The opinion
Carleton Harris, Chief Justice, dissenting.
In my opinion, the decree of the Chancery Court should be reversed.
We have repeatedly held that a county court, in allowing claims against the county, acts judicially, and its judgments are not open for collateral attack except for fraud or lack of jurisdiction. See Monroe County v. Brown, 118 Ark. 524 , 117 S. W. 40 . Certainly, the county court had jurisdiction. As stated in Ladd v. Stubblefield, 195 Ark. 261 , 111 S. W. 2d 555 :
‘ ‘ The county court, and that court only, has the power to allow claims against the various funds involved in this controversy. ’ ’
The court very clearly held in that opinion that the county court had jurisdiction of the subject matter, i.e., allowing claims.
Nor is there any finding by the Majority in this case that the claim was fraudulent. In fact, the Majority state:
“We must agree with appellants that there is nothing in the record to justify a finding that appellants acted with any fraudulent intent. ’ ’
Further, from the majority opinion:
“We find nothing to show that appellants were not acting in good faith for what they considered to be to the best interests of Ashley County.”
Therefore, in accordance with the language cited in Monroe County v. Brown, supra, since the county judge acted judicially in approving the claim here in question, and this Court has said there was no fraud, the judgment (allowance of claim) was not open to collateral attack. Rather, the correct remedy, by any taxpayer feeling aggrieved at the allowance of such claim, was by appeal to the Circuit Court. This is the remedy provided by our Constitution. Section 51, Article 7 of the Constitution of the State of Arkansas provides:
“In all cases of allowances made for or against counties, cities or towns, an appeal shall lie to the circuit court of the county, at the instance of the party aggrieved, or on the intervention of any citizen or resident and taxpayer of such county, city or town, on the same terms and conditions on which appeals may be granted to the circuit court in other cases; and the matter pertaining to any such allowance shall be tried in the circuit court de novo.”
In view of the citations herein set out, I am strongly of the opinion that the Chancery Court was without jurisdiction to hear this cause. This is the first point raised by appellants, and since I consider this argument well founded, a discussion of the merits of the cause is unnecessary. In my view, the Chancery Court was without power to issue an injunction in this case, and I deem it appropriate to add that the very fact that this Court has seen fit to change the nature of the proceeding, treating it as a petition for declaratory judgment, is evidence enough that appellees pursued an improper remedy.