Denman v. Coffee

• Decision Date: 15 November 1905
• Citation: 91 S.W. 800
• Parties: DENMAN et al. v. COFFEE et al.
• Court: Texas Court of Appeals

91 S.W. 800

DENMAN et al. v. COFFEE et al.

Court of Civil Appeals of Texas.

November 15, 1905.

On Rehearing, February 21, 1906.

Second Rehearing Denied April 4, 1906.

Appeal from District Court, Brown County; John W. Goodwin, Judge.

Action by M. H. Denman and others against S. C. Coffee and others. From a judgment in favor of defendants, plaintiffs appeal. Reversed and rendered.

R. P. Conner, for appellants. Jenkins & McCartney, for appellees.

EIDSON, J.

This suit was brought by appellants in the district court of Brown county against the appellees, the county judge and county commissioners of Brown county, to compel them by mandamus in their capacity as the commissioners' court of Brown county, to pass and cause to be entered upon the minutes of said court orders directing the clerk of said court to issue scrip on the county treasurer of said county in favor of appellants for certain amounts aggregating $330, claimed to be due them on account of certain fees of office to which appellant Denman was entitled as sheriff of said county, a part of which fees had been transferred to the other appellants herein.

The amount in controversy is less than the jurisdictional amount of the district court; hence the district court of Brown county was without jurisdiction to try the case, and, the trial court being without jurisdiction, this court can acquire none by appeal. The county judge being a party to the suit does not affect the rule, as the suit can be brought in the county court and a special judge agreed upon or appointed, as provided by law. State v. Hanscom (Tex. Sup.) 37 S. W. 601; Bigby v. Brantley, 85 S. W. 311, 12 Tex. Ct. Rep. 325. This appeal will therefore be dismissed, at the cost of appellants.

Appeal dismissed.

On Rehearing.

In the original opinion in this case we held that the district court did not have jurisdiction of this case, for the reason that the amount involved was less than $500. Since that opinion was rendered the Supreme Court in the case of Anderson v. Ashe, 90 S. W. 872, 14 Tex. Ct. Rep. 637, held that the district court had jurisdiction of a case involving the same question as this.

In this case the appellants, claiming that the commissioners' court of Brown county had allowed certain claims of appellant Denman, as sheriff of said county, for guards employed by him, and at the time of suit owned by appellants, and after allowing same refused to order drafts drawn in favor of said sheriff or appellants for the amounts of said claims upon the treasurer of said county, brought this action in the district court of Brown county against the county judge and county commissioners of said county, as the commissioners' court thereof, for a writ of mandamus to compel them, as the commissioners' court of said county, to enter orders on the minutes of said court directing drafts to be drawn on the treasurer for the amounts allowed the sheriff, as above stated. The petition of the appellants did not seek any judgment as to the amount or validity of the claims, but simply sought a judgment to enforce the performance by the commissioners' court of a ministerial act; that is, to enter an order directing a draft or drafts to be issued for the amounts allowed upon the county treasurer. In the case of Anderson v. Ashe, supra, no relief was sought in the suit, except mandamus to compel the defendant, who was auditor of the county, to countersign the warrant; and the Supreme Court held, that being the case, the amount of the claim was not in controversy, and the district court had jurisdiction. We therefore hold, in conformity with the above ruling of the Supreme Court, that the district court of Brown county had jurisdiction of this case, and that we were in error in holding in our original opinion that said district court did not have jurisdiction of this cause, and in dismissing the appeal herein. Appellants' motion for rehearing is therefore granted, and the judgment dismissing the appeal is set aside, and this case reinstated upon the docket of this court.

This case was tried in the court below without a jury; and the court, after hearing the evidence, rendered a judgment refusing the writ of mandamus prayed for by appellants. It appears from the conclusion of law of the court below contained in the record that its judgment was based upon its construction of certain orders of the commissioners' court as rejecting the claims of appellants, and that therefore their remedy was by suit against the county, instead of an action for mandamus. Appellants by various assignments of error assail this conclusion of law of the court below as being contrary to and inconsistent with its findings of fact upon which said conclusion is based. The findings of fact upon which the court predicated its judgment are as follows:

"(2) I find that on August 13, 1904, the county commissioners' court of Brown county, Tex., passed the following order, viz.:

"`It is ordered by the court that M. H. Denman's account for—

                Board of prisoners ....................... $242 20
                Waiting on court, lunacy cases, etc. .....   47 90
                Extra care of Robert Martin in sickness ..    5 00
                Extra care of Mrs. Acrey in sickness .....    7 00
                Extra care of M. P. Jones in sickness ....    4 00
                                                           _______
                                                           $306 10
                

—be and the same is hereby placed as a credit on the account due by M. H. Denman to Brown county for guard service wrongfully drawn by said Denman—

                For 92 days at $1.50 per day, allowed
                  at February term, 1903, amounting
                  to ................................. $136 50
                For 98 days allowed at the May term
                  1903, at $1.50 per day, amounting to  133 50
                And 40 days allowed at August term
                  1903, at $1.50 per day amounting to    60 00
                                                       _______
                    Total amount due ................. $330 00
                Credit by account presented at present
                  term ...............................  306 10
                                                       _______
                    Balance due county ............... $ 23 90
                

"`S. C. Coffee, County Judge Presiding.'

"(3) I find that on November 22, 1904, the county commissioners' court of Brown county, Tex., found [passed] the following order, to wit:

                     "`Brownwood, Texas, Nov. 22, 1904
                

"`During a regular term of the commissioners' court of Brown county, Tex., begun and holden on the 14th day of November, A. D. 1904, there being present and presiding Hon. S. C. Coffee, county judge, and R. P. Cross, commissioner of Prec. No. 1, D. P. Malone, commissioner of Prec. No. 2, H. M. Boyer, commissioner of Prec. No. 3, L. Strohm, commissioner of Prec. No. 4, and W. D. McChristy, county clerk, the following proceedings among others were had to wit:

"`Nov. 22, 1904. It is ordered by the court that M. H. Denman account for board of prisoners be allowed for $224.20, and that $23.90 of same is placed as a credit on balance of account due by M. H. Denman to Brown county for guard service wrongfully drawn by said Denman—

                For 92 days, at $1.50 per day, allowed
                  at the February term, 1903, amount . $136 50
                For 98 days allowed at May term, 1903
                  at $1.50 per day, amounting to .....  133 50
                And 40 days allowed at August term
                  1903, at $1.50 per day, amounting to   60 00

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