Anderson v. Walker

• Decision Date: 22 February 1899
• Citation: 49 S.W. 937
• Parties: ANDERSON et al. v. WALKER, County Judge, et al.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

49 S.W. 937

ANDERSON et al. v. WALKER, County Judge, et al.¹

Court of Civil Appeals of Texas.

February 22, 1899.

Appeal from district court, Travis county; R. E. Brooks, Judge.

Action by A. S. Walker, as county judge of Travis county, against C. Ed. Anderson and others, sureties on the bond of A. J. Jernigan, county treasurer. Defendants impleaded the Austin National Bank and E. P. Wilmot, its president. From a judgment against them, defendants appeal. Affirmed.

Ward & James, Rector & Rector, and J. R. Hamilton, for appellants. Walton & Hill and West & Cochran, for appellee bank.

KEY, J.

A. S. Walker, as county judge of Travis county, instituted this suit against Anderson and others upon two official bonds given by A. J. Jernigan, as treasurer of Travis county, the defendants being sureties on both bonds.

The petition, among others, contains the following allegations:

"(1) That heretofore, to wit, on the 6th day of November, 1894, at a general election held in Texas, for the election of state and county officers, A. J. Jernigan was duly elected county treasurer of Travis county; and on the 21st day of November, 1894, the said Jernigan duly qualified as such county treasurer, by taking the oath of office prescribed by law, and filing with the county commissioners' court of said Travis county his official bond, as such county treasurer, which said bond was in the manner and form required by law, duly accepted and approved. That said bond was in the sum of seventy thousand dollars, and was executed by said Jernigan as principal, and said Anderson, Washington, Brown, Pace, Von Rosenberg, Jr., Holler, Walling, Morris, Schneider, and Boyce (who will hereafter be styled `defendants') as sureties, and was then and there made payable to the county judge of Travis county and his successors in office, and conditioned as follows: That the said A. J. Jernigan shall well and truly perform and discharge all the duties required of him by law, as treasurer aforesaid, and shall pay over, according to law, all moneys that shall come into his hands as treasurer of said county of Travis, and render a just and true account of same to the commissioners' court of said county at each and every term thereof as may be prescribed by law for the said term of two years, and until his successor is elected and qualified, a copy of which said bond is hereto attached, and made a part hereof, marked `Exhibit A.' That subsequently, on the 21st day of November, 1894, said Jernigan duly qualified as treasurer of the school fund of said Travis county, and, as required by law, on the 22d day of said month filed his bond as treasurer of said school fund, which was accepted and approved by the county judge of said county, as the law directed, which said bond was in the sum of thirty thousand dollars, and was executed by said Jernigan as principal and said defendants as sureties, and was then and there conditioned as follows: That said A. J. Jernigan shall well and truly perform and discharge all the duties required of him by law as treasurer of the school fund of Travis county, and shall safely keep and faithfully disburse the said school fund, according to law, and pay such warrants as may be drawn on such fund by competent authority, and render a just and true account thereof at each and every term of the commissioners' court of said county, a copy of which said bond is hereto attached, made part hereof, marked `Exhibit B.' That both said bonds were filed, subsequently recorded, and safely preserved by the clerk of the county court of said county.

