on rehearing.
Opinion delivered March 1, 1909.
Hart, J.The Code of Practice in Civil Cases iñ Arkansas provides as follows:
“Section 2. Remedies in civil cases in this State are divided into two classes.
“First. Actions.
“Second. Special Proceedings.
“Section 3. A civil action is an ordinary preceding in a court of justice by one party against another for the enforcement of a private right or the redress or prevention of a private wrong. It may also be brought for the recovery of a penalty or forfeiture.
“Section 4. Every other remedy in a civil case is a special proceeding.” Kirby’s Digest, § § 5977-9.
Section 6033 of Kirby’s Digest provides that a civil action is commenced by filing in the office of the clerk of the proper court a complaint and causing a summons to be issued thereon.
Thus it will be seen that the matter of confirming the accounts either of guardians or of administrators or executors is not a civil action but a special proceeding.
In the case of Riley v. Norman, 39 Ark. 166, the court said that administration proceedings are much in the nature of proceedings in rem. By analogy guardianship proceedings are the same.
The matter of the confirmation of guardianship settlements being a special proceeding, it seems to us that section 5075 of Kirby’s Digest, which extends the time within which persons under the disability of minority or of insanity may bring any action, does not refer to these special proceedings, but refers to civil actions. Hence the statute can have no application to the case at bar.
We have also considered the question whether the matter of the confirmation of the acocunts not appealed from should be treated as conclusive except in chancery for fraud or some other recognized ground of chancery jurisdiction, or merely as prima facie to be reviewed and restated by the court at any time before the final settlement is made.
In the case of administrator’s settlements, it is expressly provided by statute that, unless exceptions are filed to the,account within the time prescribed by .the statute, all persons interested will be forever barred from excepting to such accounts or any item thereof. ■ While no such provision appears in the statutes in relation to the accounts of guardians of either infants or insane persons, still, as we pointed out in our original opinion, this court held in the case of Phelps v. Buck, 40 Ark. 219, that when the settlements of guardians have been confirmed by the probate court, and the judgment of confirmation has not been appealed from within the time prescribed by statute, they cannot be disturbed save in chancery for fraud or some other recognized ground of chancery jurisdiction. This decision was evidently based on the ground that such proceedings are in the nature of procedings in rem■ This is the effect of the decision in this case on the former appeal from the chancery court. Nelson v. Cowling, 77 Ark. 355.
In our former opinion the writer thereof inadvertently found in,favor of appellant as to the item of $26.50. This was error. The exceptions as to this item was conceded by counsel for appellant in their oral argument to be well taken, and the proof establishes that it is a proper charge to be made against appellant’s intestate.
Counsel for appellee also contend that the court erred in holding that the matter of rents for the years 1892, 1893 and 1894 had been adjudicated. In the case of Nelson v. Cowling, 77 Ark. at page 355, the court said in referencé to the rents for those years:
“A careful scrutiny of the testimony touching only the matter of rents is each settlement discovers at most only a negligent failure to rent the land for certain years, and in other years a negligent failure to rent the land for what it was worth, for instance, the failure to rent the land for the years 1892 and 1893 and the renting of the same for the improvements put on it in 1894, and the renting of the land in other years for a less sum than appellant could, with ordinary prudence have got for it. These were matters for, and were considered by, the probate court.”
Counsel for appellee call our attention to the fact that they did except to the item of interest, viz.: $186.33. Their exception to it was based, however, on their claim that the principal of $385.20 was not a proper charge, and that the balance on a proper accounting would have been in favor of the ward, instead of the guardian. This court found that some amount was due the guardian’s estate by his ward’s estate, but did not allow any interest because of the neglect of duty in the matter of settling with the court by the guardian. However, an examination of the record shows the exception to have been made; and we cheerfully make the correction. Otherwise it might appear that counsel had been neglectful of their client’s interest, when in fact they have been zealous in guarding it, and have ably and earnestly fought the case on all issues that seemed to present a vulnerable point of attack.
It is ordered that the exception as to the item of $26.50 should be sustained, and that in all other respects the motion for rehearing is denied.