City of Whitesboro v. Diamond

• Decision Date: 13 June 1903
• Citation: 75 S.W. 540
• Parties: CITY OF WHITESBORO v. DIAMOND et al.
• Court: Texas Court of Appeals

75 S.W. 540

CITY OF WHITESBORO v. DIAMOND et al.

Court of Civil Appeals of Texas.

June 13, 1903.

Appeal from District Court, Grayson County; Rice Maxey, Judge.

Action by the city of Whitesboro against G. W. Diamond and others. From an order overruling a motion by the plaintiff to compel the clerk of the district court to pay over to it money paid on its judgment by the defendants, it appeals. Reversed and dismissed.

Chas. R. Crenshaw, for appellant. Wolfe, Hare & Semple, for appellee.

TEMPLETON, J.

The city of Whitesboro instituted a number of suits in the district court of Grayson county against certain delinquent taxpayers of the city, the purpose of the suits being to recover the unpaid taxes and to foreclose alleged tax liens. Two of the suits were compromised, judgment being entered in favor of the city in each case for $25 and all costs. The sums recovered by the city in these cases were paid to the clerk of the court, and he appropriated the same to the payment of costs he had charged against the city in the other cases, the costs in the said two suits having been paid by the defendants therein. The city denied the right of the clerk to make such appropriation, and filed a motion in said court to require him to pay over the money so appropriated. He resisted the motion, and the same was overruled; hence this appeal.

The district court had no jurisdiction of the matters set up in the motion. It was not the duty of the clerk to receive the money, and he cannot be held to have received it in his official capacity. Railway Co. v. Walker, 93 Tex. 611, 57 S. W. 568. It was not his duty, under the statute or the general law, to receive the money, and he had not been directed by any order of the court to receive it. He can be held liable, if at all, only in his individual capacity, and not as an officer of the court. His failure to pay over the money, even if he is not entitled to retain the same, was not a breach of any official duty, and he cannot be compelled, by motion filed against him in the district court, to discharge a personal obligation. The district court was without jurisdiction of the amount in controversy, and the motion cannot be treated as an original suit, and the cause determined on its merits. The payment to the clerk was not a satisfaction of the judgments, unless the clerk was the agent of the city to receive payment.

The judgment of the court below disposing of the cause on its merits will be set aside, and judgment...