Hemphill County v. Adams

406 S.W.2d 267, 1966 Tex. App. LEXIS 2895
CourtCourt of Appeals of Texas
DecidedMay 23, 1966
DocketNo. 7613
StatusPublished
Cited by5 cases

This text of 406 S.W.2d 267 (Hemphill County v. Adams) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hemphill County v. Adams, 406 S.W.2d 267, 1966 Tex. App. LEXIS 2895 (Tex. Ct. App. 1966).

Opinions

CHAPMAN, Justice.

This is an appeal styled by the brief of appellant as Hemphill County, Texas, Appellant v. Walter Adams and Harry Rath-jen, Appellees, from a judgment of the 31st Judicial District Court of Hemphill County. However, in the Statement of the Nature of the Case the county attorney for Hemphill County, appearing as attorney for the named appellant, relates that during the first appeal1 the plaintiff amended its cause of action and joined the surety upon the defendants’ bond as a party to the suit. Lawyers Surety Corporation has filed its answer, its motion for summary judgment, and its reply to appellant’s brief.

We make the above explanatory statement for the reason that the county judge testified herein that neither he nor the commissioners court had ever made any claim against Mr. Rathjen for the proceeds of two jeeps alleged in appellant’s pleadings to have been converted by the former sheriff of Hemphill County at a time subsequent to his resignation as sheriff; that the county never put any money in them; and so far as they were concerned they were not converted or stolen by Mr. Rathjen. Of course, this statement does not alter the fact that titles to the jeeps were in Hemphill County and were not transferred out by the commissioners court. The former sheriff resigned about July 3 or 4, 1961, to accept appointment as postmaster of Canadian, Texas. One of the jeeps was sold on November 2, 1961, and one on November 8, 1961.

On February 9, 1959, Hemphill County established a Civil Defense unit and appel-lee Harry Rathjen, then its sheriff, was appointed director. Acquisition of various types of property was made by Mr. Rath-jen from Texas Surplus Property Agency of Lubbock. The director paid his own funds to the Lubbock Agency out of his individual bank account for the handling charges incident to such acquisition. Hemphill County commissioners requisitioned through Rathjen certain items for var[269]*269ious precincts and the director was reimbursed by the county. Among the many items acquired by the Civil Defense unit through its director, Rathjen, were two jeeps. The machines were not operational and he expended approximately $1,105.52 to place them in working order, paying for such repairs out of his personal bank account. A witness for the Texas Surplus Property Agency testified the county was at liberty to do as they pleased with the property after two years.

The stated reasons for the acquisition of the jeeps were for disasters such as tornadoes and prairie fires. However, ranchers of the county during the interim purchased a four-wheel drive heavy-duty pickup. The county-owned two-way radio was installed therein rather than in one of the jeeps as Rathjen had intended. The jeeps then became of no value so far as the original intended purpose relating to their acquisition, were never used for such purposes, and were rarely used for any purpose during the time Rathjen was sheriff and director of the Civil Defense unit of the county. The testimony shows that at or about the time he was appointed postmaster he offered the jeeps to the county for the amount he had expended on them and the county was not interested. As above stated he later sold them, receiving less money for them than he had expended in order to make them operational. Suit was filed by the county attorney on behalf of Hemphill County for the $1,050.00 the jeeps were sold for, alleging conversion of that amount by Rathjen and Walter Adams, his successor as sheriff. Adams had transferred titles out of the county.

After a day and a half of testimony the trial court held, inter alia, that the suit was barred by the two-year statute of limitation and dismissed the case. More than two years after the sale of the jeeps the original suit was filed against Rathjen and Adams. Then before the period of four years had elapsed the bonding company was joined as a party defendant. The principal questions to be decided are whether any limitation runs against the county, and if so, whether the two-year or four-year statutes of limitation are applicable. Appellant contends that limitation does not run for the reason that Hemphill County was operating in a governmental capacity as an agency of the state “ * * * and no limitation will ever run as to the same.” This question has given us no end of trouble in an effort to resolve the issue, and much confusion on the subject is shown in the myriad of cases we have studied.

The case cited by appellant for its contention that “ * * * no limitation will ever run as to the same,” (referring to its cause of action asserted) is Miller v. El Paso County, 136 Tex. 370, 150 S.W.2d 1000. The statement relied on in the case is pure dictum and most unusual for the learned writer whose many opinions are so clear and concise. The late Chief Justice who authored the opinion prefaced the statement, obviously relied on by appellant in Syl. 6, by saying that the statements he had already made “ * * * renders it unnecessary for us to pass on the other assignments raised in the briefs.” He then called attention to a case relied on by defendants in error, merely stating that such case, “ * * * dealt with a homerule city and not a county, and that a city may exercise proprietary functions, while a county, as a mere subdivision of the State, can exercise only governmental functions.” (Emphasis added). Actually, the case he referred to, Davis v. City of Taylor, 123 Tex. 39, 67 S.W.2d 1033, nowhere held that: “[A] county, as a mere subdivision of the State, can exercise only governmental functions.” No county was even involved in the case. It is not completely clear if the quote had reference to a legal question being dealt with in the case referred to or if the writer was making the statement that * * * a county, as a mere subdivision of the State, can exercise only governmental functions.” Regardless of the interpretation placed upon it in this connection, it is still dictum.

[270]*270The theory advocated in some opinions of our courts, unnecessary to cite, originated with the maxim — “Nullum tempus occurrit regi” — that time does not run against the sovereignty; and that a county being an integral part of the state government would not be subject to the bar of statutes of limitations. The Supreme Court of Texas in one of its early opinions2 suggested that the maxim, acknowledged to be in use at that time in the English courts “ * * * amounts to nothing more than that the statute of limitations of that country does not run against the crown." The court then held “ * * * that in actions brought by the state, other than those for land, the statute of limitations will form a bar to the action.”

Then in an opinion announced by the Commission of Appeals and adopted by the Supreme Court on June 6, 1884, the court in Houston & T. C. Ry. Co. v. Travis County, 62 Tex. 16, where Travis County had sued the railway company for damages for the manner in which the company had constructed its railway crossing over a public highway the court held: “The policy of the state in regard to exempting the sovereignty from the operation of statutes of limitations has been construed by the supreme court to have been limited in those statutes to lands, and that personal actions in favor of the state were subject to be barred by lapse of time,” citing State v. Purcell, supra; Governor v. Allbright, 21 Tex. 753 and Governor v. Burnett, 27 Tex. 32, 33.

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Bluebook (online)
406 S.W.2d 267, 1966 Tex. App. LEXIS 2895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hemphill-county-v-adams-texapp-1966.