dissenting. In 1970 the appellee Williford brought a taxpayer’s suit to require the county sheriff to account for money he had received from Southland Racing Corporation and had not paid over to Crittenden County. The chancellor’s decree required the sheriff to account to the county for the money. The decree was, in the main, affirmed. Thomas v. Williford, 259 Ark. 354, 534 S.W. 2d 2 (1976). On remand the final decree entered judgment against the sheriff for $106,467. Part of that amount, $29,040, was paid to the county by the sureties on the sheriff’s bond. With the entry of that final decree the suit in chancery came to an end.
Later that year, on November 1, 1976, Williford filed in the county court the present claim against the county for $25,480, representing expenses and attorneys’ fees that he and other citizens of the county had paid in prosecuting the earlier suit. On November 12, 1976, the county court entered an order acknowleding receipt of the money from the sureties and directing that that sum be kept in a separate and distinct fund, apart from the county general fund, “until proper distribution can be determined.” The county court, however, denied Williford’s claim.
After Williford appealed to the circuit court, the case was transferred to the chancery court in 1980, without objection. In 1983, seven years after Williford had filed his claim in the county court, he amended his pleadings to assert for the first time the equitable theory that his actions had created a common fund for the benefit of the taxpayers, that the fund was in the county treasury, segregated from county general funds, and that the fund was therefore subject to the jurisdiction of the chancery court. The chancellor’s decree upholding that theory is being affirmed by this court.
The court’s reliance upon the common-fund theory of chancery jurisdiction might well be sound if Willliford had asserted that claim in the original taxpayer’s suit in 1976, when the case was still pending in the chancery court. Williford, however, permitted the chancery case to end with a simple money judgment in favor of the county and against the sheriff and his sureties. When part of the judgment was actually paid to the county, the money belonged to the county and was subject to the control of the county court, not of the chancery court. It was the county court that directed the sureties’ payment to be kept separate.
Ever since 1874 our Constitution, Art. 7 § 28, has provided that the county courts shall have exclusive original jurisdiction in all matters pertaining to the disbursement of money for county purposes. If that court disallows a claim against the county, as in the present case, the claimant’s remedy is by appeal to the circuit court, where the case is tried de novo. Such a case, however, cannot be transferred to the chancery court, for that would put the chancery court in the position of reviewing a decision of the county court. It has no such authority.
Among our many cases on the subject I need discuss only one: McLain v. Brewington, 138 Ark. 157, 211 S.W. 174 (1919). At the time of that decision all county courts and all probate courts were presided over by the county judge, and appeals from either court were taken to the circuit court for trial de novo. That case began as a proceeding in the probate court for the appointment of a guardian for two minors. An appeal from the probate court’s decision was taken to the circuit court. The case, like this one, was transferred to the chancery court without objection. There it was consolidated with a pending suit for the custody of the two children, a matter within the jurisdiction of chancery. McLain appealed to the Supreme Court from the final decree in the consolidated case. We reversed that part of the decree affecting the guardianship, for want of subject-matter jurisdiction in the chancery court. The court’s language should, I think, control the present dispute:
The first question presented is whether or not the chancery court had jurisdiction to hear and determine the appeal from the probate court. We are clearly of the opinion that the chancery court had no such jurisdiction. The Constitution (art. VII, § 34) confers exclusive jurisdiction upon probate courts “in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians and persons of unsound mind and their estates;” and there is also conferred a right of appeal to the circuit courts from judgments and orders of probate courts. There is no right of appeal to the chancery court.
The statute authorizing transfers of causes from the circuit to the chancery court, or vice versa, applies only to those actions which originate in one or the other of those courts (Kirby’s Digest, §§ 5991, 5994. 5595), and does not confer authority for the transfer of a cause appealed to the circuit court from one of the inferior courts. Jackson v. Gorman, 70 Ark. 88; McCracken v. McBee, 96 Ark. 251; Brownfield v. Dudley E. Jones Co., 98 Ark. 495.
There was no objection to the transfer of the cause, but consent can not confer jurisdiction to the subject-matter of the proceedings where such jurisdiction could not, under any circumstances, otherwise exist. Price v. Madison County Bank, 90 Ark. 195.November 13, 1984 679 S.W.2d 795
On the authority of that case and others, I would reverse the decree in this case and remand the cause to the chancery court with instructions to return the proceeding to the circuit court. Perhaps Williford will prevail there, but that point is not now before us.
Dudley, J., joins in this dissent.