218 S.W.2d 491 | Tex. App. | 1949
J. D. Mires brought this suit against Falls County for a balance claimed to be due him on his salary. The case was submitted to the court (non-jury) on an agreed statement of facts. The court entered judgment in behalf of plaintiff for $4000, as principal,
We quote the pertinent parts of the agreed statement of 'facts:
“1. That plaintiff J. D. Mires, is the duly elected, qualified and acting County Treasurer of Falls County, and has held said office, by successive elections and qualifications, since the 1st day of January, 1936. * * *
“5. * * * ‘January 13, 1936, recorded in Vol. 6, page 383: Motion made by A. L. Pittman, seconded by S. A. Davison and unanimously carried that the salaries of the respective officials known as fee officers under Art. 3912, as amended by the 44th Leg. [Vernon’s Ann. Civ. St. art. 3912e], shall receive as their compensation for the year 1936 the following salaries to-wit: (after listing others) County Treasurer $900.00 per annum.’
“6. That since January 1, 1936, the defendant Falls County has paid to the plaintiff as his only compensation as County Treasurer the following amounts: In the year 1936, $900.00; in 1937, $900.00; in 1938, $900.00; in 1939, $900.00; in 1940, $900.00; in 1941, $900.00; in 1942, $900.00; in 1943, $1020.00; in 1944, $1080.00; in 1945, $1080.00; in 1946, $1240.00, and in the first four months of 1947, $520.00; an aggregate of $11,240.00. That during the last eight months of 1947 and the first three months of 1948, plaintiff has been paid the sum of $1833.25.
“7. That on the 30th day of April, 1947, the Commissioners Court of Falls County in session passed the following order, which was then entered in the Minutes of said court, in Vol. 8, page 16, and duly signed by the County Judge:
“ ‘Motion made, seconded and passed fixing the County ■ Treasurer’s salary at the minimum amount as required by law, being the amount of $2000.00 per year. (It appearing that the Commissioners Court in setting the budget in 1946 had failed to set the salary of the Treasurer at the amount required, and declaring an emergency).’
⅜ ⅜ ⅜ ⅝ ⅝
“10. That on the 29th of September, 1947, the plaintiff tendered to the County Auditor for auditing a written claim for the sum of $11,426.64, besides interest at the legal rate on the arrearages of salary claimed from the times same should have been made; the principal claimed being the difference between the total payments made to plaintiff as set out in paragraph 6 above and the $2000.00 per year which he claimed he was entitled to since January 1, 1936, under the Salary Act of 1935, and being the claim upon which this suit is based. That the County Auditor considered that there was no function for him to perform in connection with said 'claim, and plaintiff’s attorney accordingly on said date- presented said claim directly to the Commissioners Court in legal session, and said claim was taken under advisement by the Court and so held until the 30th day of December, 1947, when the court entered and order rejecting said claim, following which this suit was filed. That the claim so presented to the Commissioners Court included the following statement:
“ ‘Under the rules of law relating to the application of payments claimant says that by operation of law all payments received on his compensation have been applied as made to the oldest arrearages in the order received but whether so applied by operation of law or not, claimant has and does elect to so apply such payments.’
* * ⅜ * * *
“12. It is agreed that defendant pleads limitation to all claims arising prior to two years before September 29, 1947.”
Falls County’s points Nos. 1, 2 and 3 assail the judgment entered substantially on the ground that the court erred in holding that all payments made to appellee by Falls County for two years prior to September 29, 1947 should be applied to ¡the oldest ar-rearages, leaving no credits on appellee’s compensation for two years prior to such date. We sustain this contention.
