County of Caldwell v. Crocket

• Decision Date: 24 May 1887
• Citation: 4 S.W. 607
• Parties: COUNTY OF CALDWELL v. CROCKET and others.
• Court: Texas Supreme Court

4 S.W. 607

COUNTY OF CALDWELL v. CROCKET and others.

Supreme Court of Texas.

May 24, 1887.

Appeal from district court, Caldwell county.

This is a suit instituted by Crocket and others, appellees, against the county of Caldwell, appellant, on a large number of school claims against several school-districts of Caldwell county, Texas.

Stringfellow & McNeal and A. M. Jackson, Jr., for appellant.

The first assignment of error is that the court erred in overruling defendant's general demurrer and special exceptions.

In a suit against a county, predicated upon a number of school vouchers, it is necessary that the petition, in order to show a cause of action, should state that the claims sued on were executed (issued) and delivered by the county to the parties named therein, and should identify the claims sued on either by setting them out in hæc verba, or by appropriate descriptive averments, and should show the amount due on the claims. A petition failing in any of these respects is bad on general demurrer.

The petition alleges "that petitioners are the legal owners and holders of the several school claims due by said county, a list of which said claims is hereto attached, marked `Exhibit A,' and made a part of this petition." The so called Exhibit A shows 87 of these claims. There is not an allegation in the petition that a single one of these claims was issued by Caldwell county. There is not in the petition a single averment descriptive of a single one of these claims. The petition does not even show that a single one of these claims was issued between September 1, 1873, and January 1, 1876, though the dates are shown in the exhibit. In the fourteenth paragraph of plaintiff's petition, it is alleged "that there is now due them from said county, upon said several claims set out in Exhibit A, the aggregate sum of fifteen hundred and thirty-two 52-100 dollars," etc. In the twentieth paragraph the averment is "that said county of Caldwell is justly indebted and liable to pay to them said sum of fifteen hundred and thirty-two 52-100 dollars, with 8 per cent. interest per annum from the date of the auditing of said claims, less credits indorsed thereon, as balance due upon the several claims in the aggregate set out and mentioned in said Exhibit A." The aggregate set out in the exhibit is $1,532.52. Pool v. Sanford, 52 Tex. 621; Seligson v. Hobby, 51 Tex. 147; Burks v. Watson, 48 Tex. 107; Wood v. Evans, 43 Tex. 175; Hanks v. Enloe, 33 Tex. 624; Thompson v. Eanes, 32 Tex. 190; Swisher v. Hancock, 31 Tex. 262; Beal v. Batte, Id. 371; Goodlett v. Stamps, 29 Tex. 121; Moody v. Benge, 28 Tex. 547; Parr v. Nolen, Id. 798; Gray v. Osborne, 24 Tex. 157; Sneed v. Moodie, Id. 159; Lipscomb v. Bryan, 22 Tex. 609; Malone v. Craig, Id. 610; Jennings v. Moss, 4 Tex. 452; Frazier v. Todd, Id. 462.

While an exhibit attached to a petition may be looked to in aid of its allegations, the exhibit will not supply material allegations omitted by the petition. Pool v. Sanford, 52 Tex. 621, above cited; Burks v. Watson, 48 Tex. 107, above cited; Thompson v. Eanes, 32 Tex. 194, above cited; and the following additional authorities: Parr v. Nolen, 28 Tex. 798; Rules of Court No. 19, 47 Tex. 620.

To maintain an action against a county, under authority of the acts of August 7, 1876, April 22, 1879, and April 2, 1883, it is necessary that the plaintiff should, in his petition, show that the claims upon which he declares, were issued by the county to the teacher therein named, for services rendered by the teacher in teaching public schools in said county between September 1, 1873, and January 1, 1876.

The petition does not give the date of the issuance of a single claim sued on, nor does it show that they were issued between September 1, 1873, and January 1, 1876. It does not show that they were issued to the persons therein named for services rendered by them as teachers in the public schools of said county between September 1, 1873, and January 1, 1876. The exhibit attached to the petition (if it can be looked to at all, which we deny) does show the dates of the issuance of the claims, but it does not show that they were issued for services rendered in teaching public schools in Caldwell county between September 1, 1873, and January 1, 1876. Act August 7, 1876; Act April 22, 1879; Act April 2, 1883.

This assignment of error also complains of the action of the court in overruling the special exceptions of the defendant to plaintiff's petition. Among them is the tenth. It is not alleged that the county of Caldwell was never divided into school-districts, and it does not appear from said petition by what district, if any, said claims are due.

The allegations of the petition show the demands to be against the several school-districts of Caldwell county. The allegations of the petition do show that the county had been divided into districts, and under the law each claim is a demand against the district by which it was issued, and not against the county at large. Campbell v. Polk Co., 49 Mo. 214; Kingsberry v. Pettis Co., 48 Mo. 207, 208.

Nix, Storey & Storey, for appellees.

STAYTON, J.

There is no express averment in the petition that the claims sued on were for the services of teachers between September 1, 1873, and January 1, 1876, but the reasonable intendments, from the facts alleged, are that such was the character of the claims made the basis of the action. There was no special demurrer reaching this question, and in its absence, upon general demurrer, "any reasonable intendment arising upon the pleading excepted to must be indulged in favor of its sufficiency." Rule 17. The petition alleges that the claims sued on were approved by the auditorial board under the act of August 7, 1876, whose action was opposed by the county commissioners' court.

The act of April 2, 1883, provides "that the county commissioners' courts of the several counties in this state are authorized and required, in cases where any part of claims audited as valid, under an act of the legislature approved August 7, 1876, * * * or under the act approved April 2, 1879, * * * remains unpaid, to cause to be issued, in favor of the holder of such claim, a warrant upon the county treasurer, against the school-district owing such claim, for the amount due upon each claim." Gen. Laws 1883, p. 41. A subsequent section of this act provides how money shall be raised to meet such claims in case there be not enough in the treasury of a county to pay them. This act recognizes the validity of claims audited and allowed by the boards under the former laws, and makes it absolutely the duty of the several counties to pay them.

Had the petition alleged nothing more than that the plaintiffs were the owners and holders of the several claims made exhibit to the petition, and that these had been audited by the former boards, and that they were unpaid, the petition would have stated a good cause of action, alleging, as it did, that the county commissioners' court had refused to pay them, or provide for their payment. The petition alleged much more than this. The act of April 2, 1883, did not contemplate that the claims should be again audited, but did contemplate that the audit already made should be deemed sufficient evidence of the validity of the claims. However, it was not necessary for the petition to allege all the facts which it might have been necessary to allege had it been necessary for the plaintiffs to exhibit their right, had the claims not already been audited.

The first assignment of error is that "the court erred in overruling defendant's general demurrer and special exceptions." There were fifteen special exceptions, relating to different matters, and, under well-established rules, the assignment is too general to require further consideration. Rules 23-27. The matters, under this assignment, pointed out in the brief of counsel, have no merit. The sums claimed by the plaintiffs may be, and doubtless are, due from different school-districts in the county, but it was not necessary that the petition should define these several districts, and allege how much was due from each one of them. These are matters which it must be presumed that the records of the county show; and the act of April 2, 1883, points out how the money shall be raised if it becomes necessary to levy a tax for that purpose.

It is urged that the claims were barred by the statute of limitations. The claims were recognized as valid claims by the county commissioners' court, through its order approving the report of the auditorial board, and directing the payment of them, and so continued until that court rejected the claims, but a short time before this action was...