Banister v. Wallace

• Decision Date: 21 October 1896
• Parties: BANISTER, County Judge, v. WALLACE et al.
• Court: Texas Court of Appeals

37 S.W. 250

BANISTER, County Judge, v. WALLACE et al.

Court of Civil Appeals of Texas.

October 21, 1896.

Appeal from district court, Delta county; E. W. Terhune, Judge.

Action by W. S. Banister, county judge, for the use of Delta county, Tex., against W. J. Wallace and others. There was a judgment for defendants, and plaintiff appeals. Reversed.

This suit was originally brought January 5, 1895, in the justice's court of precinct No. 1 of Delta county, by appellant, W. S. Banister, county judge, for the use of the county, against appellees, W. J. Wallace, Ed. Coston, and W. B. Lester, upon a convict bond executed by appellees in the sum of $200, payable in five installments, being the amount of fine and costs adjudged against convict Bob Wallace in cause No. 860 by the county court of the county. There was a trial in the justice's court, and verdict and judgment for the plaintiff in the amount of the bond, from which the bondsmen appealed to the district court, where there was a trial de novo by the court without a jury, resulting in a judgment for the defendants, from which this appeal is taken. The bond was for $200, as before stated, for fine and costs of that amount adjudged against the convict hired by W. J. Wallace, the principal in the bond, at $10 per month until the fine and costs should be discharged, "the same being due and payable," as stipulated in the bond, "as follows: Twenty-five dollars payable on the 1st day of October, 1893, twenty-five dollars payable on the 1st day of November, 1893, twenty-five dollars on the 1st of December, 1893, twenty-five dollars on the 1st day of January, 1894, and one hundred dollars payable on the 1st day of January, 1895." The bond was conditioned that it should be null and void in case W. J. Wallace, principal, should promptly and faithfully pay to the county judge the amounts of money to become due according to the tenor of the bond, and treat the convict humanely while in his employ, furnishing him with a sufficient quantity of good and wholesome food and comfortable clothing, and medicine when sick, etc. The bond was signed by W. J. Wallace as principal and Ed. Coston and W. B. Lester as sureties. It was accepted and approved by the county judge, and the convict accordingly discharged. After the submission of the testimony on the trial in the district court, both parties declining to argue the case, the judge stated that he desired authority upon two propositions, but as one was upon a matter of evidence, he would not permit either side to offer further testimony, "as," he says, "I would suggest wherein I thought the evidence not sufficient. I then asked counsel for authority as to plaintiff's right to recover, he having failed to prove nonpayment of the fine and costs to secure which the bond was given. Then plaintiff's counsel offered to make the proof, and, as I had suggested the point, I...