Bordelon v. Philbrick, 1877-6402.

• Decision Date: 26 June 1935
• Docket Number: No. 1877-6402.,1877-6402.
• Citation: 84 S.W.2d 710
• Parties: BORDELON v. PHILBRICK et al.
• Court: Texas Supreme Court

84 S.W.2d 710

BORDELON v. PHILBRICK et al.

No. 1877-6402.

Commission of Appeals of Texas, Section A.

June 26, 1935.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Action by T. A. Bordelon against A. G. Philbrick and another in which the state was substituted as party plaintiff for the use and benefit of plaintiff. Judgment for defendants was affirmed by the Court of Civil Appeals [53 S.W.(2d) 94], and plaintiff brings error.

Judgments of trial court and Court of Civil Appeals affirmed.

W. H. Hall, C. E. Farrall, and B. W. Ashworth, all of Dallas, for plaintiff in error.

W. R. Herring, of Dallas, for defendants in error.

GERMAN, Commissioner.

This suit was instituted by plaintiff in error, T. A. Bordelon, who will be herein referred to as plaintiff, against A. G. Philbrick, a former constable of justice precinct No. 7 of Dallas county, and National Surety Company, who will be herein referred to as defendants. The suit was based upon an alleged breach of the bond of said Philbrick as constable. As the Court of Civil Appeals disposed of the case upon the sole proposition that an injured third party had no right of action upon the bond of the constable under article 6881 of the Revised Civil Statutes of 1925, and as that is the first question we feel called upon to decide, it is unnecessary to make a fuller statement as to the nature of the suit at this time.

Having been duly elected to the office of constable, Philbrick, as principal, and National Surety Company, as surety, on November 30, 1928, executed a bond in the sum of $1,500, whereby he bound himself unto "the Governor of Texas, Austin, Texas, and his successors in office," with the following condition: "The Condition of the above obligation is such, that, whereas, the above bounden A. G. Philbrick was on the 6th day of November, 1928, duly elected to the office of Constable in and for Dallas County, in the State of Texas; Now, therefore, if the said A. G. Philbrick shall faithfully perform and discharge all the duties required of him by law as Constable aforesaid, then this obligation shall be void, otherwise to remain in full force and effect."

This bond was duly approved by the commissioners' court of Dallas county December 31, 1928, and was properly filed in the office of the county clerk and recorded.

Originally, plaintiff brought suit in his own name, but later, on the theory that the suit should be brought in the name of the state of Texas in his behalf, the trial court permitted him to substitute the name of the state of Texas as plaintiff. He then filed a substituted petition, reciting as follows: "Now comes the State of Texas by and through T. A. Bordelon, hereinafter called plaintiff, and represents to the court that T. A. Bordelon is the party to whom any judgment rendered in this cause in favor of the plaintiff will inure."

He then alleged that Philbrick had been duly elected constable of precinct No. 7; that he qualified by giving a bond which was duly approved as required by law, and set out the bond in haec verba. He prayed for recovery in the name of the state to be paid to the clerk and then paid by the clerk to himself.

Prior to the codification of 1925 and beginning with an act of 1846 (Rev. St. 1911, art. 7141), what is now article 6881 of the Revised Statutes of 1925 read substantially as follows: "Every person who may be elected to the office of constable shall, before entering upon the duties of the office, give a bond with two or more good and sufficient sureties, to be approved by the commissioners' court of his county, for such sum as may be directed by said court, not less than five nor more than fifteen hundred dollars, payable to the governor and his successors in office, conditioned for the faithful performance of all the duties required of him by law; and shall also take and subscribe the oath of office prescribed by the constitution, which shall be indorsed on said bond, together with the certificate of the officer administering the same; which bond and oath shall be recorded in the office of the clerk of the county court, and deposited in said office; said bond shall not be void on the first recovery, but may be sued on from time to time in the name of the party injured until the whole amount thereof is recovered."