"(2) That said Jernigan's predecessor in said office delivered into his (said Jernigan's) hands, as belonging to and for the use of said county of Travis, on the 27th day of November, 1894, the sum of thirteen thousand two hundred and forty-five and 54/100 dollars; and subsequent to said last-named date, and prior to the 24th day of December, 1896, there came into the hands of, and was received by, the said Jernigan, the sum of two hundred and twenty-seven thousand nine hundred and sixteen and 11/100 dollars belonging to and for the use of said county, aggregating the sum of ($241,121 65/100) two hundred and forty-one thousand one hundred and twenty-one and 65/100 dollars, for which said last amount the said Jernigan, as principal, and said defendants, as sureties, became and were liable to the county judge of said county, in accordance with the terms, stipulations, and conditions of said two bonds. That said Jernigan, subsequent to the 27th day of November, 1894, and prior to the 25th day of December, 1896, as county treasurer of said county, and as treasurer of said school fund, disbursed and paid out, as the law directed, and in accordance with the terms and conditions of said two bonds, the sum of two hundred and twenty-two thousand forty-one and 63/100 dollars. That subsequent to the 24th day of December, 1896, and prior to the 31st day of said month, no additional money or funds belonging to said county came into the hands of said Jernigan as such officer, and that between said dates no money belonging to said county was disbursed and paid out by said Jernigan as county treasurer of said county. That on said 31st day of December, 1896, said Jernigan died, and at the date of his death was totally insolvent. That on the ____ day of January, 1897, Z. P. Jourdan was duly and legally elected county treasurer of said county of Travis, and subsequently qualified, as the law required, as the successor of said Jernigan in said office. That on the ____ day of January, 1897, the said Jourdan took possession of said office, and received, as county treasurer of said county, from the Austin National Bank, the sum of nine thousand dollars, and from the First National Bank of Austin the sum of six and 78/100 dollars, as money belonging to said county of Travis; and said Jourdan, in addition to said sums, received from said banks, as county treasurer of said county, two hundred thirty-six and 35/100 dollars in money, found in the safe in said treasurer's office, at the date of said Jernigan's death, aggregating the sum of nine thousand two hundred and forty-three and 13/100 dollars to which said Jernigan is entitled as credit against said amounts received, in addition to the two hundred and twenty-one thousand forty-one and 63/100 dollars disbursed and paid out as aforesaid, leaving due and owing by said Jernigan, as county treasurer aforesaid, the amount of nine thousand eight hundred and seventy-six and 89/100 dollars, which said sum of money, belonging to said Travis county, the said Jernigan misapplied and converted to his own use at some date subsequent to said November 27, 1894, and prior to the 24th day of December, 1896, and has thereby failed, and his legal representatives and executrix have failed and refused, to pay over, according to law, to his said successor, said sum, and to safely keep and faithfully disburse, according to law, said sum of money, as was required by the conditions of said two bonds, whereby the said defendants, as the sureties on said two bonds, became liable to said county of Travis for the amount of money so misapplied and converted as aforesaid by said Jernigan."

The defendants interposed a general demurrer and special exceptions to the plaintiff's petition, because it failed to show how much of the general county funds, and how much of the school funds, Jernigan had received and disbursed, and what proportion of the defalcation was school funds, and what proportion general county funds. These exceptions were overruled. They also impleaded the Austin National Bank and E. P. Wilmot, its president. The court sustained a general demurrer interposed by Wilmot. The judgment recites that the bondsmen excepted to this ruling, but dismissed their cross action against Wilmot.

The original pleading filed by the bondsmen against the bank charges, in substance, that the bank and Jernigan entered into a conspiracy by which they undertook, without lawful authority, to apply $10,000 of Travis county's funds, which Jernigan, as county treasurer, had deposited in the bank, to the payment of an individual debt owing by Jernigan to the bank; and it charges the bank with conversion of the $10,000, and asks for a recovery against it for that sum. It also contains some averments on the subject of estoppel, but these averments are repeated in supplemental pleading filed by the bondsmen, which will hereafter be copied. The court overruled a general demurrer interposed by the bank to the original cross action, but sustained exceptions to so much of it as related to the question of estoppel. The bondsmen then filed the following supplemental pleading (omitting formal parts):

"Now, on this day, come all the defendants herein, sureties upon the bonds of A. J. Jernigan, herein sued on, except the defendant C. Ed. Anderson, leave of the court having been first had and obtained, and file this, their first supplemental bill or petition, by way of cross action to the first amended original answer of the defendant the Austin National Bank, filed in this cause on the 22d day of October, A. D. 1897. And, by way of replication thereto, they aver and say: That it is true, as is alleged in plaintiff's petition, that these defendants and also the said C. Ed. Anderson were sureties upon the official bond of A. J. Jernigan, who was treasurer of Travis county, Texas, as alleged. That on the ____ day of December, A. D. 1896, the grand jury, then sitting as a part of the district court of Travis county, Texas, 26th judicial district, requested the said court to appoint a committee to investigate the financial affairs of Travis county, and particularly the accounts of the various officers of the said county, with the county, as provided for by statute. That, in pursuance of said request, said court, on the 7th day of December, 1896, appointed as such committee, in accordance with the statute in such case...