115 S.W. 867 | Tex. App. | 1909
Lead Opinion
We are asked to postpone the submission of this case, in the event we refuse to sustain the motion to strike out the brief of the appellants, in order that the counsel for appellee may have time to prepare and file his brief. We do not think this request should be granted, for the reason that postponements interfere with the orderly disposition of the cases on the docket of this court, and frequently result in delays in the submission of other cases which the parties are anxious to have determined, and where proper diligence has been exercised to that end. When attorneys, or parties to suits, waive their rights as to the filing of briefs in the lower court, it is within their power in every instance to safeguard their rights by proper terms of agreement. To make the consequence of their failure to do this a ground for postponing the submission of cases would open an avenue to a system of practice which we do not think should receive the sanction of this court.
The motion is overruled. *191
Addendum
On March 24, 1903, the appellee, T. N. Zachry, filed suit against W. B. Willis, former treasurer of Morris County, as principal, and the appellants as sureties on his official bond. The petition alleges that Zachry was the then duly elected and acting treasurer of Morris County, and that he prosecuted this suit in that capacity for the use and benefit of Morris County. It sought to recover of Willis and his bondsmen the sum of $830.60 alleged to be a part of the school fund belonging to the county, which came into the hands of Willis while he was the treasurer, and for which he had failed to account in making his final settlement. This petition was signed "T. N. Zachry for himself." On the 7th day of April of the same year, and before any answer appears to have been filed, an amended original petition was filed by Zachry through his attorney, in which he makes the same allegations as to his capacity and the purpose for which the suit was instituted, and makes substantially the following as the statement of his cause of action: That Willis was elected treasurer of Morris County in November, 1898, and on the 15th of the same month executed a bond with the appellants as his sureties, and took the oath of office as prescribed by the Constitution and law; that among the various conditions of the bond was that "The said Willis as such treasurer shall faithfully perform and discharge all the duties required of him by law as county treasurer, and shall pay over all money that shall come into his hands during the term of his office; a copy of which said bond is hereto attached, marked 'Exhibit A,' and made a part of this petition;" that Willis' term of office expired on the _____ day of November, 1900; that during his incumbency large sums of money which belonged to Morris County, known and designated as the "county school fund," came into his possession as such treasurer, and it became his duty to account to Morris County for the money in his final settlement, or to pay it out according to law. It is further represented that the fund collected and received by Willis was money that had been apportioned and set apart to the county of Morris by the State of Texas from the public school fund, and some of it was interest which became due and payable on the indebtedness due to Morris County for its school lands which had theretofore been sold by said county; that at the expiration of Willis' term of office it became his duty to make an official settlement and to account for all the aforesaid funds which he had received and collected which he had not paid out in the manner directed by law, and to pay the same over to the plaintiff as his successor; that Willis never accounted for or paid over to the plaintiff as treasurer the funds which went into his possession as aforesaid, nor did he pay it out according to law, but still retained in his possession the sum of $830.60, which sum he had converted to his own use and benefit; that by reason of the failure of Willis to pay out said money as it came into his hands as treasurer, and by failing and refusing to pay over the same to the plaintiff Zachry, his successor, as required by law, he breached the condition of his bond, and he and his sureties thereby became liable to Morris County for the *192 said sum of money. The petition asks for judgment in favor of the plaintiff in his capacity as treasurer aforesaid, for the use and benefit of Morris County, against Willis and his sureties for the amount sued for.
The bond marked "Exhibit A" and referred to in the petition has the following condition: "Now, therefore, if the said W. B. Willis shall faithfully perform and discharge all the duties required of him by law as treasurer aforesaid, and shall pay over all moneys that may come into his hands during the term of his office, then this obligation to be void; otherwise, to remain in full force and effect."
Willis and his bondsmen answered by a general demurrer and a special exception, charging that the petition showed no authority upon the part of Zachry from the Commissioners' Court of Morris County to bring this suit, and that the suit should be abated and dismissed because the plaintiff showed no authority in law to prosecute it. They also pleaded general denial, and specially pleaded the statute of limitation of four years.
On September 29, 1906, a second amended original petition was filed, containing substantially the same averments embodied in the first amended original petition. The same amount was claimed, and reference again made to a bond alleged to be attached to the petition and marked "Exhibit A" referred to and made a part of the pleading. However, the record shows no such exhibit attached. It was further alleged that the plaintiff had recently discovered that Willis while treasurer had paid out the funds for which this suit was instituted to one Will Lewis, upon vouchers signed by the county judge, for school furniture and supplies of various kinds for schoolhouses; that the payments so made were without authority of law, and that by reason of that fact Lewis had unlawfully received the money. It sought to make Lewis a party to the suit, and asked a recovery against him. The petition further alleged authority from the Commissioners' Court of Morris County to institute this suit, and refers to an order to that effect designated as "Exhibit B" made a part of the petition. The record, however, does not show any such order attached.
