73 Tex. 658 | Tex. | 1889
At the general election held in November, 1884, T. L. Oglesby was elected sheriff of Maverick County, which office in that county imposed upon him the duties of collector of taxes as well as those ordinarily devolved upon a sheriff. He took the oath and gave the bonds required by law and his bonds were duly approved. He was re-elected in November, 1886, and again took the oath and executed bonds. His bond as tax collector was approved by the Commissioners Court and was forwarded to the Comptroller. He resigned in January, 1887, and the bond of his successor was finally approved by the Comptroller on the 3lst day of that month.
He was found to be in arrears to the State, and this suit was on the •4th of September, 1888, instituted by the State against him and the sureties upon both of his bonds as tax collector to recover the amount for „ which he had made default. Upon the hearing a judgment was rendered against Oglesby and the sureties on the first bond for $574.77, and also against him and the sureties on the second bond for the sum of $688.46. From this judgment the sureties on the second bond prosecute this appeal.
The appellants excepted to the petition upon the ground that its allegations did not distinctly show the liability of the sureties upon the second bond for the principal’s default. These exceptions were overruled by the court, and the ruling is assigned as error. The petition alleges the 'election of Oglesby for the two successive terms and the execution and approval of the two bonds, and makes the sureties upon each bond parties defendant. It is also alleged in effect that Oglesby had collected taxes due the State in excess of what he had paid over or accounted for amounting to the sum of $1104.39. An itemized account of his debits and credits was annexed to the petition, from which it appeared that the taxes with which he was charged were collectable during his first term of - office. The petition also contains this averment: “That as the account herein sued upon and hereto attached as an exhibit is for taxes for the year 1886 upon the tax rolls of 1886 it is impossible for plaintiff to say whether or not the money due plaintiff is due as money collected under
There is no privity between the sureties upon the first bond and those-on the second. Their obligations were separate and distinct, and the liability of those upon the one bond was in no sense dependent upon the liability of those upon the other. It is true that both sets of sureties-were not responsible for the same defalcation, and that from the very nature of the case what the one set was liable for the other was not. But, this fact d9es not establish any legal or equitable relation between the-sureties on the one obligation and those on the other, nor does it in a, suit to recover upon either or both relieve the State from the necessity of alleging unequivocally the facts which show the unconditional liability of the parties sought to be charged. To allege in a petition against A and B that A is liable if B is not, and that B is liable if A is not, does not-allege the unconditional liability of either. We know of no authority which tolerates such pleading in cases like the present. The petition was, defective and the demurrer should have been sustained.
In Screw men’s Benevolent Association v. Smith, 70 Texas, 168, it was-, held in effect that suits upon two successive bonds of the treasurer of a corporation could not be consolidated, for the reason that they could not properly be joined in one action. That case presented the same difficulty of determining which of two sets of sureties were responsible for the officer’s defalcation as appears in this and involves precisely the same principle. The misjoinder of the causes of action was, howrever, not made a ground of special exception by the appellants in this case.
It is also complained that the court erred in holding that the appellants were liable in any amount, because it was not shown that the bond-signed by them had ever been approved by the Comptroller. The facts in regard to that matter are that the bond was promptly executed after Oglesby’s second election and was approved by the Commissioners Court and forwarded to the Comptroller, by whom it was received in due time.. Upon receipt of the bond the Comptroller wrote to Oglesby acknowledging the receipt and stating that the bond was “good in all respects,” but-that he would not approve it because he appeared upon the books of the
Did the Comptroller approve the bond under consideration? We think ‘his letter to Oglesby showed that he did. His duty was to see that it was sufficient in form and amount, and that it was executed by the officer, with the proper number of good and sufficient sureties. He examined the bond, found it “good in all respects,” and retained it in his custody. We are of opinion that there his jurisdiction over the matter ceased. Section 20 of article 3 of the Constitution provides that “ no person who at any time may have been a collector of taxes * * * shall be eligible to * * * any office of trust or profit under the State government until he shall have obtained a discharge for the amount of such collections,” etc. We are however of opinion that it was not the function of the Comptroller to determine the question of Oglesby’s eligibility to his office, although the evidence may have been before him which showed that he had not obtained his discharge for the moneys collected by him. It was simply the Comptroller’s duty to pass upon the bond and if good to approve it and deposit it in his office. He found the bond good, and the evidence shows it was deposited in the office, where it was subse•quently endorsed “approved.” This was after Oglesby had adjusted his .account upon the Comptroller’s books, but also after he had resigned his office. This latter approval was too late to affect the liability of the sureties on the bond. But since in our opinion the bond was in fact approved in the first instance we think no subsequent approval was necessary. We conclude that the court did not err in holding that appellants were liable for any defalcation which occurred upon the bond during their principal’s second term of office.
At what time the money was misapplied is a fact to be determined by the ■evidence. If no direct evidence can be had then resort must be had to presumptions together with any circumstances which throw light upon the transactions. If the defalcation was not discovered until after ■Oglesby had entered upon his second term of office the presumption would be that it occurred during that term, and it would be incumbent ■upon appellants in order to absolve themselves from liability to show .either directly or by circumstances that it took place at an earlier period.
For the refusal of the court to sustain the demurrer to the petition the ■judgment is reversed and the cause remanded.
Reversed and remanded.
Delivered May 7, 1889.
