Eberstadt v. State
| Decision Date | 17 December 1898 |
| Citation | 49 S.W. 654 |
| Parties | EBERSTADT et al. v. STATE ex rel. ARMISTEAD, Judge.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from district court, Marion county; J. M. Talbot, Judge.
Proceeding by the state of Texas, at the relation of J. A. Armistead, county judge of Marion county, for the removal of E. Eberstadt and others from their respective offices as county commissioners. From a verdict and judgment against E. Eberstadt and J. R. Hedges, defendants, they appeal. Affirmed.
L. S. Schluter, Geo. T. Todd, and J. H. Culberson, for appellants. Armistead & Prendergast and Sheppard & Jones, for appellee.
On May 1, 1897, J. A. Armistead, county judge of Marion county, Tex., instituted this proceeding, in the district court of that county, to remove from their respective offices, as county commissioners, E. Eberstadt, J. R. Hedges, and J. D. Little. The election and qualification of each of the defendants were properly averred and proven. It was alleged that at the same election John M. Harper was elected to the office of county treasurer of Marion county. The petition charged that the defendants in their official capacity, in the month of December, 1896, after their election, conspired together, and with said Harper, to convert to the use and benefit of said Harper all the money which was then in his hands, and all that might thereafter come into his hands, as county treasurer of said county, by means of certain official acts to be done and performed by said commissioners. The petition set out the different things which it was charged the defendants had agreed with the said Harper to do officially, and which they had done, in order to enable him to convert the said funds to his own use. The defendants answered by general demurrer and general denial.
The cause was tried on July 1, 1898, before a jury, which resulted in a verdict finding all the grounds set forth in the petition to be true against E. Eberstadt and J. R. Hedges, and not sustained as to J. D. Little. From this judgment the defendants E. Eberstadt and J. R. Hedges have duly prosecuted an appeal to this court.
We are confronted at the threshold of this case with this question: Should this court pass upon this appeal? The suit is to remove officers elected to the office of county commissioner at the general election held in November, 1896. We take judicial notice of the fact that there was a general election held for said office in November, 1898, and that the terms of officers elected to that office in November, 1896, have expired. It has been held that, where the term of office has expired from which an officer is sought to be removed, the decision of the court upon appeal would be useless and inoperative. Gordon v. State, 47 Tex. 208; Lacoste v. Duffy, 49 Tex. 767; State v. Loomis (Tex. Civ. App.) 29 S. W. 415; Robinson v. State (Tex. Sup.) 29 S. W. 649. In the case last cited, upon motion for rehearing, the contention was made that the judgment of the trial court, if permitted to stand, would be a bar to a suit for the recovery of the fees of the office upon the bond of the person appointed to discharge the duties of the office during the temporary suspension of the officer sought to be removed. Our supreme court states that there is force in this contention. The question is left open, but the court strongly intimates that, if the judgment of the trial court could be pleaded in bar to a suit for the fees, then the appeal should be entertained. 29 S. W. 1063. The condition of the bond is such that we think it clearly appears that the judgment upon the petition for removal could be pleaded in bar to a suit by either of the appellants upon the bond. The causes and manner of removal are set forth in articles 3534 and 3545 of the Revised Statutes of 1895. Article 3550 provides that the district judge may, if he sees fit, suspend temporarily from office the officer against whom the petition is filed, and appoint, for the time being, some other person to discharge the duties of the office. It provides that such person shall execute a bond conditioned "to pay the person so suspended all damages and costs he may sustain, * * * in case it should appear that the cause or causes of removal are insufficient or untrue." This chapter seems to have provided a system of procedure for the removal from office of persons guilty of official misconduct in office. The giving of the bond and the authorizing of the suit thereon is a part of such system. If, in the proceedings for removal, the causes for removal are found insufficient or untrue, then recovery can be had upon the bond. If true, no recovery can be had. Rev. St. 1895, art. 3550; Robinson v. State (Tex. Sup.) 29 S. W. 1063; McMullin v. Ellis (Tex. Civ. App.) 48 S. W. 217.
Such being our opinion of the effect of the...
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