Wilson v. Wichita County

4 S.W. 67, 67 Tex. 647, 1887 Tex. LEXIS 939

• Court: Texas Supreme Court
• Decided: April 15, 1887
• Docket: No. 6039
• Status: Published

Opinion

Willie, Chief Justice.

There was no error in sustaining the demurrer to the special plea of defendant. It is too well settled to require discussion that an officer who is custodian of public money does not occupy the relation of a mere bailee for hire, who is responsible only for such care of the money as a prudent man would take of his own. He is bound to account for and pay over the public money, less his commissions, or his sureties must pay it for him. This has been expressly decided in our own State, and also in frequent decisions of the Supreme Court of the United States. (Bogg v. State, 46 Texas, 10; Boyden v. United States, 13 Wallace, 17; United States v. Prescott, 3 Howard, 578; United States v. Morgan, 11 Howard, 154; United States v. Dashiel, 4 Wallace, 182.)

The trial amendment was properly stricken out. It admitted everything of any importance to the plaintiff’s recovery which, was contained in the petition, and was not such a plea as put the plaintiffs upon proof or would authorize proof on the part of the defendant. The special plea to which it referred and whose admissions it adopted confessed every allegation of the petition essential to a recovery by the plaintiff, but sought to avoid them by an excuse for the loss of the money in possession of the defendant Wilson when his successor was qualified. The trial amendment reiterated all these confessions without seeking to avoid their effect, and so presented no defense to the action.

The proposition that the bond was not approved by the county judge is not sustained by the record. His approval appears to the bond over his own name and official designation. The fact that he approved in open commissioners court does not make it the act of that court, even if it would be vitiated were this the case.

It was not necessary to have a statement of the treasurer’s account passed upon by the court before bringing suit. If he had any credits to which he was entitled as against the debit with which he was charged, it was his duty to plead them.

The allegation that Wilson failed to pay over to his successor in office the money sued for was by reasonable intendment an allegation that his successor had qualified. This, under our rules, would have made the averment good against a general demurrer, and the benefit of such a demurrer is all the appellants can claim in the state of the pleading. (Rule 17, District Courts.)

The bond is conditioned that the treasurer would safely keep and faithfully disburse the school fund of said county according to law, and that he would pay such warrants as might be drawn on said fund by competent authority. The breach assigned was that Wilson retained, and refused to deliver to his successor in office, the sum of six hundred and forty-two dollars and twenty-three cents, although, often requested so to do. To disburse money is to pay it out. When the proper authorities requested the treasurer to pay out to tiis successor in office the money belonging to the school fund remaining in his hands, they in effect demanded that he make a disbursement of it. In failing to do so he committed a plain breach of this particular obligation, and his sureties became liable for the money.

This disposes of all the points made in the briefs of counsel. Many of these would not have been noticed, as errors were not assigned upon them, but for the fact that delay was suggested by the appellee, which opened the whole record to revision. The points relied on for a reversal have no merit in them, but as the appellants may have thought that some of them deserved adjudication by this court, we can not say that the appeal was taken solely for delay, and the judgment will be affirmed, but without damages.

Affirmed.

Opinion delivered April 15, 1887.