Chapman v. Eastland County

• Decision Date: 20 March 1924
• Docket Number: (No. 1601.)
• Parties: CHAPMAN, Com'r of Insurance & Banking, et al. v. EASTLAND COUNTY.
• Court: Texas Court of Appeals

260 S.W. 889

CHAPMAN, Com'r of Insurance & Banking, et al. v. EASTLAND COUNTY.

(No. 1601.)

Court of Civil Appeals of Texas. El Paso.

March 20, 1924.

Rehearing Denied April 10, 1924.

Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.

Action by Eastland County against J. L. Chapman, Commissioner of Insurance and Banking, and others. Decree for plaintiff, and defendants appeal. Reversed and rendered in part and affirmed in part.

Conner & McRae, of Eastland, W. A. Keeling, Atty. Gen., and John W. Goodwin and Walace Hawkins, Asst. Attys. Gen., for appellants.

Burkett, Orr & McCarty, of Eastland, Bailey, Nickels & Bailey, of Dallas, and Cofer & Cofer, of Austin, for appellee.

HARPER, C. J.

This is an action instituted by Eastland county, Tex., against the Security State Bank & Trust Company, the commissioner of insurance and banking, and J. R. Burnett, special agent of the commissioner, to establish as a general deposit certain of its county and school funds, and have them classified as claims entitled to be paid out of the depositors' guaranty fund.

In substance, the petition alleges that August 3, 1921, the defendant bank had complied with the provisions of the bank deposit guaranty statutes, in that its unsecured non-interest-bearing deposits were secured by the depositors' guaranty fund; that on said day defendant had on deposit in said bank $629,847.42, secured by said fund; that on said date the commissioner closed said bank for liquidation; that plaintiff had duly filed its claim; and that it had been rejected by the commissioner.

The defenses pleaded will appear in the body of this opinion.

Tried without a jury, and resulted in a decree in favor of plaintiff establishing and classifying its claims as unsecured, noninterest-bearing deposits, secured by the guaranty fund, and directed its payment accordingly.

The first proposition is that the suit cannot be maintained by the county, but must be maintained by the county treasurer as to the county funds. Without writing at length or in detail in answer to the various reasons assigned in support of the propositions, the answer is that, the county being the owner of the funds, this suit is properly maintainable in its corporate name. Article 1835, Rev. Civ. Stat.; McConnell v. Wall, 67 Tex. 325, 3 S. W. 287.

The sixth is that the county cannot maintain this suit for the school funds because appellant says such funds were funds belonging to the various districts of the county; had been apportioned; therefore each district should sue for itself. There is no finding of fact, and therefore we may presume that the evidence supports a finding that the moneys deposited by the county in the county depository had not yet been distributed to the several districts. Appellant says they had been apportioned and cites testimony to that effect, but the evidence is that, though apportioned on the books, the funds had not been segregated and credited to the several districts. Therefore the county is the proper party plaintiff. Watson v. El Paso County (Tex. Civ. App.) 202 S. W. 126; Poole v. Burnet County Co., 97 Tex. 77, 76 S. W. 425. Especially is this so in the absence of plea in abatement. Rev. Civ. Stat. art. 1906.

The second is that the petition is subject to general demurrer because it contains no allegation that the suit was filed within six months after rejection of the claim. Article 464, Rev. Stat., provides:

"If the commissioner doubts the justice and validity of any claim, he may reject the same, and serve notice of such rejection upon the claimants, either by mail or by written notice personally served. * * * The action upon the claim so rejected must be brought within six months after such service."

Plaintiff alleged filing of the claims November 22, 1921; "that the commissioner rejected them; that if it be mistaken in this, then that the commissioner had refused to pass upon same, etc.;" that such failure is tantamount to rejection, and gives notice to produce the claims with formal endorsement as to refusal.

This pleading was not subject even to special exception as to the limitation urged, because it does not show that limitation of six months after rejection had expired, and defendant not having pleaded it as a defense, it is not available to him. State Banking Board v. Pilcher (Tex. Civ. App.) 256 S. W. 996.

The third is that the court should not have established the claim because it was presented by the county auditor who had no authority to make such claims.

The county auditor has broad and comprehensive authority under the statute creating the office, but the evidence clearly shows that it was simply presented by him as agent of the county.

Twenty-eighth. Was the trial judge disqualified because of the fact that he resided in Eastland county and paid taxes? No. City of Dallas v. Evalyn Peacock, 89 Tex. 58, 33 S. W. 220.

Seventh. It would seem to be immaterial to any question on the merits of this action that the answer of the appellant bank was stricken out because prepared and filed by the attorney, for the commissioner without being authorized to do so.

For the reason that, as may be seen by the following facts, copied from appellee's brief, the bank's liability could not be questioned, and the right of the county to participate in the general distribution of its assets is not an issue here. The last question presented by the commissioner is: Under the facts, is the county appellee within that class of depositors whose moneys are secured by the guaranty fund, provided by the statute?

(1) On February 14, 1921, the commissioners' court of Eastland county designated the Security State Bank & Trust Company as the county depository, and said bank entered into bond as required by law.

(2) On April 14, 1921, one of the sureties on the bank's...