American Indemnity Co. v. Hidalgo County
| Decision Date | 08 January 1941 |
| Docket Number | No. 10841.,10841. |
| Parties | AMERICAN INDEMNITY CO. v. HIDALGO COUNTY et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Hidalgo County, Ninety-Third District; W. R. Blalock, Judge.
Action by Hidalgo County and others against the American Indemnity Company and O. Em Jones to recover on the tax collector's official bond. From a judgment for the plaintiffs, first-named defendant appeals.
Affirmed.
Davenport & Ransome, of Brownsville, for appellant.
R. D. Cox, Jr., of Mission, for appellees.
In May, 1926, O. Em Jones, then tax collector of Hidalgo County, wrongfully disbursed certain tax funds belonging to the State of Texas and Hidalgo County and certain subdivisions thereof. The funds were paid out in pursuance of a judgment of a district court of said county.
Subsequently, but within two years of the wrongful act, the State of Texas brought this suit against Jones and his surety, American Indemnity Company, on Jones' official bond as tax collector, to recover said funds, described in appellant's brief as follows:
In due course the cause was tried and the State recovered each of the several items sued for, and for the purposes stated. Jones and the Indemnity Company appealed to this Court, which held that the State was entitled to recover the amount owing to it, as Jones' bond to cover taxes collected for the State was payable to the Governor for the use of the State, but that the State could not maintain the suit in behalf of Hidalgo County and its subdivisions, since Jones' official bond to indemnify those entities was payable to the county judge for their benefit. Accordingly, the judgment of the trial court upon that first trial was affirmed insofar as recovery was awarded the State for the amount of its tax money which had been misapplied, and reversed and remanded insofar as the State recovered in behalf of Hidalgo County and its subdivisions. American Ind. Co. v. State, Tex. Civ.App., 104 S.W.2d 68. The Supreme Court dismissed appellants' application for writ of error for want of jurisdiction.
Upon the return of mandate Hidalgo County and its affected subdivisions filed in the trial court what they denominated "plaintiffs' fourth amended original petition," in vacation just prior to the convening of the next ensuing term of the trial court, in lieu of the third amended original petition, which had been previously filed by the State for itself and said subdivisions. By this amendment Hidalgo County and its subdivisions undertook to substitute themselves as parties plaintiff in lieu of the State, thereby dropped from the suit. These parties set up precisely the same cause of action (upon identical allegations of fact) against Jones and his surety which the State in all prior pleadings had undertaken to set up in their behalf. To this pleading the Indemnity Company interposed pleas in abatement and of limitation, which the trial judge overruled, and thereupon rendered judgment for the plaintiffs as prayed for. The Indemnity Company has appealed; Jones has not.
It appears that Jones appeared and actively contested the suit throughout its course in the trial court and this Court until appellees substituted themselves as parties plaintiff by filing plaintiff's fourth amended original petition. Jones was not cited by new process to appear and answer that pleading, nor did he participate in the trial thereon, but his counsel had actual notice of the filing of the amendment and of the proceeding thereon, and somewhat regularly attended upon, but did not actually participate in, the trial. Appellant here assails the judgment upon the contention that it is invalid and of no effect because of lack of actual notice (by citation) to Jones of the filing of plaintiff's fourth amended original petition, upon which the judgment was rendered. We overrule this contention, propounded in appellant's fourth proposition of law. Jones having been cited upon the original petition, and appeared and answered thereto, he was charged with notice of the filing of all subsequent petitions, or at least of those which did not materially change or enlarge the cause of action originally and consistently theretofore asserted against him. Art. 2001, R.S.1925; Slattery v. Uvalde, etc., Co., Tex.Civ.App., 140 S.W.2d 987; Phillips v. The Maccabees, Tex.Civ.App., 50 S.W.2d 478.
Appellant contends in its first proposition that the county and the several subdivisions thereof had no right to assert, in this one suit, their several respective causes of action against the tax collector and the surety upon...
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