City of Panhandle v. Bickle, 3444.

• Decision Date: 01 October 1930
• Docket Number: No. 3444.,3444.
• Citation: 31 S.W.2d 843
• Parties: CITY OF PANHANDLE v. BICKLE.
• Court: Texas Court of Appeals

31 S.W.2d 843

CITY OF PANHANDLE v. BICKLE.

No. 3444.

Court of Civil Appeals of Texas. Amarillo.

October 1, 1930.

Rehearing Denied October 22, 1930.

Appeal from District Court, Carson County; E. J. Pickens, Judge.

Action by Bud Bickle against the City of Panhandle. Judgment for plaintiff, and defendant appeals.

Reversed and rendered.

H. H. Smith, of Panhandle, for appellant. James Spiller, of Panhandle, for appellee.

HALL, C. J.

The appellee Bickle instituted this suit to recover the sum of $850 and interest which he alleges the appellant city owed him on salary as city marshal for the months of May, 1929, to November, 1929, inclusive, less certain payments which he admits had been made.

He alleges that at the time of his election to the office of city marshal in April, 1929, the salary which had been fixed prior to January 1, 1929, was fixed at $150 per month. That the city council thereafter, in February, attempted to reduce his salary, but their attempt to do so was void. That thereafter, on July 30th, the city council, in an attempt to force his resignation as city marshal, passed an ordinance abolishing all salary for the office of city marshal, placing the compensation on a fee basis.

The appellant city answered by general demurrer, numerous special exceptions, general denial, and denied that prior to January 1, 1929, a salary of $150 per month for city marshal had been fixed by the city council. That no salary had been fixed prior to January 1, 1929, in any manner prescribed or sanctioned by law, and that, if the appellee had been paid $150 per month, such payments were unauthorized and should be refunded to the appellant city. It is specially alleged that on the 12th day of February, 1929, the city council, at a regular meeting, fixed the marshal's compensation by ordinance No. 58, duly recorded upon the minutes, for the ensuing two years beginning with the April election, 1929, and in said ordinance provided that the city marshal's compensation should consist of the fees as provided by ordinance creating the office of marshal and the corporation court, but that such marshal should receive no salary. It is further alleged that on March 15, 1929, the city council, by a resolution set out in the pleadings, provided for the payment to the city marshal of $100 per month, "unless sooner rescinded by order of the council," and that he should also have the fees of office as provided by ordinance. It is further alleged that on July 30th the city council passed ordinance No. 61, which recites that, whereas the city marshal elected at the April election, 1929, has failed to qualify and file bond as required by law and ordinance, therefore the compensation of said city marshal shall be the fees of office only, and that no salary be allowed until otherwise arranged, as aforesaid.

The appellee filed a supplemental petition which contains numerous exceptions and in which he alleges that he was duly elected to the office of city marshal of the city of Panhandle at a regular election held for that purpose in the month of April, 1929; that the salary for said office had been fixed prior to January 1, 1926, and had remained in force and effect up to January 1, 1929; that plaintiff was first employed by the city in the spring of 1926 at a salary of $150 per month, and in this pleading sues for an additional $150 due him as salary for the month of December, 1929. He charges that the city council are guilty of fraud in inducing him to accept the payment of $100 per month for several months, and alleges that he remained in office, fulfilled the duties thereof in good faith, and that his services have been reasonably worth more than the compensation received, and prays for judgment in the total sum of $1,000.

The court overruled all of the general demurrers and special exceptions, except appellant's special exceptions numbered four and five. A jury was impaneled, but was afterwards discharged, and the trial was to the court, resulting in a judgment for the appellee against the appellant city in the sum of $100 per month as salary for the months of July, August, September, October, November, and December, 1929, aggregating $600.

The first question to be considered arises upon the action of the court in overruling the appellant's general demurrer and certain special exceptions urged to the plaintiff's petition. By these exceptions the appellant contends that the original petition was vague and indefinite; and, inasmuch as it sought to recover under statutory provisions, it was insufficient in not alleging the time at which the salary was fixed, the period for which it was fixed, and the manner of fixing it.

It must be admitted that the petition is not as full and definite as the rules of pleading require, and we strongly incline to the opinion that the court should have sustained the general demurrer and the second special exception. City of San Antonio v. Bodeman (Tex. Civ. App.) 163 S. W. 1043; City of San Antonio v. Coultress (Tex. Civ. App.) 169 S. W. 917; Brown v. City of Amarillo (Tex. Civ. App.) 180 S. W. 654.

Since there is some question with reference to the sufficiency of the petition, we do not base the disposition of the case upon the grounds mentioned.

The appellee objects to a consideration of appellant's brief upon several grounds. One is that the order overruling the motion for new trial does not specifically provide for time within which defendant may prepare and file bills of exception and statement of facts. The order recites that defendant "is allowed eighty days from this date in which to prepare the necessary records to perfect such appeal." If it be held that an order is necessary, we think this is sufficient; but the defendant is given the right to prepare and file bills of exception and statement of facts by express provision of the statutes. R. S. art. 2246.

The second objection is that the judgment is marked filed December 29, 1930. Upon its face the judgment appears to have been rendered January 29, 1930, and we may reasonably infer that a draft of the judgment was prepared and...