Gussett v. Nueces County

• Decision Date: 21 December 1921
• Docket Number: (No. 231-3411.)
• Parties: GUSSETT et al. v. NUECES COUNTY et al.
• Court: Texas Supreme Court

Page 857

235 S.W. 857

GUSSETT et al. v. NUECES COUNTY et al.

(No. 231-3411.)

Commission of Appeals of Texas, Section B.

December 21, 1921.

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

Action by Nueces County and others against H. D. C. Gussett and others, wherein Nueces County Drainage District No. 2 was impleaded. Judgment for defendants was reversed by the Court of Civil Appeals (213 S. W. 725), and defendants bring error. Judgment of Court of Civil Appeals reversed, and that of district court affirmed as recommended by the Commission of Appeals.

Dibrell & Masheim, of Seguin, and G. R. Scott, Boone & Pope, and Kleberg, Stayton & North, all of Corpus Christi, for plaintiffs in error.

Terrell & Terrell, of San Antonio, and James M. Taylor, of Corpus Christi, for defendants in error.

POWELL, J.

In the fall of 1906, H. D. C. Gussett was duly elected county treasurer of Nueces county. In due course thereafter, he qualified by taking the prescribed oath and filing bond as required by law. He continued to serve Nueces county in that capacity until early in 1917, or for five terms of two years each. During his tenure of office, he filed a personal bond for each two years term. Some sureties signed each bond. In some instances, one or more of the sureties signed only one or more bonds. In no case were the bonds signed by exactly the same people.

At the end of his official career, he turned over to his successor in office the sum of about $52,000, being the amount shown to the credit of the treasurer officially in the First State Bank of Corpus Christi, which was the county depository. The new county judge and commissioners' court thereafter caused an audit of the treasurer's account to be made by an expert accountant, Mushaway. In a rather complimentary report, so far as reference is made to the former officers of the county, he did not charge any shortage in the treasurer's account, but his report finally led to the filing of a suit by Nueces county et al. against Gussett and the various sets of sureties on his several official bonds.

A total shortage of something less than $20,000 was alleged, provided it should be determined that Neuces county drainage district No. 2 be entitled to recover, from the $52,000 in the county treasury aforesaid, the sum of $11,466.48, which it was claiming. On the other hand, if Nueces county should be found not to be indebted to the drainage district, then the shortage in Gussett's accounts would be only something in excess of $6,000.

The plaintiffs in the court below sued each set of sureties for a definite amount, alleging that specific sum to be the shortage for the term covered by the bond executed by them. The aggregate of these claims, as pleaded, was about $20,000. Then, in the alternative, several other prayers were made for recovery, but all upon the alleged theory that it was very difficult to tell when the shortage occurred. In these latter alternative prayers, the county sued the various bondsmen for the entire shortage, or each set of sureties for such part of the shortage as they might be found liable for under the facts in evidence.

The defendant sureties in the trial court not only denied the existence of any shortage, as did Gussett, but asked for reimbursement from the latter and for contribution over against each other. Some of the sureties alleged a defense of limitation.

The drainage district, being impleaded by the county, answered and prayed recovery against the then county treasurer for its alleged deposit of over $11,000, alleging that its deposit was not a part of any shortage in Gussett's accounts. In the alternative, the drainage district asked that it be awarded a sufficient portion of any shortage recovered against Gussett to reimburse it for its deposit.

The case was tried before a jury upon special issues. Many issues were submitted, but the jury's answer to the first rendered unnecessary an answer to any of the others. The jury was charged as follows:

"It is the duty of a county treasurer to receive all moneys belonging to the county from whatever source they may be derived, and pay and apply the same as required by law, in such manner as the commissioners' court of his county may require and direct, and all sums of money so paid out by a county treasurer under the requirements or direction of the commissioners' court, or paid out by a county treasurer for the benefit of the county under the direction of any member of the commissioners' court or county judge and afterwards approved and ratified by the commissioners' court, must be taken as payment according to law."

