Timon v. San Patricio County

58 Tex. 263, 1 Tex. L. R. 789, 1883 Tex. LEXIS 10

Opinion

West, Associate Justice.

The only assignment of error that it is deemed necessary to consider is the one bringing in question the correctness of the judgment of the district court on the subject of interest.

^Neither the original petition nor its exhibits contain any averments or allusions to the subject of interest, except that in the concluding sentence of the prayer for relief, the pleader asks for interest on the balance due from the time the same should have been paid into the county treasury.

It would seem to be the better practice in suits of this character against officers for the failure to pay over public funds that have come into their hands, where interest is sought to be recovered, for the petition to state fully the facts, giving the dates, amounts, etc., upon which the claim for interest is based. The auditor’s report, too, is silent as to the amount of interest that is due by the plaintiffs in error to the county. Tet this item, which was allowed in this case by the district court, is so important an element in this judgment that it is nearly equal in amount to "the principal sum recovered.

The principal sum named in the judgment is composed of the two amounts found by the auditor to be due by the plaintiffs to the county, for the special and general court funds that the defaulting officer had collected at various dates from 1876 up to 1879. On this principal sum, which is fixed and ascertained by the judgment, interest is calculated, according to the terms of the judgment, from the time when this principal sum ($1,276.20), twelve hundred and sev- ■ enty-six dollars, should have been paid into the county treasury. The amount of interest found by the judgment of the court to be due on the above named sum is one thousand and sixty-nine T\°ir dollars ($1,069.40). What precise date or dates were ascertained by the court, as the time when this money should have been paid into the county treasury, and consequently as the correct date or dates for which the officer would be chargeable with interest, we have been unable satisfactorily to determine after a careful examination of the record.

The twenty-third section of the act of August 21, 1876, provided “ that the collector of taxes shall, whenever he may receive as much as five hundred dollars or more belonging to his county, pay over the same to the county treasurer, only reserving his commissions on the same.” The same provision was in force at the time of the trial, having been transferred from this act to the Eevised Statutes. R. S., art. 4762. ’

[Opinion delivered January 12, 1883.]

We are unable, from the judgment of the court or the auditor’s report, to ascertain with certainty how, or by what process, the item of interest was ascertained. It cannot be arrived at by computing interest on the principal sum found due, as it is in excess of any amount of interest that could have accrued on that particular sum for the time that it appears from the record the collector failed to pay. it over. For this reason it is believed that the judgment should be reversed, in order that there may be a full and more satisfactory inquiry had in the district court as to the amount of interest really due from the plaintiffs in error to the county.

The judgment is reversed and cause remanded.

Reversed and remanded.