The court sustained the general demurrer of the defendant below, and dismissed the case. Later, upon application, that judgment was set aside and a new trial granted. In the motion for a new trial it is alleged that by mistake of the attorneys who first instituted the suit the wrong bond had been attached to the petition as an exhibit; and at that time the bond which was required by law of the county treasurer for the security of the school fund could not be found; that the appellants as sureties had signed both bonds. They attached as an exhibit to the motion the bond purported to be signed by Willis, with the appellants as his sureties, conditioned as required by law for the safe-keeping and faithful disbursement of the school funds which might come into his hands as treasurer.
Plaintiff also filed a supplemental petition setting up the mistake in attaching the wrong bond as an exhibit to the previous pleadings and the facts referred to as having been embodied in the motion for a new trial, and alleging that he now attaches to and makes a part of his petition the bond executed by Willis for the safe-keeping of *193 the school funds that came into his hands while treasurer. To this supplemental petition the defendants below answered by a general demurrer, a general denial, and further alleging that more than four years had elapsed since the misapplication of the funds complained of, and since the final report of Willis as treasurer of Morris County had been made.
The cause was tried on March 14, 1908, and a judgment rendered against Willis and his bondsmen for the sum of $614.28, from which this appeal is prosecuted by the bondsmen alone.
The sole question we are here called upon to consider is, do the pleadings authorize the judgment? The wrong complained of in the petition of the plaintiff is the misappropriation and conversion by Willis, while treasurer, of a part of the available school fund which had been apportioned to Morris County. The suit is to recover from Willis and the appellants the sum. In order to state a cause of action against the appellants for the defalcation of Willis, as to this particular fund, it should be alleged that they were sureties upon the bond given for the protection of this fund. The statute requires the county treasurer, before entering upon the duties of his office, to execute two bonds; one for the security of the funds of the county, and the other for the security of the available school fund apportioned to the schools of the county and of which he may have the custody. Articles 920, 921, of the Revised Civil Statutes; Kempner v. Galveston County,
In stating the cause of action, the plaintiff alleges the election and qualification of Willis by his taking the oath of office and "executing *194
the bond required by law, with defendants (naming appellants) as sureties on said bond." In further describing the bond, and the only place where this is attempted, it is alleged that "among the various conditions of said bond was one that the said W. B. Willis, as such county treasurer, would faithfully perform and discharge all of the duties required of him by law, as such treasurer aforesaid, and shall pay over all money that shall come into his hands during his term of office; a copy of said bond is attached hereto, marked 'Exhibit A,' and made a part of this petition." The record shows that substantially the same allegations were in the first amended original petition, and that a copy of the bond conditioned as required for the protection of the funds of the county and signed by Willis and appellants, was attached as an exhibit to that petition. But the record fails to show that the pleadings here under consideration, the second amended original petition, had an exhibit of any sort attached. Under our system of pleading bonds and other instruments forming the whole or a part of the cause of action may be made a part of the pleadings by copies, or the originals, being attached and referred to as such, in explanation of the allegations of the petition, but will not relieve the pleader of the duty of making proper allegations of which the exhibits may be, in whole or in part, the evidence. Rule 19, District and County Courts,
It is true that the motion filed by the appellee for a new trial after the dismissal of its suit in 1906, which motion is copied in the transcript, alleges that it was the intention of the plaintiff in the case to sue on the bond given for the security of the available school fund; that the reason of the fact that this particular bond could not be found at the time suit was filed, and through a mistake of the attorney preparing the pleadings, a copy of the wrong bond was attached *195 as an exhibit to the petition. The motion also contains as an exhibit a copy of a bond conditioned as required by law for the safety of the school fund, and prays that plaintiff be allowed to amend his pleadings. If there was any amendment of the pleadings the record does not show it. There is among the pleadings what is termed a second supplemental petition, filed at a subsequent term of the court, which appears to be a replication to the answer of the appellants, which again sets out the mistake and its causes, substantially as stated in the motion for a new trial, avers that the proper bond is then attached to the petition, and states that this is the bond upon which the plaintiff has declared. The mere statement in a supplemental pleading that the pleader intended to, or did in fact, declare upon a certain instrument, is but the conclusion of the pleader, and adds nothing to the sufficiency of the pleadings. Assuming that appellee had substituted one bond for the other and without amending the averments of his petition, when these clearly referred to the instrument removed, this would not under our practice constitute a proper amendment of the pleadings. But even this is not shown by the record to have been done.
While we think the defects of the petition which have been discussed are sufficient to justify reversing and dismissing this cause, there are other features which should probably be noticed in view of possible future litigation that may follow. We are not prepared to hold that an action on the proper bond to recover any portion of the available school fund can be maintained in the name of another "for the use and benefit of the county." In the case of Jernigan v. Finley,
The petition in this case does not allege the amount of the bond sued on. This amount is required to be fixed by the county judge on his estimate of the available school money that may be placed in the hands of the treasurer. The court can not judicially know the sum specified by the county judge, nor whether this estimate was followed in making the bond. It may or it may not have been for a sum sufficient to be within the jurisdiction of the trial court, or to cover the amount sued for. It should affirmatively appear from the allegations of the petition that the court has jurisdiction of the suit.
We do not undertake to decide whether limitation would run against an action to recover a portion of the available school fund when properly brought.
The judgment of the court is reversed and the cause dismissed.
Reversed and dismissed.