(dissenting). The county court is the proper forum where the liability of the clerk is to be ascertained and an adjudication in that forum is conclusive against him except that the judgment may be opened up in chancery for fraud, accident, or mistake. The majority opinion recognizes that the rule with respect to setting aside judgments for fraud means fraud in the procurement of the judgment, but it is said that there is a modification of that rule with respect to the judgment of county courts in the allowance of claims against the county. I think this overrules all our early cases bearing on the question.
The case of Monroe County v. Brown, 118 Ark. 524, is cited to sustain the opinion of the majority. It seems to me that this case takes exactly the contrary view. In discussing the question it cited the cases of State v. Perkins, 101 Ark. 358, and Fuller v. State, for the use of Craighead County, 112 Ark. 91. In the former case the State brought a suit in equity against a collector of taxes to set aside, on account of fraud, a judgment of the county court confirming his settlement as collector of the county and to recover the balance due from him. It was alleged and proved that the collector retained as his commission for service 5 per cent, on the amount collected instead of 3% per cent, and that this gave the chancery court jurisdiction on the ground of fraud. The court held that the county court had jurisdiction to examine the settlement made with the collector and that its judgment confirming the settlement was conclusive of its correctness. The court held that there was no fraud practiced on the county court in securing the confirmation of the collector’s settlement and affirmed the judgment of the court below dismissing the bill of the State for want of equity.
In the latter case the court held that a county treasurer was not entitled to a commission on the sale of the bonds of a drainage district and that the allowance of a commission therefor was a fraud in law against which equity would relieve. The court referred to the case of State v. Perkins, supra, and said that the county court’s error in that case consisted in computing the commission of the collector at 5 per cent, on each separate fund instead of computing it upon the aggregate collection from the graduated basis fixed by the statute. The court recognized that this was an error which should have been corrected by appeal.
In the case of Izard County v. Vincennes Bridge Co., 122 Ark. 557, the court recognized these principles of law and expressly held that the county court in calling in warrants was not authorized to review its former judgment for mere errors in the allowance of claims. Hence I cannot agree with that part of the majority opinion which holds that there has been a modification' of the well-established rule above set forth.
Again I do not agree with the opinion of the majority which holds that the testimony was sufficient to constitute such a fraud 'as would justify a court in setting aside the judgment of a county court. I refer to the following language: “We are of the opinion, however, that the fact that appellee was the clerk of the circuit court, and thus occupied a confidential relationship toward the county with respect to his duty in .correctly keeping the records of the proceedings of the circuit court and the items for which fees were allowed, and that throughout his two terms he presented very numerous accounts containing illegal and incorrect items, showing that he was systematically padding his accounts, was sufficient to constitute such a fraud as would justify a court in setting aside such judgments allowed. ’ ’
I presume the language quoted is thought to bring the case within the principle announced in Place v. State, 77 Ark. 328. In that case suit was brought by the State against the county clerk and the bondsmen on separate bonds for three successive terms. The court said: “The county clerk is the custodian of the books of the county and the keeper of the various accounts of the county with himself, as well as with all others who have dealings with the county. It is here alleged that the clerk presented and procured the allowance of improper and fictitious accounts, fraudulently issued scrip to himself upon fictitious allowances and upon judgments or allowances which he had fraudulently raised in amount, and that the accounts kept by him are so complicated that it is impossible to point out and designate the various items, or ascertain the liability of the respective bondsmen without the aid of a court of equity and the reference to a master.
“We think these allegations are sufficient to give a court of equity jurisdiction, and justify a joinder of the several sureties in one suit.”
The jurisdiction of the chancery court in that case was based on the fact that his accounts ran through three successive terms, and as kept by him were so complicated that it was impossible to ascertain the liability of the respective bondsmen without the aid of a court of equity. No such allegations or proof are made in the present case. The facts bring it squarely within the rule announced in State v. Perkins, supra. There as here, it was urged that chancery has jurisdiction on the ground of fraud. It was pointed out that the collector and his deputy, who had had experience in making such settlements, and the judge of the county court, all knew that the clerk was charging 5 per cent, commission, and being allowed credit therefor at the time the settlement was made and confirmed.
The court held that this did not constitute evidence of any fraud or concealment practiced upon the court to procure the confirmation of the settlement. So here the record shows that there was no concealment made by the clerk. He exhibited his accounts to the county court and made >a full statement to the court of what charges he thought he was allowed under the statute, and the court was fully advised in the matter when he confirmed the settlement. This is shown both by the testimony of the circuit clerk and of the presiding judge of the county court. It seems to me that the opinion of the majority takes away from the judgment of the county court confirming settlements with county officers the conclusiveness which has heretofore been given them.