The stipulations in effect provide that the population of the county and receipts and disbursements of -the office of Treasurer were sufficient during the year of 1935 -to require the payment of a salary of $2000 per year to the Treasurer from and after January 1, 1936, under the provisions of the Generar'Officers Salary Act of 1935. The trial court held in effect that any order
Falls County has pleaded Article 5526, Vernon’s Ann.Civ.Stats., generally known as our two year statute of limitations. We think it is applicable here; and since it was pleaded, it is our duty to apply it, notwithstanding we think it works a hardship on plaintiff. Under our system of ' jurisprudence, all of us are charged with the knowledge of the statutory provisions of our law, and plaintiff Mires was charged, as a matter of law, that he was entitled to receive the sum of $2000 per year as County Treasurer when he took office on January 1, 1936. He also had actual knowledge of the fact that the Commissioners Court was paying him less salary than he was entitled to receive, beginning with his first monthly payment, and since he had knowledge of these facts, the foregoing statute of limitations began to operate against him at the time he received his first payment. Under the record here made, he made no legal attempt to toll this statute until he filed his claim on September 29, 1947. We are of the opinion that limitation began to run in favor of Falls County from the time such claim as the Treasurer had against it ma
But appellee contends that the court erred in not finding that the written order on the 30th day of April, 1947, by the Commissioners Court of Falls County was sufficient acknowledgment -of the justness of plaintiff’s claim to bring it within the terms of Art. 5539, Vernon’s Ann.Civ.Stats. The order referred to provided: “Motion made, seconded and passed fixing the County Treasurer’s salary at the minimum amount as required by law, being in.the amount of $2000.00 per year. (It appearing that the Commissioners Court in setting the budget in 1946 had failed to set the salary of the Treasurer as the amount required, and declaring an emergency).” Article 5539 aforesaid provides: ' “When an action may appear to be barred by a law of limitation, no acknowledgment of the justness of the claim made subsequent to the time it became due shall be admitted in evidence to take the case out of the operation of the law, unless such acknowledgment be in writing and signed by the party to be charged thereby.” Plaintiff contends in effect that the foregoing order of the,Commissioners Court was sufficient, under the above statute, to remove the bar of limitation of plaintiff’s claim beginning with the year 1936 and extending down to and including 1946. We cannot agree with this contention.- Our view is that the above order is not such an unequivocal acknowledgment of the indebtedness, or an unqualified promise to pay it, which will imply such an acknowledgment as contemplated by the foregoing statute. See cases collated in Metropolitan Casualty Ins. Co. v. Davis, Tex.Civ.App., 174 S.W.2d 84, page 85, points 1-4. The order under consideration is only an acknowledgment of the county’s obligation for the year 1947. Much has been written on the application of the above statute, and we think the leading cases have been collated in Metropolitan Casualty Ins. Co. v. Davis, supra.
Since plaintiff filed his claim on September 29, 1947, he has a right to go back for his unpaid salary for a period of two years, which would take him bade to September, 1945, and since monthly salaries for state and county officers are not paid until the end of the month, we hold that plaintiff is entitled to recover the unpaid portion of his salary for the month of September, 1945, with legal interest, and for each succeeding month thereafter. From the agreed statement of facts, we cannot calculate the exact amount of unpaid salary and interest that is now due and owing to the plaintiff Mires. Accordingly, the judgment of the trial court will be reversed and remanded with instructions to the trial court to compute the amount of unpaid salary due plaintiff Mires, beginning with the month of September, 1945, down to and including December, 1948, with legal interest from maturity of the payments, and enter judgment accordingly. Art. 5069 Vernon’s Ann.Civ. Stats.; Presidio County v. Walker, 29 Tex. Civ.App. 609, 69 S.W. 97, page 100, writ den.
Under the foregoing circumstances, we think it would be proper to charge the costs of this appeal against Falls County, and accordingly the costs of this appeal, as well as the costs incurred on this final order to be rendered by the trial court, shall be taxed against Falls County. See Rule 448, Texas Rules of Civil Procedure, and cases collated in Lone Star Gas Co. v. Childress, Tex.Civ.App, 187 S.W.2d 936, point 10.
The judgment of the trial court is reversed and remanded with instructions.
On Appellee’s Second Motion for Rehearing.
Appellee has tendered his second motion for rehearing, which we ¡have permitted him to file, and said motion in part avers that we erred in our former opinion in that we held that the data was insufficient to enable this court to calculate the amount of principal and interest due ap-pellee J. D. Mires under the judgment rendered by this court, and in this motion sets out that the sum due and owing J. D. Mires at the date the judgment was ren
Accordingly, that part of the judgment heretofore entered by this court on February 10, 1949, reversing and remanding the cause to the trial court to ascertain the amount due and owing appellee J. D. Mires under the judgment rendered by this court, is set aside, and judgment is here rendered in behalf of appellee J. D. Mires against Falls County for the sum of $1,373.78, being the amount due and owing J. D. Mires under this court’s judgment at the date judgment was entered in the trial court, and said Mires shall be allowed to have legal interest on said sum from the date judgment was rendered in t'he trial court.
Therefore, appellee’s motion is granted in the above respect, and in all other respects same is overruled.