*1 demurrer, the' insurer against. general deny that estopped to now ought to be any infectious free from Blain was W. A. he the time when contagious disease at injuries, he was at such or that sustained meaning of its employee time an within Southern contract of insurance. 476; Morgan, Tex.Civ.App., 299 S.W. Co. v. 200; Id., Tex.Com.App., 12 Southern S.W.2d Tex.Civ.App., Jones, Underwriters v. dismissed, cor- judgment error S.W.2d rected. opinion that the Because we are of the appellee’s sustaining trial court erred in demurrer, dismissing
general judgment reversed and the cause suit is proceedings con-
is remanded for further opinion. sistent with this TIREY, J., part in took no the considera- disposition of this
tion and case. George Tomball, L. and Les- Settegast,
ter Houston, appel- both of lants. Dan Jackson, Atty., W. Dist. Conrad J. Landram, Atty., Asst. Dist. Knipp, Lewis & Knipp, Houston, Ernest A. all of appellee. COUNTY. al. HARRIS SETTEGAST et No. MONTEITH, Chief Justice. Appeals Texas. Galveston. of Civil appeal This is an from a Feb. by appel- consolidation of two suits filed Rehearing Denied Feb. lee, County, Harris one the estate of Mrs. Settegast, the sureties on the bonds of Charl- ton, deceased, treas- urers to recover certain compensations fees to them as treasurers of Harris for the ac- drainage districts in Har- count of certain by the Houston-Harris ris County Ship Navigation Channel Dis- trict, called the hereinafter District, during the of 1936. calendar involved the Both actions construction of Constitution Texas, Ann.St., of the State of Vernon’s commonly “salary known amend- ment”, Bill 5 of and Senate No. the Second Legislature Session of 44th Called Texas, commonly known “the
bill”, arts. Vernon’s Ann.Civ.St. 3896- 3912e. a trial the court -In before appellee, rendered in favor *2 against appellants the them. This and District for services rendered and brought by re- County suit was to Harris on said bonds. cover the paid the items to the treasurer county 1936, 1, January the Prior to Navigation Districts Dis- County in ad- treasurer of Harris received year tricts during the 1936. handling compensation paid dition to funds, upon all county of one-fourth 1% controlling question presented in The received, one-eighth of of and whether, 1% appeal under Section moneys paid out him for the account constitution, the of Article 16 the and of County. of Harris drainage the districts of provisions Chapter 465, of C.S. Acts 2d compensation He fixed also the received Legislature, making 44th effective such Dis- Navigation the commissioners of the provisions, constitutional trict. County was of the of Harris treasurer salary $3,600 August of the electorate limited to the maximum On 465, Chapter “Salary provided Amendment” and whether adopted the in said Texas Constitution, 61 of Section this was the amount which could to the State maximum county 16, required lawfully paid that all be as treasurer to him population County having in counties a Harris for the 1936. officers 20,000 more, last according or to the then 16, parts Article Section The material census, be com- preceding should Federal 61, of the of the of Tex- Constitution State n salary to pensated on basis. Pursuant a as, read: Legislature provision the that constitutional “All State Texas officersin the 465, Chapter Leg., 2d C. Acts 44th enacted having county in counties officers S., provisions of the Act be- The 20,000 more, according population a 1, January came effective Census, preceding the then last Federal Charlton treasurer was day January first shall thereafter, until his County January subsequent to the first daugh- year. His July 19 death on Special Legisla- Regular or of the Session appointed ter, was Resolution, adoption ture him. She assumed treasurer to succeed * * * salary compensated on basis. be a office, un- and finished the of the duties district, county “All fees earned term, expired ran to the coun- precinct ty treasury paid officers shall be into right the treas- involves This suit for the account where earned re- on funds retain the commission urer to * * * fund, provided proper of the paid for the various Drain- out ceived and compensated where officer is Ar- under age Districts of may fees be wholly basis such on fee a was enacted in ticle paid into the officer or tained Naviga- compensation paid him the county treasury Commis- Ar- provisions tion District All Notaries sioners’ Court direct. R.C.S., and which enacted ticle weigh- Public, surveyors public in 1925. compensated a ers shall continue com- collected all basis.” fee Drainage District funds on the missions that the constitutional will be observed compensation paid by the and received things: provides provision very plainly up to the time of his Navigation District com- (1) shall be That all widow, independent