Cowart v. Russell

• Decision Date: 13 November 1940
• Docket Number: No. 2330-7553.,2330-7553.
• Citation: 144 S.W.2d 249
• Parties: COWART v. RUSSELL et al.
• Court: Texas Supreme Court

144 S.W.2d 249

COWART v. RUSSELL et al.

No. 2330-7553.

Commission of Appeals of Texas, Section A.

November 13, 1940.

Error to Court of Civil Appeals of Eleventh Supreme Judicial District.

Action by J. T. Cowart against John A. Russell and others to recover money allegedly embezzled by the named defendant who was a clerk of the district court. Judgment for the defendants was affirmed by the Court of Civil Appeals, 116 S.W.2d 888, and the plaintiff brings error.

Affirmed.

Lyndsay D. Hawkins, of Breckenridge, and L. C. Counts, of Olney, for plaintiff in error.

Conner & Conner, of Eastland, for defendants in error.

L. K. Frickstad and Allen Wight, both of Dallas, amici curiae.

GERMAN, Commissioner.

The parties will be designated in this opinion as in the trial court. The Court of Civil Appeals has made a very accurate statement of the material facts, which statement is as follows:

"Defendant Russell was clerk of the district court of Eastland county in 1919 and 1920. During his tenure of office the case of Cowart v. Rust was tried in said court. On the trial an agreement was reached whereby Rust paid into the district court the sum of $2,000 in settlement of said suit, $666.65 thereof being for the benefit of the plaintiff herein, who was then a minor. The judgment directed the clerk of said court (Russell) to pay $666.65 to Mrs. Callie Cowart, for plaintiff, when she qualified as plaintiff's guardian. Mrs. Cowart never so qualified. The evidence is to the effect that the funds to which plaintiff was entitled were never paid to her, or any one else. The present suit was instituted by Cowart against Russell and the sureties on his official bond as district clerk; plaintiff alleging that Russell had embezzled and converted said sum of money so deposited with him as clerk. The purpose of the suit was to recover such sum, with interest, from said former clerk and his sureties, by reason of such defalcation.

"Plaintiff's petition was filed January 17, 1936. The funds were deposited with the clerk in the Cowart-Rust case in January, 1920. When the money was paid into court plaintiff was a minor. He attained his majority on the 13th day of May, 1932. Thus, it appears that this suit was instituted more than two years, but less than four years, after the time plaintiff became 21 years of age. Russell ceased to be district clerk in December, 1920. * * * Russell's bond as district clerk was conditioned that he should `faithfully perform and discharge all the duties required of him by law as district clerk, aforesaid, and shall safely keep the records of his office * * *.'

"The court instructed a verdict for defendants."

The Court of Civil Appeals affirmed the judgment of the district court. 116 S.W.2d 888. Its judgment was based upon the holding that the cause of action was barred by the two years' statute of limitation (Art. 5526, subd. 4, R.S.1925). In reaching this conclusion the Court of Civil Appeals followed the decision of the Supreme Court in Hatcher v. State, 125 Tex. 84, 81 S.W.2d 499, 502, 98 A.L.R. 1213.

In the Hatcher case it was held that an official bond is "a collateral security for performing the officer's duty, and, when suit is barred for breach of his duty, action is also barred on the bond." It was therefore held that action upon a bond such as was there involved was subject to the bar of the two years' statute. That decision was not only in accord with the great weight of decisions, but has been followed in subsequent cases.

In the case of Tarrant County v. Prichard et al., Tex.Civ.App., 89 S.W.2d 1028, a suit against a justice of the peace and the surety on his official bond was held to be barred in two years.

The case of Aetna Casualty & Surety Co. v. State, Tex.Civ.App., 86 S.W.2d 826, involved a suit against a district clerk and the surety on his official bond. The suit was on behalf of the State to recover a sum of money paid into the treasury of the court, as in the present suit. Upon authority of the Hatcher case, the action was held to be barred by the two years' statute. Judgment in favor of the State was reversed and judgment rendered in favor of the surety. Application for writ of error was dismissed, but the...