52 Tex. 301 | Tex. | 1879
This is a suit brought by James M. Wiggins, as the administrator of the estate of F. M. Taylor, deceased, to recover of W. T. Long, as sheriff', and the sureties on his official bond, money alleged to have been collected by said sheriff under executions, which he failed to pay on demand. The statement of facts is quite meagre, and the assignment of errors is general, and does not point out specifically the errors complained of. The case was tried by the court below, a jury having been waived, and a judgment rendered for the plaintiff for the sum of $1,224.28. There is no error assigned as to the amount of the judgment, hut appellant assigns as error the judgment for the plaintiff. It is a well-established rule, that this court will not disturb the judgment of a lower court unless it is clearly apparent that the judgment was ren
The only exception made by defendants to the action of the court below, was to the ruling of the court on defendant’s motion for new trial. The affidavit of defendant Long, appended to the motion for new trial, did show that the account between himself and Taylor had been settled. But if a new
The plaintiff) in his original petition or motion, asks for damages on the amount claimed to be due at the rate of ten per cent, per month from' the date of the demand; and he asks this court to reform the judgment and award him damages at said rate. Under the former decisions of our court, we do not think the plaintiff entitled to recover the damages claimed. In the case of Scogins y. Perry, 46 Tex., 113, the court say: “Whilst the statute does not prescribe that the motion must be made at or before the term of court next following the demand, it may be questioned whether a party can, at his more option and without excuse for the delay, allow several terms of court to pass and then claim the heavily accumulated penalty. In providing a prompt remedy, it was scarcely contemplated that it should be used oppressively, or as a means of profit.” In that case but twenty months had elapsed after the demand before proceedings were instituted. In this case nearly six years had elapsed since the demand before this action was commenced. If the court decided correctly in the above case, and we are of the opinion that the ruling was correct, with how much greatér reason should we apply the rule here. The defendant Long in this case claims to have settled with Taylor, and while we must say there is not, in our opinion, evidence sufficient to sustain his defense,
It is insisted by appellant that no sufficient demand for the money was made on Sheriff Long before the institution of this suit to put Long in default and authorize the institution of the suit. We think that the demand was made. Witness Wiggins stated that he was the agent of Taylor, and that “ about the 1st of October, 1861, witness invited Mr. Long into the lumber-room of Wiggins & Martin, in the town of Rusk, and there stated to him that he had been instructed by Mr. Taylor to sue him upon bis official bond as sheriff, but that he preferred settling the matter otherwise, and asked him if he was ready to settle—presenting to him the accounts drawn up by II. S. bfewlaud, Taylor’s deputy clerk, containing a large number of cases decided in the District Court—the parties stated, the cases numbered, and the amount of clerk’s fees opposite to each case. These were called over one by one.”
Of this meeting and conversation Sheriff Long also testified, and stated that he promised to settle after his return from Huntsville and Larissa. It is admitted that the cases named in the suit were the ones written on the papers presented as above stated. When Wiggins asked that the claims be “set-tied” by Long, he surely meant that they should be paid. How else could they be “ settled ” than by making, payment ? Accounts are said to be sometimes “settled” by note, but unless a term to denote some other manner of settlement than settlement with cash" is used, it would, in the ordinary acceptation of that term, mean payment in money.. Then in this case w'e think a demand that the claims be settled without suit, would he construed to mean a demand of payment.
It being the opinion of the court that there is no apparent error in the judgment, it is affirmed.
Affirmed.
Chief Justice Moore and Associate Justice Bonner were disqualified and did not sit in this case. Hon. George W. Chilton was a member of the Special Court that decided the case.