Upon the basis of this charge, the following special issue was submitted to the jury:

"Do you find from the evidence that the defendant Gussett, as treasurer of Nueces county, was short in his accounts with said county at the end of the time of his office?"

The jury answered the quoted issue in the negative, and, under instructions of the court, proceeded no further. Judgment was entered, in compliance with said finding of the jury, in favor of Gussett and his sureties. Upon appeal by the county, the judgment of the district court was reversed and remanded by the Court of Civl Appeals. See 213 S. W. 725.

Gussett and his sureties obtained a writ of error, upon proper application therefor, from the Supreme Court, and the case has now been assigned to us for review and recommendation.

Several of the assignments of error sustained by the Court of Civil Appeals relate to the admission of certain testimony which showed that Gussett, for a number of years, as purchasing agent under the commissioners' court of his county, had purchased supplies necessary for the county upon the requisition of the county judge or individual commissioners, without awaiting the issuance of warrants, in order to give the county the benefit of cash prices; and that thereafter his payments of this kind were regularly reported to the commissioners' court at each term thereof, as required by law; that said court upon every such occasion ratified and approved such payments; that such payments, by reason of such ratification and approval, were legal credits in Gussett's favor.

The Court of Civil Appeals held all such testimony erroneously admitted, because irrelevant and immaterial, for the reason that under article 1509 of Vernon's Sayles' Revised Civil Statutes of Texas, the treasurer could be allowed as legal credits such payments only as were evidenced by formal certificates or warrants; that all other payments made by the treasurer, even for the benefit of the county, were invalid; that such invalid payments could not become binding by any ratification of the commissioners' court of the county. If the Court of Civil Appeals be correct in such a construction of article 1509 of the Statutes, then it correctly held the evidence inadmissible. But, if the trial court was correct in its charge to the jury in line with Gussett's contention, and as quoted hereinabove, then the evidence was admissible. We think the trial court correctly charged the jury and that the evidence was properly admitted.

Article 1509, now under consideration, reads as follows:

"The county treasurer shall not pay any money out of the county treasury except in pursuance of a certificate or warrant from some officer authorized by law to issue the same; and, if such treasurer shall have any doubt of the legality or propriety of any order, decree, certificate or warrant presented to him for payment, he shall not pay the same, but shall make report thereof to the commissioners' court for their consideration and direction."

The Court of Civil Appeals says that by virtue of the above statute the county treasurer can never be given credit for a disbursement, under any circumstances, unless paid out under the terms thereof. On the other hand, Gussett's counsel contend that the article of the statute aforesaid does not apply at all to accounts ordered paid by the commissioners' court itself, but only to accounts claimed by other officers. In support of that contention they refer to articles 1505 and 1507 of Vernon's Sayles' Statutes, which read as follows:

"Art. 1505. It shall be the duty of the county treasurer to receive all moneys belonging to the county from whatever source they may be derived, and to pay and apply the same as required by law, in such manner as the commissioners' court of his county may require and direct."

"Art. 1507. The county treasurer shall render a detailed report at every regular term of the commissioners' court of his county of all the moneys received and disbursed by him, of all debts due to and from his county, and of all other proceedings in his office, and shall exhibit to said court at every such term all his books and accounts for their inspection and all vouchers relating to the same, to be audited and allowed."

Counsel argued with much vigor the contention that the commissioners' court, in the conduct of its own business, is not restricted to the warrant method as provided by article 1509; that article 1505 requires the treasurer to pay out money in such manner as the commissioners' court may require and direct; and that article 1507 clearly shows that ordinary vouchers and accounts in general, and not warrants in particular, are contemplated in handling the business of the court itself. We do not think it necessary to a decision of this case to settle the controversy just set out, for, even if it be conceded, for the purposes of the present case, that article 1509 does apply ordinarily to "all" payments by the treasurer, it is still true, we think, as contended by counsel for Gussett, that payments by a county treasurer for the benefit and purposes of the county in pursuance of his designation and capacity as purchasing agent, made under order of the commissioners' court or upon the requisition of the county judge or commissioners, instead of in pursuance of...