136 S.W. 255 | Tex. | 1911
Lead Opinion
delivered the opinion of the court.
This controversy arose out of differences between the county and defendant in error, Rogers, its former county clerk and his sureties, concerning the proper accounting for the receipts of his office. The suit was by the county to recover sums which it alleged defendant had received on several accounts and which it claimed he was bound to pay over. The final decision before us for review, which was rendered by the Court of Civil Appeals, established a balance in favor of the plaintiff in error of $2330.31, bearing six percent interest from December 6, 1906, for which judgment was rendered. In reaching this result the court allowed the defendant a credit of $5704.20 because of facts to be stated and this allowance is all that is brought in question by this writ of error.
While Rogers was clerk, he or his deputies collected large sums as fees charged for recording instruments, the amount of each fee having been fixed by an estimate and not by a count of the number of words. Proper account had been made to the county of the sums thus received and its portion thereof had been paid over. After he was sued in this ease on other accounts, Rogers caused an actual counting of the words in instruments recorded during his incumbency and ascertained that the amount that would have been properly due -for the work under the statute was less than that actually received by the amount of the credit stated above. He therefore asserted that he has paid over to the county monies to which neither himself nor
It is clear that he can make no such defense. As between himself and the county, the sums charged and received by him were the ones for which he was accountable and he is estopped to assert that they were illegally collected. This proposition is so well established that we need only refer to some of the authorities. Webb County v. Gonzales, 69 Texas, 457; Morris v. State, 47 Texas, 583; Mechem on Public Officers, 915.
The questions whether or not persons who paid the excessive fees could recover, them or the penalty, from him, and, if so, whether or not the county would be bound to refund to him, are not involved in this case. The money has been paid over properly and the county can not be required by him to return it, directly or indirectly, on the remote possibility that people may demand the return of the small sums paid by them.
The judgment of the Court of Civil Appeals will be reformed so as to include the sum deducted as a credit, making in all $8034.51, with six percent interest from December 6¿ 1906.
Reformed and rendered.
Filed March 8; 1911.
Rehearing
ON MOTION FOR REHEARING AND TO REFORM JUDGMENT.
delivered the opinion of the court.
Heretofore in this cause a writ of error was granted to the Court of Civil, Appeals of the Third District at the instance of plaintiff in error, Tarrant County, and the judgment of said court was reformed and rendered by this court in favor of Tarrant County against the defendant in error, appellee in the Court of Civil Appeals, R. L. Rogers and K. M. Van Zant and U. Harding sureties on his official bond for the sum of $2330.51, at six percent interest thereon from December 6, 1906.' The amount of the judgment rendered by the Court of Civil Appeals represented the sum of $472.71 found by said court to be the correct amount awarded the plaintiff in error in the court below and the difference between the sum of $5704.20 found by the jury to have been paid by the defendant in error to the plaintiff in error in excess of what he should have paid upon excess of fees" collected, and the sum of $7563 found by the Court of Civil Appeals to have been paid by plaintiff to defendant in error for indexing records, in excess of what should have been- paid.
As determined by this court, speaking through Justice Williams, the only question presented by the writ of error for decision was whether the defendant in error, who was defendant in the trial court," was entitled to offset the stun of $5704.20 paid to the county of Tar-rant in excess of what he claimed he should have paid for the pur
The amount of the judgment rendered by this court was arrived at by adding to the judgment of the Court of Civil Appeals for $2330.51 the sum of $5704.20 adjudged by this court to have been wrongfully allowed defendant in error by both the trial court and Court of Civil Appeals.
The defendant in error has filed in this court motions for rehearing and to reform the judgment as to the amount awarded plaintiff in error as hereinbefore set out. It is probable that in so far as the amount of the judgment rendered would be affected there is merit in the motion, but the record fails to disclose any cross-assignment presenting the question so that it might be passed on by this court. It has been the uniform practice in the Supreme Court that all questions, not involving fundamental error of law apparent on the record, must be presented by assignments or cross-assignments of error, and unless they are so presented the court will not consider them, however meritorious they may appear to be. Ho complaint by cross-assignment on the part of defendant in error has been made in this court as to the amount of the judgment rendered against defendant in error by the Court of Civil Appeals, and hence we are unable to give the questions consideration. Blum v. Moore, 91 Texas, 277; Texas Company v. Stephens, 100 Texas, 628.
Motion for rehearing and to reform judgment is overruled.
Filed April 19, 1911.
