Hetten v. Lane

• Decision Date: 01 January 1875
• Citation: 43 Tex. 279
• Parties: G. W. HETTEN ET AL v. R. N. LANE.
• Court: Texas Supreme Court

43 Tex. 279

G. W. HETTEN ET AL

v.R. N. LANE.

Supreme Court of Texas.

1875.

APPEAL from Travis. Tried below before the Hon. J. P. Richardson.

R. N. Lane, appellee, was the United States collector of internal revenue for the 3d district of Texas; G. W. Hetten, one of the appellants, was appointed his deputy to act for him in the counties of Comal and Hays. This appointment was made on the 27th day of April, 1867, and on that day Hetten, as principal, executed his bond to Lane for the faithful performance of his duties as deputy, with Theodore Kœster, John F. Torrey, and Franz Moureau as his sureties, in the sum of $10,000.

On the 3d day of November, 1871, Lane brought suit in the District Court of Travis county against Hetten and his sureties for a breach of the conditions of said bond, claiming that Hetten, as deputy, had collected, failed to turn over and account for, and had appropriated to himself moneys had and received by virtue of his office, amounting in the aggregate to the sum of $4,857.09. He also filed with his petition an account current between himself and Hetten.

The following portions of the original petition were relied on to give jurisdiction, to wit: “Your petitioner, R. N. Lane, a citizen of Travis county and State of Texas, complaining of Gustavus William Hetten, who signs his name G. W. Hetten, Theodore Kœster, John F. Torrey, and Franz Moureau, the last three of whom are citizens of the county of Comal, while the said Hetten is a transient person, but temporarily residing in the county of Travis, State of Texas, respectfully represents:

1st. That heretofore, to wit, on the ____ day of _____, A. D. 1867, petitioner was duly appointed, commissioned, sworn and qualified according to law, to the office of collector of internal revenue for the third district of Texas.

2d. That while acting as such officer on the 27th day of April, 1867, or a few days prior thereto, your petitioner appointed the said Gustavus William Hetten deputy collector of internal revenue for said third district of Texas, and the said Gustavus William Hetten, having qualified according to law on the said twenty-seventh day of April, A. D. 1867, entered upon the discharge of his said duties as said deputy collector; that, however, previously to entering upon the discharge of his said duties as such deputy collector, he made, executed, and delivered to petitioner his certain bond or obligation in writing, whereon and wherein the said Theodore Kœster, John F. Torrey, and Franz Moureau became and are sureties, each and all of whom executed and delivered the said bond or obligation in writing to your petitioner, a copy of said bond being hereto attached as exhibit No. 1, and prayed to be taken as a part hereof.” The conditions of the bond were as follows: “Now, therefore, if the said Gustavus William Hetten shall truly and faithfully execute and discharge all the duties of the said office according to law, and shall justly and faithfully account for and pay over to the said Richard N. Lane, in compliance with the orders and regulations of the said Lane, all public moneys which may come into his hands or possession, then the above obligation to be void and of no effect, otherwise it shall abide and remain in full force.”

The petition then set out the breaches of the condition of the bond and prayed judgment for all sums found due, for costs, and for general relief.

On the 8th of February, 1872, Hetten filed his plea in abatement to the jurisdiction of the court, alleging that his residence and domicile were at the date of the institution of the suit, and for six years before, in Comal county, Texas. On the same day the other defendants filed their plea in abatement to the jurisdiction of the court, alleging that the petition itself showed that the suit, if brought at all, could only be brought in Comal county.

On the 16th of February, 1872, plaintiff amended his petition, and alleged that Hetten's residence at the time of bringing the suit, and for a long time anterior thereto, was in Travis county; and by another amendment, filed on same day, he alleged that the obligation of Hetten was to be performed in the county of Travis, where was the home, residence, and domicile of the plaintiff, R. N. Lane.

There was a trial upon these pleas in abatement, and a verdict of a jury finding Hetten's residence on the 3d of November, 1871, to be in Travis county. There was a judgment against defendants, a motion for a new trial overruled, and an appeal. The cause was then continued with leave to defendants to plead over to the merits. On the 18th March, 1872, defendants filed their answer, consisting of a general demurrer and several special exceptions, also a general denial and pleas of payments, and other matters in avoidance of the action.

