City of El Paso v. Nicholson
| Decision Date | 03 October 1962 |
| Docket Number | No. 5547,5547 |
| Parties | CITY OF EL PASO, Texas, Appellant, v. Bill NICHOLSON, Appellee. |
| Court | Texas Court of Appeals |
Travis White, City Atty., Robert J. Galvan, John C. Ross, Jr., Asst. City Attys., El Paso, for appellant.
Holvey Williams, Daniel Garbern, El Paso, for appellee.
This is an appeal from a judgment recovered by appellee (plaintiff) against the City of El Paso for a sum of money which had been held by appellant (defendant). The money was taken from one Bob Huff by police officers during the process of a gambling raid, but plaintiff maintains that the money was actually his. The basis of this controversy or lawsuit seems to depend on the terms and interpretation of Section 71 of the El Paso City Charter which, among other things, says:
'The City Council shall have the management and control of the finances and property, real, personal and mixed, belonging to the City; provided, that no suit of any nature whatever shall be instituted or maintained against the City of El Paso unless the plaintiff therein shall aver and prove that previous to the filing of his original petition he applied to the City Council for redress, satisfaction, compensation or relief, as the case may be, and that the same was by the City Council refused'. (Emphasis ours)
In this appeal appellant does not maintain that the money was lawfully or rightfully seized, but appears to base its entire defense on its position that appellee did not comply with the provisions of said Section 71 of the City Charter, in trying to recover his money.
It is obvious from the record that the appellant did not produce sufficient evidence to warrant the forfeiture of the money here involved, amounting to $2440.00.
The gambling raid was made at a residence on January 6, 1958. Approximately a year and eight months later--to-wit, August 26, 1959--Nicholson, as plaintiff, filed his original petition asking the return of this sum of moeny. He alleges that he had handed the money to one Huff; that it consisted of five dollar bills contained in a canvas bag; that Huff put it inside of his shirt and went to sleep on a couch in the living room while he (Nicholson) was engaged in what he called a small-stake poker game in the kitchen. During the raid, plaintiff alleges, the money was taken from Huff. After the filing of this petition on August 26, 1959, the defendant on September 17, 1959 filed its plea in abatement and first original answer, comprising a general denial, and setting up plaintiff's failure to apply to the City Council for redress, satisfaction, compensation or relief, as provided in said Section 71. Thereafter, on March 14, 1960 plaintiff did make such application to the City Council for redress, satisfaction, compensation or relief, leaving his original petition still pending before the trial court. Then, on March 24, 1960 the City Council denied plaintiff's application. Thereafter, on April 20, 1960 plaintiff filed his first amended original petition and then, on January 20, 1961, filed his second amended original petition. It was on this petition that he went to trial, the first or original petition remaining on file and not dismissed.
On the trial of the case the district court awarded judgment to the appellee for $2440.00 plus six per cent interest from the date the same was seized from the possession of plaintiff (or Huff), and with interest on such judgment from the date of same at the rate of six per cent.
Appellant, as stated above, bases its appeal on the contention that appellee went to trial on his second amended original petition without having dismissed the original petition which had been filed before any application for redress, ect., had been filed with the City, in accordance with the terms of Section 71 of the City Charter. The appellant points out that the Charter provision says that no suit shall be instituted or maintained unless the plaintiff shall have averred and proven that, previous to the filing of his original petition, he made the above described application.
We do not believe appellant's point is good, for two reasons. First, as pointed out by Justice Higgins of this court in El Paso Union Passenger Depot Co. v. Look, Tex.Civ.App., 201 S.W. 714----
'It [charter provision] was manifestly mainly intended to protect the city against the instigation of suits upon pecuniary demands until it had been afforded an opportunity to investigate and amicably adjust the same.'
'* * * is to be regarded as in aid of the management and control of the city's finances and property, vested in the council * * *.'
We think these words by Justice Higgins fairly and properly interpret the intent and meaning of the section here involved. It appears to us that here the provisions of this section were substantially complied with. The application was presented to the City Council; they did have a chance to investigate and amicably adjust the same, which they declined to do. Plaintiff then went ahead with his lawsuit. This leaves the appellant resting its entire case on the contention that plaintiff filed his first original petition, failed to dismiss it, then went ahead and filed his application for redress or settlement; and, after it was refused, filed an amended petition upon which this case was eventually tried. We fail to see where any harm did or could have resulted to the City of El Paso. Of course one real and underlying reason for the plaintiff's procedure is that the statute of limitation was running against him, and as far as we can tell from the record, would have intervened between the date of the filing of the first petition and the second amended original petition. It might be noted, too, that plaintiff describes his petition upon which he went to trial as his second amended original petition. Section 71 merely says that the application must be filed before the filing of the original petition. Here such was done before the filing of his second amended original petition....
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