City of Magnolia Park v. Crooker

• Decision Date: 19 April 1923
• Docket Number: (No. 934.)
• Citation: 252 S.W. 341
• Parties: CITY OF MAGNOLIA PARK v. CROOKER.
• Court: Texas Court of Appeals

252 S.W. 341

CITY OF MAGNOLIA PARK v. CROOKER.

(No. 934.)

Court of Civil Appeals of Texas. Beaumont.

April 19, 1923.

Rehearing Denied June 6, 1923.

Appeal from District Court, Harris County; J. D. Harvey, Judge.

Suit by John H. Crooker against City of Magnolia Park and others. Judgment for plaintiff and the defendant named appeals. Affirmed.

B. L. Palmer, of Houston, for appellant.

John H. Crooker, of Houston, for appellee.

O'QUINN, J.

This suit was filed by John H. Crooker, appellee, against the city of Magnolia Park, a municipal corporation in Harris county, and Frank R. Baldinger, and O. M. Smith, officials of said city, for the purpose of collecting fees alleged by Crooker to have been earned by him as district attorney, in prosecuting cases in the recorder's court of said city. Crooker alleged, in substance, that defendants Baldinger and Smith collected fees due him in each case, but in carrying out a fraudulent scheme and conspiracy formed between them to prevent him from receiving and collecting said fees, so kept the records of said recorder's court, and so altered and changed same, that it was impossible to determine what fees had been collected which, under the law, belonged to him, and what had been paid into the treasury of said city by said Baldinger and Smith. He further alleged that he had no knowledge thereof, and did not acquire knowledge of fees so paid into the treasury of said city until on or about the ____ day of ____, 1919. The case was tried before a jury upon special issues, and verdict rendered that he take nothing as against Baldinger and Smith, but that he recover against the city of Magnolia Park the sum of $1,440. Motion for new trial having been overruled, the city of Magnolia Park has brought this appeal.

This litigation has been varied and long drawn out. It appears that there was opposition to Crooker, who was criminal district attorney for Harris county, prosecuting cases in the recorder's court of appellant, and that he brought mandamus proceedings against the mayor and clerk of said city to compel them to permit him to prosecute cases in said court, and to tax the regular and lawful fees in his favor in cases where he so prosecuted. The mandamus was awarded, and the case was appealed to the Court of Civil Appeals at Galveston, and there affirmed. See 207 S. W. 194. Later, the fees not having been taxed in obedience to the judgment requiring same to be done, Crooker had Smith cited in contempt to show cause why said fees had not been taxed, and after a hearing on said charge it was adjudged by the court that Smith should make and file in said cause a true and correct statement of all the criminal cases on the docket of the corporation court of the city of Magnolia Park involving violations of the penal laws of the state and showing the proper fee taxed in favor of Crooker, and that said statement be filed within ten days, and that should Smith fail and refuse to comply with said order and judgment within said time, then that he appear at said date and show cause why he should not be adjudged in contempt. Smith appeared and filed an additional answer in the proceedings, but offered no further evidence, and, having failed to observe the judgments theretofore entered, was adjudged guilty of contempt, and an order for his commitment to jail was issued. Smith thereupon sued out a writ of habeas corpus in the Supreme Court, which resulted in his being remanded to the custody of the sheriff of Harris county. See 110 Tex. 55, 214 S. W. 320. In order to purge himself of contempt, Smith made and filed a list of cases showing the fees taxed as required by the previous judgments. Then followed this suit by Crooker to collect his fees.

Appellant's first proposition complains that there was a misjoinder of causes of action and of parties; that appellee had combined a suit for debt and for tort. The proposition is without merit. Moody v. Smoot, 78 Tex. 125, 14 S. W. 285; Milliken v. Callahan Co., 69 Tex. 205, 6 S. W. 681; Oppermann v. Petry (Tex. Civ. App.) 115 S. W. 300.

By its second and third propositions, appellant urges that the verdict of the jury in response to special issues Nos. 1 and 3, wherein they found (1) that the city council of the city of Magnolia Park, appellant, did not enact a certain ordinance claimed by appellant to have been passed; and (2) that appellee did not know on or prior to April 6, 1918, nor could he, by the exercise of ordinary care, have known that appellant was denying his claim to the fees in controversy, is not supported by the evidence. We think there is ample evidence to support the findings.

By its fourth, fifth, sixth, seventh, and eighth propositions, appellant complains that appellee was guilty of various acts of misconduct in the trial of the case, and that the same were prejudicial to the rights of appellant. Appellant's bills of exception, upon which these complaints are based, are each qualified by the court, and, as qualified, show no error.

Appellant's ninth proposition complains of the court's refusal to give a requested special charge relative to special issue No. 3 submitted by the court. We do not think there is any error shown. The court's charge, we think, was sufficient, and substantially covered the ground sought to be covered by the requested instruction.

Appellant's tenth and eleventh propositions assert error on the part of the court in...