Clay County v. Merchants' & Planters' Bank

• Decision Date: 31 May 1924
• Docket Number: (No. 11000.)
• Citation: 264 S.W. 163
• Parties: CLAY COUNTY et al. v. MERCHANTS' & PLANTERS' BANK et al.
• Court: Texas Court of Appeals

Page 163

264 S.W. 163

CLAY COUNTY et al. v. MERCHANTS' & PLANTERS' BANK et al.

(No. 11000.)

Court of Civil Appeals of Texas. Fort Worth.

May 31, 1924.

J. J. Lory's Petition for Rehearing Denied June 28, 1924.

Appeal from District Court, Clay County; Paul Donald, Judge.

Suit by Clay County and others against the Merchants' & Planters' Bank and others. From an order sustaining a special exception to plaintiffs' petition, plaintiffs appeal. Reversed and remanded.

W. A. Keeling, of Mexia, Weldon & McDonald, of Wichita Falls, John W. Goodwin, of Austin, and Vincent Stine, of Henrietta, for appellants.

Carrigan, Montgomery, Britain, Morgan & King, Bullington, Boone & Humphrey, and John B. King, all of Wichita Falls, for appellees.

DUNKLIN, J.

This suit was instituted by the state of Texas, acting through its Attorney General, and Clay county and road district No. 1 of Clay county, acting through the county judge and county commissioners of that county, against the Merchants' & Planters' Bank of Henrietta, which was the duly appointed county depository of Clay county, and the sureties on two official bonds given by the depository to recover funds that had been deposited with the bank in accordance with the statutes by the three plaintiffs respectively.

The first bond sued on was approved February 17, 1921, and covers a period of two years from and after that date. The second bond was approved February 12, 1923, and covers a period of two years next after that date. The first bond was signed by six sureties and the second bond by five. E. Henderson signed the first bond but did not sign the second. J. J. Lory was a surety on both bonds.

The plaintiffs have prosecuted this appeal from an order of the court sustaining a special exception addressed to the petition by the defendant Lory, to the effect that there was a misjoinder of causes of action and parties plaintiff. By an act of the Thirty-Fifth Legislature, passed in 1917, shown in chapter 11, p. 16, of the General Laws (Vernon's Ann. Civ. St. Supp. 1918, arts. 2440-2445), a provision was made requiring the commissioners' court of each county in the state to appoint some banking corporation, association, or individual banker, doing business in the county, as the depository of the public funds, upon giving a bond with sureties, to be approved by the commissioners' court, and made payable to the county judge and his successors in office, and to be approved by the commissioners' court and also by the state comptroller of public accounts. By section 3 of that act, which is now article 2444 of our Revised Statutes, the county treasurer is required to transfer to the county depository so selected, after it has qualified, all the funds belonging to the county, as well as all other funds belonging to any district or other municipal subdivision thereof which has not selected its own depository. The act also requires the tax collecter to deposit "all taxes collected by him, or under his authority, for the state and such county and its various districts and other municipal subdivisions, in such depository or depositories, as soon as collected, pending the preparation of his report of such collections and settlement thereon." Following those provisions, the statute contains this: "The bond of such county depository or depositories shall stand as security for all such funds."

It was alleged in the petition that funds belonging to ...