the name of his client, a proper acquittance therefor. His authority does not cease upon the rendition of judgment, but continues until the money is made, unless he is sooner discharged. We are not aware of any rule of law that should .vary the practice when the client happens to be a municipal or quasi municipal corporation.” This furnishes a simple, reasonable and just rule for all parties involved. As to the owner of the judgment, since he has trusted or permitted the attorney of record to conduct the litigation to a successful termination, and has received the benefit of his labors in that capacity, he can therefore trust him to receive the money collected by the sheriff. As to the attorney, it places him, with reference to the fruits of his labors, in dignified and honorable trust relatiouship to his client. And as to the sheriff, while it devolves upon him the responsibility of looking to the record to ascertain whom it shows to be the attorney in the ease, it provides him a safe and convenient method for paying over the money to the proper parties. Such is the reason and the letter of the statute. The policy of these summary statutes is to punish only where there has been some plain neglect of duty enjoined by the statute or the order of the court. The statutes are declaratory of the power inherent in courts of justice over their own officers to prevent them from, or punish them for, committing acts of dishonesty or impropriety calculated to bring contempt upon the administration of the law. In re Paschal, 10 Wall. 491; 4 Blackstone, Comm. p. 283, star page 284; in re Pitman, 1 Curtis (U. S. Ct. Ct.), 186. See, also, in this connection, Mundy v. Strong, 31 Atl. 611.
He who would avail himself of the remedy by amercement for official deficiency under a summary statute must come within both the letter and spirit of the law. Moore v. McCliff, 16 Ohio St. 50.
It is not pretended that the sheriff, in paying over the money to the attorney of record, was acting in bad faith. On the contrary, the record shows him most faithful and diligent in his efforts to conform to the requirements of the law. While this would not have exonerated him had he failed • entirely, it argues the righteousness of. the rule which courts have adopted to seize the slightest circumstance to relieve a conscientious and vigilant officer, who has scrupulously endeavored to do his duty, of the rigorous penalty usually denounced by such statutes. Murfree, Sheriffs, § 947, and authorities cited.
It was never intended that resort should be had to summary proceedings where there has been no palpable dereliction on the part of the officer; where he has not subjected himself to the penalties prescribed. The statute was not enacted as a substitute for the ordinary action at law to recover as for a debt or for money had and received. The procedure is altogether different; the rights and defenses may not be the same. Custer v. Agnew, 83 Ill. 194; Murfree, Sheriffs, § 969.
Section 7192 of Sand. & H. Dig., which requires that “the sheriff or other officer collecting any money due to the state shall pay the same into the public treasury and obtain a quietus therefor, and not to the attorney general or any other attorney or agent employed in the collection of the same, or to any other person, unless otherwise directed by law,” has reference solely to the state herself as the sovereign, and not to any of her political dependencies or subdivisions. The “public treasury” there referred to is the state treasury. The above section therefore has no application here, as the money collected belonged to the county and school districts, and could not go into the state treasury.
The judgment is therefore reversed, and the cause is dismissed