Davis v. Wildenthal

241 S.W.2d 620

• Court: Court of Appeals of Texas
• Decided: March 7, 1951
• Docket: 4810
• Status: Published

Opinions

McGILL, Justice.

Appellee, who was the Sheriff and Assessor and Collector of Taxes and a tax paying citizen of La Salle County, filed this suit in the 81st Judicial District Court of La Salle County as plaintiff. He named as defendants the County Judge, the Commissioners Court, composed of the County Judge and four County Commissioners and the County Treasurer, all of La Salle County, and a firm of certified public accountants or auditors composed of Charles George, R. B. Thrift and Angus Cockrell, who resided and had their principal place of business in Bexar County. We shall hereafter refer to this firm as the "auditing firm”.

Plaintiff alleged that on the 9th day of October, 1950, the Commissioners Court had by motion duly made and passed, accepted an offer or proposal of the auditing firm for auditing the records of La Salle County and had thereby attempted to bind and obligate the County to pay therefor; that the contract evidenced by said proposal and acceptance thereof was illegal and of no effect for various reasons not necessary to here notice in the view we take of the case; that the auditing firm was proceeding or threatening to commence said audit and plaintiff feared that if they performed such services the county would become obligated to pay them therefor on a quantum meruit basis. It was further alleged that on August 19 and September 23, 1950, the Commissioners Court had illegally transferred sums totaling $4,-500.00 from the jury fund of La Salle County to the general fund of said county and that plaintiff feared the court would make other illegal transfers of constitutional funds of the county. The ultimate relief sought was that the auditing firm be enjoined from auditing or attempting to audit any of the records of La Salle County under said illegal and void contract; that the Commissioners Court be enjoined from paying or taking any steps to pay the auditing firm or any member thereof any sums provided to be paid by said contract; that the Commissioners Court and the County Treasurer be enjoined from transferring any of the constitutional funds of the county and that the treasurer be enjoined from disbursing upon demands of the general fund, constitutional jury funds illegally transferred to the general fund of the county. A temporary restraining order and temporary injunction was prayed for. The court granted a temporary restraining order ex parte and set the matter down for hearing on the application for a temporary injunction. All defendants filed answers. The County Judge’s answer consisted of various special exceptions but in none of the answers was there any exception to plaintiff’s failure to make La Salle County a party to the suit. After hearing the trial court granted a temporary injunction in the following language;

“It is accordingly Ordered, Adjudged And Decreed that the Clerk of this Court issue a Writ of Injunction pending a final hearing and determination of this cause, enjoining the Defendants, George, Thrift and Cockrell, from auditing or attempting to audit any of the records of La Salle County, Texas, and enjoining the Commissioners Court of La Salle County, Texas, from paying, or taking any steps to pay, any sum or sums to the firm of George, Thrift and Cockrell, or any member of said firm, provided to be paid in the offer of said firm, dated October 6, 1950 and the acceptance of said offer by the Commissioners Court of La Salle County, Texas, of October 9, 1950; and enjoining the Defendants M¡. V. Davis, County Judge of La Salle County, Texas, and the Commissioners Court of La Salle County, Texas, from transferring any sums from constitutional funds to any other funds of La Salle County, Texas, and enjoining the Defendant, H. P. Gaddis, County Treasurer of La Salle County, Texas, from disbursing any and all funds transferred to the General Fund of said County from the Jury Fund of said County, upon demands thereon on said General Fund: provided that Plaintiff shall, prior to issuance of such Temporary Injunction, file with the Clerk a bond executed by him in the sum of Five Hundred and No/100 ($500.00) Dollars, payable to the Defendants, with two or more good and sufficient sureties, approved and conditioned as the law requires, to which action of the Court, the defendants then and there excepted and gave notice of appeal to the Court of Civil Appeals for the fourth supreme Judicial District of Texas, sitting at San Antonio.

Entered, this, the 4th day of November, A.D. 1950.”

We note that an appeal bond for costs was timely filed by the County Judge and three of the Commissioners only.

It is apparent of record that La Salle County was a necessary and indispensable party to this suit. Estes v. Commissioners Court of Hood County, Tex.Civ.App., 116 S.W.2d 826; 11 Tex.Jur. Sec. 82, p. 616; Prowse v. Wilson, Tex.Civ.App., 203 S.W.2d 791.

’ Whether an audit of the records and fiscal affairs of the county should be made and paid for out of common funds was of course a matter in which the county was vitally interested. In fact, from a financial point of view, the county was the principal interested party, if not the only one, unless the officers and their bondsmen should be held' liable for the illegal expenditure of county funds should the contract be held, to be void.

Although the point was not raised in the trial court and has not been raised in this court, we think we are not only authorized to notice ,it but that it is our duty to do so. The absence of a necessary or essential party constitutes fundamental error in the judgment rendered. Unquestionably prior to the effective date of the present Texas Rules of Civil Procedure it was the duty of Appellate Courts to notice such error whenever it appeared of record. See Adams v. Bankers Life Co., Tex.Com.App., 36 S.W.2d 182, loc.cit. 185 (5,6) Com.App.Op. approved; 32 Tex. Jur. Sec: 88, p. 128-9.

Since the adoption of the present Rules of Procedure we think it is still our duty to notice such fundamental error where a matter of public interest is involved. See Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979, and especially the concurring opinion of Chief Justice Alexander.

Furthermore, since the adoption of the present Rules it has been said that a court should sua sponte decline to proceed with a trial when it is made to appear that necessary parties are not before it. Grogan Mfg. Co. v. Lane, Tex.Civ.App., 173 S.W.2d 655 (wr.ref.w.m.).

La Salle County was not made a party to this suit by joining the County Judge and County Commissioners and the County treasurer as parties defendant. Miller v. Snelson, Tex.Civ.App., 126 S.W.2d 504, affirmed 133 Tex. 364, 129 S.W.2d 288 on other grounds, (Com.App.op.ad.). Nor was the county made a party to the suit by joining the Commissioners Court eo nomine as a party defendant. Estes v. Commissioners Court of Hood County, supra; Rule 33, Texas Rules of Civil Procedure. Therefore, the judgment of the trial court is reversed and the cause remanded to that court with instructions to dismiss the suit unless La Salle County is made a party thereto.

Reversed and remanded with instructions,