By the codification of 1925, article 6881 was made to read as follows: "Each person who may be elected to the office of constable shall, before entering upon the duties of the office, give a bond with two or more good and sufficient sureties to be approved by the commissioners court of his county, for such sum as said court may direct, not less than five hundred nor more than fifteen hundred dollars, conditioned for the faithful performance of all the duties required of him by law; and shall also take and subscribe the official oath, which shall be indorsed on said bond, together with the certificate of the officer administering the same."

It will be observed that the provision that the bond be payable to the Governor and his successors in office and the further provision that the same may be sued upon from time to time in the name of the party injured until the whole amount thereof is recovered are omitted from said article as adopted in 1925. Upon the theory that a third party has no right to sue upon such a bond without legislative authorization, the Court of Civil Appeals held that the omission of the language above mentioned took away the right of an injured third party to maintain an action upon the bond. 53 S.W.(2d) 94.

We call attention to the fact that a portion of what was formerly this article is now article 6003 of the Revised Statutes of 1925, which is as follows: "No official bond shall be void upon first recovery but may be sued upon it separate actions until exhausted."

We also call attention to the fact that the codifiers no doubt intended by article 6000 to make the bonds of constables payable to the county judge instead of to the Governor and this explains why the provision with reference to payment to the Governor was omitted from article 6881. Article 6000 is as follows: "All official bonds of county officers that are required by law to be approved by the commissioners court, and which have been so approved, shall be made payable to the county judge and safely kept and recorded by the county clerk in a book kept for that purpose."

In 1933 the Legislature amended article 6881 so as to make it read as it formerly read. Acts 43d Leg. p. 287, c. 115 (Vernon's Ann. Civ. St. art. 6881).

As the bond here in question was executed in 1928 and prior to the amendment mentioned, we have the following situation:

Article 6881 does not designate to whom a constable's bond shall be made payable, while article 6000 (if a constable be regarded as a county officer) provides that such bond be made payable to the county judge; and in this instance we have a bond payable to the Governor. It is apparent, therefore, that neither article of the statute specifically authorized the bond to be made payable to the Governor. Obviously, therefore, the bond is not technically a statutory bond. However, it was voluntarily given by Philbrick as his official bond, and by virtue of same he took his office and assumed to perform the duties thereof, and there is no question but what it is good and may be sued upon as a common-law obligation. Watkins v. Minter, 107 Tex. 428, 180 S. W. 227; Colorado Nat. Bank v. Lester, 73 Tex. 542, 11 S. W. 626; Jones v. Hays, 27 Tex. 1; Hines v. Norris (Tex. Civ. App.) 81 S. W. 791; State v. Horn, 94 Mo. 162, 7 S. W. 116.

The only serious question, therefore, is as to the right of plaintiff to maintain an action thereon in his own name or in the name of the state of Texas for his use and benefit.

The obligation of the bond was that Philbrick should "faithfully perform and discharge all duties required of him by law as constable." We have no hesitancy in holding that regardless of whether the bond should have been made payable to the Governor or to the county judge, it was intended for the use and benefit of all persons who might be injured or affected by a failure of the constable to faithfully perform and discharge all duties required of him by law. Howard v. United States, Use of Stewart, 184 U. S. 676, 22 S. Ct. 543, 46 L. Ed. 754.

It appears to be the theory of defendants in error, which theory was sustained by the Court of Civil Appeals, that the bond in this instance was an official bond. Based upon the proposition that it was an official bond, they contended that the same could not be sued upon by a private party "in the absence of some express provision of the law which would be read into the bond as a part thereof authorizing suit upon such official bond by a private individual for a wrong, if any, done him by such officer." The answer to this contention is found in article 1991 of the Revised Statutes of 1925. That article is as follows: "Whenever an official bond is made payable to the State of Texas, or any officer thereof, and a recovery thereon is authorized by, or would inure to the benefit of parties other than the State, suit may be brought on such bond in the name of the State alone for the benefit of all parties entitled to recover thereon."

While there was no express provision in the law directing that the bond be made payable to the Governor, yet it was made so payable and was undoubtedly intended by Philbrick...