This is аn áppeál from an order overruling a plea of privilege filed by George B. Parr, asserting his right to be sued in Duval County, Texas, the county of his residence.
The suit was instituted in the District Court of Jim Wells County -by Sam H. Burris, District Attorney, on the relation of Duval County and others, against George B. Parr аnd Texas State Bank of Alice, a corporation, having a domicile in' Jim Wells County. Venue is attempted to be fixed in the county оf suit under Subdivision 4, 7, 9 or 29a, of Art. 1995, Vernon’s Ann. Civ.Stats. The plea of privilege was controverted on August 2, 1955, and a copy of the controverting рlea, together with the court’s notation thereon setting the matter for a hearing, was mailed to the attorney for the defendant Parr by United States certified mail on the same date. The copy and notation was received by the attorney for Parr on August 4, 1955.
Aрpellant contends that the delivery of the copy of the- controverting plea and the judge’s notation thereon, by certified mail, does not meet the requirements of the provisions of Rule 87, Texas Rules of Civil Procedure, because the copy аnd notation were not sent by registered mail. The record shows that there is a difference between certified mail and registerеd mail. How
Appellant contends that there is no evidence, and in any event insufficient evidence, to show venuе in Jim Wells County, under Subdivisions 4, 7, 9 or 29a of Article 1995, Vernon’s Ann.Civ.Stats., which were the subdivisions of the venue statute pleaded by appellees. The еvidence is sufficient to show a cause of action against the Texas State Bank of Alice, Texas, a defendant having its domicile in Jim Wells County. Stockyards National Bank v. Maples,
The Texas State Bank of Alice was the County Depository of Duval County during the years 1946 and 1947, and as such had on deposit many funds belonging to Duval County. The record shows that the following transactions took place in thе Texas State Bank of Alice. On January 13, 1947, $60,000 was withdrawn from the account of “Duval County Interest and Sinking Fund”, $45,000, from “Duval County Road Bond Series 1941 Sinking Fund”, $30,000, from “Duval Cоunty Special Road District No. 1 Fund”, and $45,000,' from “Duval County Road Bond Series 1944 Sinking Fund.” These debits of the various sinking and special road district funds totaled $180,000. On that same day $180,000 was deposited or-credited to-the account of “Duval County Road and Bridge Special Fund.” On January 14, 1947; • there wеre ' withdrawals of $10,500 and $162,000 out of that special fund. On January 14, 1947, the said sums were deposited to the account of George B. Parr, giving the sоurce- of same as “County of Duval.” On July 28, 1947, George B. Parr paid his income tax with a check of $181,319,81, drawn on his account aforesaid, in the defendant bank. During all this time the appellant, .George B. Parr, was a stockholder, director and president of the defendant bank. Appellee called to the witness stand, as adverse parties, Givens A. Parr; active vice-president of the bank,- B. F.-Donald,. Jr., сashier of the bank, Miss Jewel Mayfield, assistant cashier of the bank, Mrs. Mildred Daniel, who worked with the Recordak machine, Sometimes referred to as the microfilm machine. All of these persons were with the bank during the years. 1946 and 1947, but none of them had any recollection of just how or why these funds were transferred from one account to another and ultimately paid out by the president of the bank, George B. Parr, to the Collector of Internal Revenue. The bank kept microfilm records of its daily business, but a number of these reсords, which might have shed some light on these transactions, were missing. A search was made at the court house of Duval County for. canсelled checks which might have had a bearing upon these transactions, but none were found. A further search was made at the First Stаte Bank of Alice, which had purchased much of the property of the Texas State Bank; but no statements or cancelled checks were found that had any bearing upon these transactions. The bookkeeper of the Texas State Bank testifiеd that sometimes funds were transferred from one account to another by means of credit and debit slips, and that these'funds could hаve been transferred in this manner without -there being any cancelled checks.-'
■ The unexplained evidence shows a diversion of funds from sinking fund accounts and special road district accounts to the road and bridge special fund, and - from there to the personal .аccount of George B. Parr, who was a stockholder, director and president of the Texas State Bank. Under
Art. 94, Texas Penal Code, makes the borrowing, withholding or diverting of these funds a penal offense. It is also unlawful to transfer funds from one constitutional fund to another by the Commissioners’ Court. Commissioners’ Court of Henderson County v. Burke, Tex.Civ.App.,
In New Amsterdam Casualty Company v. First National Bank of Gilmer, Tex.Civ.App.,
“If a county depository pay an unauthorized demand out of public money of a county, the money is not withdrawn from the depository, but is still a credit in favor of the county. State v. Tyler County State Bank, Tex.Com.App.,277 S.W. 625 ,42 A.L.R. 1347 , Id.,282 S.W. 211 ,45 A.L.R. 1483 ; Watson v. El Paso County, Tex.Civ.App.,202 S.W. 126 , 128; City of El Paso v. Two Republics Life Ins. Co., Tex.Civ.App.,278 S.W. 231 , 235, writ refused; Reynolds v. State,130 Tex.Cr.R. 78 ,92 S.W.2d 458 .”
See also, New York Casualty Co. v. State, Tex.Civ.App.,
The transfer of funds from the Duval County Interest and Sinking Fund, from the Road Bond Series 1941 Sinking Fund, and the Road Bond Series 1944 Sinking Fund, as shown by the evidence and unexplained in any way by the оfficers of the bank, was sufficient to make out a prima facie case against the Texas State Bank, the resident defendаnt.
The appellees having shown that the Texas State Bank of Alice was a resident of Jim Wells County, and having plead and sustained by а preponderance of the evidence a cause of action against the bank; and having alleged a joint cause of action against the resident and nonresident defendants, were entitled to maintain venue in Jim Wells County and the trial court did not еrr in overruling appellant’s plea of privilege.
The judgment is affirmed. Our original opinion, handed down on May 9, 1956, will be withdrawn and this opinion substituted for it.
Appellant’s motion for a rehearing is overruled.