Cordray v. State, Case No. 4333

Case No. 4333 | Tex. | Apr 29, 1881

Bonner, Associate Justice.

1. It is assigned as error that the two bonds should not have been declared upon in one and the same suit; the first being payable to the state of Texas, and the second to R. B. Hubbard, governor of the state of Texas, and his successors in office.

Evidently the bonds were both intended for the same general object; the penalty for the breach of both inured to the benefit of the state; and we do not think that it was error to have embraced them both in the same suit.

2. It is also assigned as error, that, in the first bond, the sureties had bound themselves separately, each for the sum only of $l,333.33-¡-, and that judgment should not have been rendered against them jointly for the full penalty of that bond, but only for the amount against each for which they had separately bound themselves.

This precise question was before the court at the last Austin term (1880), in the case of Crutchfield v. The State, on a similar bond, of date February 15, 1876, in which it was decided, Chief Justice Moore delivering an oral opinion, that the mere addition in figures of “$1,000,” opposite the name of each surety, and a similar recital in the subsequent affidavit accompanying that bond to the recital in the affidavit accompanying the one now before the court, would not restrict the express liability contained in the body of the bond itself; however necessary this may have been to advise the officers approving the bond of the solvency of the sureties.'

3. So much of the judgment of the court below as allowed interest on the two statements of account from January 1,1877 and 1878, respectively, is further assigned as error.

The previous laws upon the subject of the reports of the collectors of taxes to be made to the comptroller were changed by act approved August 21, 1876. 15th Leg., 259. Section 7 of that act provides that the collectors shall begin the collection of taxes on the first day of October.

Section 8 gives to parties who failed to meet them at the appointed times and places the privilege to call at their office and make payment at any time between the first day of July and the last day of February.

By section 13 of the act they are required, on and after June first, to make out and post at the court house and other public places in the county, their “lists of delinquent and insolvent tax-payers,” and which, upon proper certificate by the commissioner’s court, shall entitle them to a credit on final settlement with the comptroller. That law seems not to have provided at what time those lists should be returned to the comptroller’s office.

The fiscal years for 1876 and 1877 ended on the 31st day of August for such year, at which time the accounts of collectors were closed in the office of the comptroller, and the balance, if any, were shown against them, and when it would be reasonable to presume that they were wrongfully in default for such balance.

In the absence of testimony, as in this case, showing when the amount sued for actually came into the hands of the collector, or that he was in default before the end of the fiscal year, we are of opinion that this would be the date from which to charge interest against him, and riot the preceding 1st day of January, as was done by the judgment below.

There was error, therefore, in that judgment so far as interest was calculated upon the sum of $2,914.71 from January 1, 1877, instead of August 31, 1877, and upon the sum of $3,524.61 from January 1, 1878, instead of-August 31, 1878. The amount of this difference will be deducted from the gross sum of $7,925.13, adjudged against Oordray; and for the amount, as thus corrected, being less than the penal sum of both bonds added, judgment will be rendered against him and the other defendants as his sureties; the costs of this appeal, however, not to be taxed against .plaintiffs in error. Judgment below is reversed and reformed, in accordance with this opinion.

Reversed and rendered.

[Opinion delivered April 29, 1881.]