execu- His death. salary alone, upon pensated basis estate, remaining trix by county officers (2) fees earned that all but had not been which had accrued county treasury for into shall be death, Mrs. Sette- him. After his fund. account appropriated to her use gast received Acts paragraph first The theory compensation on the fees said C.S., 1774, Legislature, 2d Vernon’s 44th authority given the Commissioners’ 3912e, 19, “Pro- reads: art. Ann.Civ.St. § “Salary Bill” to fix the treas- apply of this Section visions merely prescribed the amount salary urer’s Tex- State of control each be allowed population having in excess of one and that handling funds ninety (190,000) thousand in- precluded the reten- hundred applied to nor neither habitants, according preceding the last compensation received from by him of tion Census.” Federal Drainage Districts expenses had when the of each office undisputed that It is 190,000 inhabi- collected the officer are insufficient population in excess census, pay Federal the claims. the last according to tants paid of- compensations to be therefore the pro- (n) Section 19 of said *3 by 19 said Section controlled ficers are district, county vides that: “Each Salary Bill. the precinct keep detailed officer shall a correct by the statement him 19 contains amounts earned (i) of Section all Subsection fees, provision: “The Commissioners’ of sums his hands as coming into following costs, commissions, by provi- county the in a be of each affected book to Court Section, regular provided at its first by for him the authori- sions of year, January each calendar meeting county purpose ties the that in which for determine, by may made and entered order the officer time when fees or at the fees, court, all minutes of the said are earned or hands in costs, compensation, shall come into his etc., salaries, expenses, may shall enter the same in such form as Section, paid provided shall be for in this lawfully required.” be general the fund and drawn from into (0) Subsection of said fixes Section 19 county; 'in event reference such which each year provision the fiscal and makes for salary fund shall be in this reports. provides annual that all officers interpreted to be ‘General read as and salary compensa- an receiving annual Fund’.” shall, their tion services on or before for sec- Pursuant to the authorization of this month, day the 5th of each file with the statute, tion of the the commissioners’ county prescribed on auditor forms a de- en- of Harris report fees, tailed itemized of all com- providing fees and an order that all tered compensations by missions and collected compensations by the dis- collected month, during the preceding him and shall into, county trict and should be officers pay salary forthwith into the officers’ fund expenses paid out should be their office, fees, for commissions of, general fund. the compensations by during collected him said (e) 19 reads: Subsection of said Section month. county Commissioners’ “The each pro- (p) of said Subsection Section 19 annually salary to shall determine the be district, precinct county that no vides or Treasurer at a reason- shall, penalties pro- officer under the now Thousand, able sum not to exceed Three law, costs, by any vided waive fees or per an- ($3,600.00) Six Hundred Dollars duty but that it shall be the of all officers ** num and collect all fees and to assess commis- its Pursuant authorization under they permitted sions are or directed statute, the commissioners’ section of the per- or services by law assess collect for February court of Harris any formed where officer salary fixing an order entered payable salary salary receives a from the year for at Treasurer fees, com- created for such fund officer $3,600 per annum. compensation missions and other received capacity by him in his shall be requires (j) of Section 19 Subsection said deposited paid monthly or oftener him that each officer shall continue officer, salary created for such into fund salary charge for the benefit of officers’ accompanied remittance shall be and such all fees and commissions fund of office now, report by his official thereof. be, may he or hereafter au- charge and collect" from thorized pro- (q) of said Section 19 Subsection performed of Texas for services State reports of said that the annual vides proceedings and to file claims him civil fees, commis- show amount of all shall due for services for fees or commissions compensations whatever earned sions and provided law. year fiscal during said officers fees, and com- amount of commissions pro- (k) of said Section 19 pensations during him collected the fiscal salary receiving no officer shall vides that disposal, year their and that it shall compensation from receive ex-officio attorney duty of the criminal be the county, and directs that the