Leach v. Wilson County, Case No. 1585

Case No. 1585 | Tex. | Nov 7, 1884

Watts, J. Com. App.

A good cause of action was asserted by the petition, and the court erred in sustaining the exceptions and dismissing the case. The indebtedness of Wilson county to Maverick & Kroeger is sufficiently stated. Also that the claim was allowed and audited by the county court in May, 1872, and a warrant issued by virtue thereof, and that the same was assigned to appellant by Maverick & Kroeger for a valuable consideration. It is also alleged that appellant caused the same to be registered January 19, 1880, and that on the 28th day of June, A. D. 1881, the county court made and entered an order directing the county treasurer not to pay the same, etc., and this suit was instituted November 16, 1881.

It seems that the court below sustained the exceptions on the ground that the cause of action as asserted was barred by limitation.

The statute now in force, and which has been the same since May 11, 1846, provides that “ no county shall be sued, unless the claim upon which such suit is founded shall have first been presented to-the county court for allowance, and such court shall have neglected or refused to audit and allow the same.” P. D., art. 1045; R. S., art. 677.

When a claim has been presented and allowed, and a warrant upon the treasurer has been drawn in accordance with the order of allowance, while the order of the county is the primary evidence of the right, yet the warrant is something more than a mere voucher; it is prima facie evidence of an existing and matured debt, which throws the burden upon the county to repel by showing the want of consideration or some other valid defense. Burroughs on Public Securities, p. 638 and authorities, note 2.

However, the real question is this: Was the claim, as asserted in the petition, barred by the statute of limitations at the time the suit was brought? The correct solution of that question depends; upon the time when the cause of action accrued. Limitation can never operate against a right or claim until a cause of action has accrued. Under the provisions of the statute, no cause of action would exist against the county on an allowed claim until the claim has been in some way repudiated by the county court.

These warrants are, as has been seen, prima facie evidence of a subsisting and matured debt; nevertheless, by reason of our statutory provisions respecting suits against counties, they occupy an anomalous position — they afford no right of action until the county has in some way or other denounced or repudiated the claim.

From the allegations in the petition it appears that the claim was recognized by the county authorities until the order of the county -court made June 28, 1881. In January, 1880, the warrant was presented to the treasurer of the county for registration under the then existing statute, and was then duly registered as an existing -claim against the county. True, the registration of the warrant by the treasurer would not estop the county from asserting the invalidity of the claim. Parker County v. Couts & Co., 2 Tex. L. Rev., 9. nevertheless it is evidence tending to show that it was still recognized as an existing claim.

[Opinion adopted November 7, 1884.]

As presented by the petition the cause of action did not accrue until June 28, 1881, and, therefore, limitation did not begin to run until that time.

It might be that if the county court should call in outstanding warrants for payment, that, after a reasonable time allowed for their presentation, limitation would run. But the decision of that question is not necessary to the disposition of this appeal.

Such a claim as that sued on in this case is not negotiable; still it is the subject of assignment. R. S., art. 266.

Our conclusion is that the judgment ought to be reversed and the cause remanded.

Reversed and remanded.