Boaz v. Ferrell

• Citation: 152 S.W. 200
• Parties: BOAZ et al. v. FERRELL et al.
• Decision Date: 02 November 1912
• Court: Court of Appeals of Texas

152 S.W. 200

BOAZ et al. v. FERRELL et al.

Court of Civil Appeals of Texas. Ft. Worth.

November 2, 1912.

Rehearing Denied December 21, 1912.

Appeal from District Court, Jones County; J. O. P. Dickson, Judge.

Action by Edgar Boaz and others against N. G. Ferrell and others. Judgment for plaintiffs against Ferrell, and judgment for the other defendants, and plaintiffs appeal. Reversed and remanded as to all parties except Ferrell.

Walter S. Pope, of Anson, and S. P. Hardwicke and Harry Tom King, both of Abilene, for appellants. H. G. McConnell, of Haskell, and Clint Chambers, Chapman & Coombes, and Brooks & Brooks, all of Anson, for appellees.

CONNER, C. J.

In November, 1908, N. G. Ferrell qualified as the duly elected sheriff and ex officio tax collector of Jones county, and appellants became the sureties on his bond, payable to the Governor, conditioned that Ferrell should faithfully perform his duties as collector of state taxes. At about the same time the appellees, other than Jones county, became the sureties on Ferrell's bond, payable to the county judge, conditioned for the faithful performance of his duties as collector of the county taxes. This suit was instituted by appellants, the sureties upon said state bond, against Ferrell, Jones county, and said sureties on said county bond to recover certain alleged state taxes that it was charged Ferrell had paid to Jones county in violation of his duty as collector of state taxes. The substance of appellants' petition, so far as necessary to state, is that during the term of office to which Ferrell had been so elected, and during the operation of the several bonds referred to, he had collected of both state and county taxes the aggregate sum of $15,111.14, of which the sum of $6,465.65 was justly payable to the state of Texas, and the sum of $8,645.49 was justly payable to Jones county; that said state and county taxes so collected had been by said Ferrell wrongfully commingled and confused to such an extent and in such a way as to entirely destroy the identity of the several funds, rendering distinction between them impossible; that while said state and county taxes were in the commingled and confused condition stated the said Ferrell wrongfully embezzled thereof and appropriated to his own use the amount he should have returned and paid to the state of Texas, to wit, the sum of $6,465.65, and which appellants were later required to make good agreeably to the terms of the said bond to the state; that the remainder of said commingled funds, viz., $8,645.49, was by said Ferrell paid to Jones county, and which Jones county received and appropriated to its own use and benefit. Appellants alleged that of the commingled fund of $8,645.49 not embezzled by Ferrell and so received and appropriated by Jones county, the state, and through it appellants, was entitled to its proportionate part, and this appellants sought to recover of Ferrell (alleged to be insolvent) and Jones county, and, in the alternative, of said sureties on Ferrell's bond to the county. It was further alleged that said claim had been duly presented to the county commissioners' court of Jones county for allowance, but that the same had been by said court rejected.

Judgment by default was rendered against Ferrell; but the court sustained general demurrers to appellants' petition in favor of the remaining defendants, and, plaintiffs having declined to amend, judgment was entered that Jones county and the other appellees be discharged.

It is not alleged that the appellees, who are sureties on the bond given by Ferrell to secure the payment of county taxes, received any part of the fund in controversy, or that they advised or induced its payment to Jones county, or, indeed, had any notice thereof; and it is clear that there is no privity of contract between them and appellants. We therefore strongly incline to the opinion that the general demurrer as to the surety appellees was properly sustained. We think, however, that we need not now discuss or formally determine this question, inasmuch as we have concluded that appellants exhibit a cause of action against Jones county; and it is only in event of a failure in this respect that any recovery against the surety appellees is sought.

Appellee Jones county insists that the demurrer was properly sustained as to it, for the reason that the act complained of was a wrong or tort of Ferrell's for which it is not liable, and that, in the absence of any contractual obligation on its part or statutory authority, none being alleged, the county cannot be sued, citing, among others, Heigel v. Wichita County, 84 Tex. 392, 19 S. W. 562, 31 Am. St. Rep. 63, and Nussbaum v. Bell County, 97 Tex. 86, 76 S. W. 430. The cases referred to discuss the question of the county's liability under similar circumstances, rather than the abstract capacity of the county to be sued, and we think a distinction is to be made between the questions. In other words, if, under the circumstances alleged, Jones county is liable to appellants for any amount conformably to general principles of law, then we think no doubt is to be entertained but that the county may be sued. Revised Statutes, art. 789, declares counties to be bodies corporate and politic; and the next article (790) provides that no county shall be sued, unless the claim upon which such suit is founded shall have first been presented to the county commissioners' court for allowance, and such court shall have neglected or refused to audit...