commis- proceedings collection to institute gen- from the sioners’ court shall transfer fees, compensa- commissions necessary of such eral fund tions, declared to be the all of are legally salaries and other authorized pay compensations deposit- and Mrs. property of and shall be Settegast general treasurers ed in the fund. 1936 were limited to maximum it made the Under said Article 8148 provided 'Chapter in said duty of the $3,600. the funds of said to receive and disburse Appellants specifically in both cases Districts, and under pled here contend items duty receive 8221 was made volved, which were more than two Navigation District funds. disburse the years prior to the date filing in either of said provision There is no suits, 2-year were barred may re- that the treasurer articles of limitation. tain either *4 commissions original Both of the were filed on suits Districts, per- his against appellants, October includ- there is in property, nothing sonal ing the-sureties on the bonds of James n Charlton and Mrs. Mamie func- indicates that either which article The Settegast. in treasurer the service appellee’s tions of petitions, items in listed amount- imposed by agencies were of these ing $1,640.38, undisputed. two to the sum of are separate distinct of an office They period virtue were collected over extend- a County Treasurer. 1, the office of the part ing from to the latter think, were, They additional duties we January, of 1937. the sum Of amount county treasurer of Harris quired of the by was collected $600 James legislature' under the rule County by the prior death; to his sum of was $349.31 may require public legislature widow, collected Mrs. perform to additional duties not independent executrix of his estate. performed by duties consistent with the No was said executrix bond executed them. County. in The favor of was collected Mamie Sette- $661.07 gast has, presented question here we The Clay as treasurer. W. and Mrs. Supreme think, by our decided been Settegast were sureties on James County, Galveston in the case of Nichols v. Charlton’s official bond as treasurer. SO, In 547. 111 Tex. 228 S.W. Nichols question col upon This identical as to all sums case, the relied statute assessor exception lected 'with the sum payment specifically authorized the $349.31, by the es executrix of the compensation. The him of ex-officio to tate of has been he claimed under which additional James Supreme contrary our decided -Court the assessment of certain in the case of part contention Throck drainage taxes was a the statute Thompson, morton v. 131 Tex. appellants herein claim com- 1105. The court paid 115 S.W.2d Drainage District on missions county’s suit case held that court held treasurer. The that the and her re bondsmen to county treasurer required to account for the was assessor of commissions cover the amount paid by the “compensation” commissioners’ allowed orders of the excess with the assessment in connection court court on writ commissioners’ suit drainage the “commissions” “a taxes instrument”, 4-year and independent ten and that the school on assessment ap 2-year statute of limitations not district taxes. cited plied. court the cases Mc The strengthened, in the in- holding This Robinson, v. 84 Tex. Kinney et al. case, by (s) the fact stant 699; Charlton et al. v. Harris 19 S.W. exempts expressly Nota- of said Section 19 Tex.Civ.App., 969, af 228 S.W. Public, public weighers sur- ries 459; Tex. firmed 111 243 S.W. provisions of veyors from the said Section Gallagher, 103 Tex. 128 Hillman v. except the office It does not therefrom S.W. 899. county treasurer. applies, facts, 2-year statute limitation above we think that both The Under think, respect liability amendment and the we with legis- constitutional Settegast definitely Clay and act under consideration lative W. J. Charlton’s bond to 'specifically limited amount sureties on James $349.31, the sum of since it extent of salary which could be years prior assistants, more than treasurer and and that the was collected Davis defaults prior suits. these occurred date filing of Jeff Tex.Civ.App., 192 S.W. Davis, became effective or which oc defaults County v. County, Tex. Civ. curred expiration after the of the term 291; Liberty v. Steusoff covered the bond. Aetna & App., 34 S.W.2d Surety State, Co. Tex.Civ.App., 86 S.W. must the sum $349.31 follows ; 578, 579; 2d 826 Tex.Jur., pp. Ogles sum in the deducted from by’s State, Sureties v. 73 Tex. 11 S.W. court the trial of $949.31 873; Simons v. Tex. Jackson Mamie Sette- Clay and against W. J. bond the official as sureties gast authorities, this Under Allowing above Charlton, deceased. Charlton’s terms en- of office as treasurer of County is credit, find we Harris County automatically expired at recover titled his death and the were his bond $600, instead sureties, only the