On the 9th of October, 1873, the sureties amended their answer and alleged that, according to the account exhibited by the plaintiff in his petition against defendants, it appeared that a large portion of the amount claimed by Lane of Hetten had accrued and was due prior to the date of the bond aforesaid, and that they, the sureties, were not liable for any portion of the indebtedness due prior to the date of said bond.

On the 15th day of February, 1873, the case was tried and the following verdict rendered by the jury, viz: “We, the jury, find for the plaintiff in the sum of three thousand dollars, with interest at the rate of eight per cent. per annum from the 1st January, 1869, to present time,” and judgment was rendered against all the defendants in accordance with this verdict.

The defendants made a motion in arrest of judgment and for a new trial, which being overruled, they appealed.

The evidence on the plea in abatement was substantially as follows: Defendant read in evidence a certified copy of a petition filed by plaintiff Lane against defendants in this identical cause of action in the Circuit Court of the United States for the western district of Texas, on the 13th May, 1870, in which Lane alleged the residence of Hetten, as well as his co-defendants, to be in Comal county, Texas. Hetten, the defendant, testified that his domicile was in Comal county, and that he had resided in said county since 1866; that he had not been regularly employed in Comal since January, 1870, at which time he went to Houston, returning to Braunfels in May. Afterwards he had been employed at intervals in Galveston, Houston, and Austin, up to the present time; that in 1871 he went to Galveston and worked about six weeks in a cotton press, and from there he went to Austin. He had no property at Braunfels but some shares in the woolen factory, but had a room at Torrey's house there; that in June, 1871, he was indicted in the federal court at Austin, and that Lane had also sued him and his sureties in said court; that the indictment grew out of the same matter; that he intended, as soon as these cases were settled, to go back to Braunfels, if he could find anything to do; that he had never told Major Walton that he was living in Austin; that he had told Walton that he could not get away from Austin, and, furthermore, that he was staying at Austin for the purpose of giving confidence to his bondsmen, Walton, Moureau, and White, for his appearance at the federal court to answer the indictment; that they had never expressed any distrust of him, or asked him to remain; that he had been employed about six weeks at Austin by a Mr. Church, and had also tried to get employment from others; that he wanted to get employment while waiting a settlement of his difficulties in the federal court at Austin; that he did not know when he would go to Braunfels, or what he would do when he got there; that he had no home there to which he could go, or at which he could stay without paying board.

W. M. Walton testified for plaintiff that about the 1st or 2d of November, 1871, he met Hetten on the avenue in Austin, and asked him, where is your home? To which Hetten replied, I am living here; I am not as well off as before; I haven't a hole to go into, and have not soles to my shoes. That he asked the question with a view to bringing this suit, whether in Travis or Comal county, and the answer of Hetten to his question determined him as to where the suit should be brought, and that he accordingly brought the suit in Travis.

The exhibit, made part of the petition, showing, or purporting to show, the state of the account of defendant with plaintiff, contained many items extending over the official acts of Hetten prior to the execution of the bond sued on. The account showed at that date a large balance due Lane, to which sum, and to the evidence sustaining the same, the sureties objected in their pleadings as not liable, and to the testimony as irrelevant. The testimony was conflicting as to many credits claimed by Hetten. The facts on the final trial sufficiently appear in the opinion.

The court instructed the jury as follows:

“This is an action to recover of the defendants (Hetten as principal and the others as sureties on a bond) certain moneys collected by the defendant, Hetten, and not paid over or accounted for by him.

If you find from the evidence that Hetten collected any money, as a deputy collector of internal revenue under the plaintiff or by the appointment of plaintiff, which he has not paid over or legally accounted for, then he is liable to the plaintiff for the amount not paid over or accounted for, with interest at the rate of eight per cent. per annum from the 1st of January, 1869, to the present time.

The defendant is not liable for the amount of the assessments put into his hands, but is liable for all the money actually collected by him and not paid over. The sureties are liable jointly with Hetten for all moneys collected by Hetten and not paid over after the date of the bond.

If you find that the evidence and the state of the account between the plaintiff and Hetten requires it, you may return...