New York Casualty Co. v. State, 2446-8002.

Citation169 S.W.2d 158
Decision Date24 February 1943
Docket NumberNo. 2446-8002.,2446-8002.
PartiesNEW YORK CASUALTY CO. v. STATE et al.
CourtSupreme Court of Texas

Action on tax collector's official bond by the State of Texas and others against the New York Casualty Company. Judgment for plaintiffs was affirmed by Court of Civil Appeals, 161 S.W.2d 150, and defendant brings error. Judgment of Court of Civil Appeals affirmed and judgment of District Court affirmed.

Lloyd Price, and Hamilton Rogers, both of Fort Worth, for appellant.

Gerald C. Mann, Atty. Gen., and Wm. J. Fanning, Ardell Williams, Geo. W. Barcus, Asst. Attys. Gen., for the State.

R. T. Lipscomb, of Bonham, for Bank.

HICKMAN, Commissioner.

Claude C. Hodge was elected Assessor and Collector of Taxes of Fannin County for the term beginning January 1st, 1937, and ending December 31, 1938, and for the next succeeding term of two years. He died July 6, 1939, during his second term. At that time he was due the State of Texas and the State Highway Department $1,890.73. New York Casualty Company was surety on his official bonds. This suit was filed by the State of Texas and the State Highway Department, acting through the Attorney General, against the Casualty Company to recover the amount named above. The Casualty Company in its answer alleged that the First National Bank of Bonham was the depository for all of the taxes collected by Hodge; that Hodge deposited in said bank all of the taxes of whatsoever nature collected by him during his tenure of office, as it was his duty to do; that when such money was deposited in said bank it became public funds belonging to the State of Texas and the County of Fannin and their subdivisions, and that the money sued for in this case was on deposit in said bank subject to the ownership and control of the plaintiffs. It alleged the pendency of a suit in the Federal Court against it which was instituted by Fannin County. It further alleged that the bank erroneously contended that there was only $8,299.27 deposited to the credit of Hodge as Assessor and Collector, whereas, in fact there was $9,799.27; that the suit of Fannin County was for $7,608.84, and that the amount sued for by Fannin County and the State of Texas and the State Highway Department was $9,499.57, which is less than the amount on deposit in said bank to Hodge's credit.

In explanation of the fact that the books of the bank disclosed that the deposit to Hodge's account was only $8,299.27, the Casualty Company alleged that one Wilbur Faxon was the predecessor of Hodge in the office of Assessor and Collector of Taxes of Fannin County and was appointed a deputy by Hodge, when he assumed office; that at the end of his term of office Faxon was "short of money as such Collector" in the sum of $1,500; that after his term of office had expired and while he was working as a deputy under Hodge, he, Faxon, drew a check for $1,500 on the depository bank payable to Wilbur Faxon and signed by him as follows: "Claude C. Hodge, Assessor and Collector of Taxes" (in print) "by Wilbur Faxon" (in script); that Faxon then endorsed the check, "W. Faxon, Tax Owner"; and that the depository bank cashed such check and charged the amount thereof to the official account of Hodge. It was then alleged that the transaction was fraudulent and unlawful; that the bank was without authority to withdraw funds from the Hodge account in payment of said check; and that, therefore, said Hodge account was unchanged and unaltered by the transaction. Wherefore, it was alleged, all of the money sued for in this case and in the case instituted by Fannin County is on deposit in said bank. It was then alleged that the United States Fidelity & Guaranty Company was surety on Faxon's official bond, and that the shortage occurred during Faxon's tenure of office.

Upon the above allegations the Casualty Company impleaded the depository bank and Faxon's surety praying that, in the event judgment should be rendered against it, then it have judgment over against said cross defendants for a like amount. Upon trial before the court without a jury judgment was rendered in favor of the State of Texas and the State Highway Department against the Casualty Company as prayed for. On the Casualty Company's action against the cross defendant, United States Fidelity & Guaranty Company, Faxon's surety, it was decreed that the latter go hence without day with its costs. It was further decreed that the Casualty Company take nothing by its action against the depository...

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  • Hogan v. Hidalgo County, 12368
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • January 30, 1952
    ...F.2d 664. The more recent case of New York Casualty Co. v. State, Tex.Civ.App., 161 S.W.2d 150, affirmed by the Supreme Court in 140 Tex. 549, 169 S.W.2d 158, holds contrary to appellant's contentions. Judge Hickman, speaking for the Supreme Court, said that even though an officer pays mone......

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