sum of only sureties, then pay- liable as such trial by the as rendered the sum $949.31 ments unlawfully received and withheld court. by him prior while such inis trial The death and not thereafter. respects affirmed. all other original opinion, In our we overlooked affirmed. Reformed *5 the fact by money that the collected Rehearing. for Motions On Charlton, Lucy executrix, Mrs. after as that we held opinion original In our death, Charlton’s amounting to the James applied limitations $349.31, judg- sum of were included in the Clay liability of W. respect to (cid:127)with J. against ment rendered the trial court sureties on Settegast, as Mamie Mrs. and representa- the heirs at and legal law bond, pay- for Charlton’s tives Lucy Charlton Mrs. James ments James his estate executrix made to Charlton, deceased. error. were in we In this death. his after heirs, While the legal devisees thorough considera After a more representatives of Charlton and Mrs. James appeal, we in this involved cases tion conclude Charlton, deceased, Lucy unquestion were record, said that, ably liable to Harris for sums be not liable were sureties longing which were unlaw any payments bond, for on said sureties as fully Lucy Mrs. after Charlton after Lucy Charlton made to James Charlton’s death and retained James death. Charlton’s protected was not original statement In a Charlton’s officialbond or James written instrument by appellee, unchallenged is brief against such collec payments stated is James two-year limita tions and the statute of navigation salary from Charlton’s 1925) (Article subd. tions R.S. July until provides that all for debt actions 1936,amounting July his death not where the indebtedness is evidenced by him recéived not were sum $349.31 writing, by a be com contract shall re- they were lifetime, but during prosecuted menced years within two execu- Lucy as by Mrs. ceived the cause of action shall after have accrued more estate, death and trix of thereafter, applies and not col as these filing of years before than two lections, County’s action appeal. in this involved suits them is barred extent of the said R.S. under the Under admitted facts. $349.31 condi- required give bond State, is Surety & Aetna Co. v. * * “* shall Tex.Civ.App., such treasurer S.W.2d tioned office duties of his faithfully execute judgment It follows of the trial law according to pay over court and of court must be reformed his hands as come into provide judgment as to that the former so in the sum of bond of The official treasurer”. James Clay W. $949.31 respects with the complied in all Settegast, as statute. the bond elementary against Mrs. Mrs. Alice that bonds are George Charlton, surety L. heirs and that a bond Woodruff strictly construed public not cover and of the estates of official does devisees given Charlton, de- Charlton ceased, by the sum $349.31 be reduced recovery against provide for a so to' in favor them devisees, executrices heirs, sureties, $600, and as executor, only the sum trial judgment thus reformed is affirmed. court for Wherefore, appellants’ motion former this court’s granted, hearing will be aside, set affirmed reformed the trial accordance with Appellee’s opinion. refused. rehearing will
motion for GRAVES, (dissenting). Justice two- that the holdings I dissent item, applied to $349.31 year statute controlled too, it, have been believing instead, in four-year statute by the appellee— respects as contended Dallas, Johnson, Leland M. Lem rehearing. original and both on Wray, Waxahachie, appellant. Hamilton, Lipscomb, Swift, Wood & Dallas, and Lynn Forrester Hancock and Griffith, Waxahachie, B. appel- both
lees. RICE, Chief Justice. suit This instituted H. Walston J. in the Texas, Court of Ellis PRICE al. et WALSTON v. others, E. Price seeking fore- J. No. alleged closure of an lien created in favor of plaintiff by Appeals proper virtue of the Waco. filing and' Texas. Civil recording of money judg- an abstract of a 26, 1942. Feb. plain- ment theretofore rendered in favor of Price, tiff the defendant acquired latter, certain real estate filing judgment, said abstract conveyed remaining Price de- judgment, fendants. From an adverse plaintiff appeals. recovery, plaintiff As the basis of his pleaded April 1922,in that on Cause No. n 10,654, styled Lowry George Italy M. Company,the District Motor County, Court of Ellis Texas, money $1,303.99,together in the sum of with suit, against terest and costs Price E. J. and in Yarbrough, favor N. V. H. Wal- J. Italy Company, part- ston and the Motor composed Yarbrough nership solely of N. V. admitted, H. Walston. deciding, alleged
without so that the facts by plaintiff judg- as to the rendition of the ment, fied, full effect and unsatis- that it was in issuance, filing, indexing records of El- recording and lis judgment, abstract of such of an