Hillman v. Gallagher

• Decision Date: 03 June 1909
• Citation: 120 S.W. 505
• Parties: HILLMAN v. GALLAGHER et al.
• Court: Texas Court of Appeals

120 S.W. 505

HILLMAN v. GALLAGHER et al.

Court of Civil Appeals of Texas.

June 3, 1909.

Rehearing Denied June 24, 1909.

Appeal from District Court, Bowie County; P. A. Turner, Judge.

Action by J. W. Hillman against Dan Gallagher and others. Judgment for defendants, and plaintiff appeals. Affirmed.

J. W. Hillman, in pro. per. Hart, Mahaffey & Thomas, for appellees.

WILLSON, C. J.

The suit was by appellant against appellee Dan Gallagher on his bond as a retail liquor dealer and against appellees J. S. Johnson and D. Sullivan as the sureties on said bond. The trial resulted in a verdict and judgment in favor of appellees.

Before engaging in the sale of intoxicating liquors to be drunk on his premises, appellee Gallagher was required by the act of 1901 (Gen. Laws 1901, p. 314, c. 136) to enter into a bond payable to the state of Texas, conditioned, among other things, that he would not "sell nor permit to be sold in his house or place of business, nor give nor permit to be given, any spirituous, vinous or malt liquors or medicated bitters capable of producing intoxication, to any person under the age of twenty-one years," etc., and, further, that he would not "permit any person under the age of twenty-one years to enter and remain in such house or place of business." In his original petition filed August 1, 1904, appellant alleged that appellee had duly entered into such a bond, and on April 28, 1902, and again on December 26, 1902, had violated the conditions thereof specified by permitting his (appellant's) minor son to enter and remain in his (appellee's) place of business and by selling said minor intoxicating liquor. In his first amended petition filed March 5, 1906, appellant alleged a violation by appellee of his bond on December 26, 1902, as in his original petition, and similar violations on April 25 and April 28, 1903. In his second amended petition, on which the trial was had, filed September 24, 1906, appellant alleged violations of the bond as set out in his first amended petition. The court sustained exceptions to the second amended petition on the ground that all the causes of action alleged, except the one for the breach of the conditions of the bond on December 26, 1902, appeared to be barred by the two years' statute of limitations. Appellant insists that his suit was upon a contract in writing, to wit, appellee's bond as a liquor dealer, and that therefore the court erred in sustaining the exceptions. We do not think the contention can be sustained. In Johnson v. Rolls, 97 Tex. 453, 79 S. W. 513, it was distinctly held by the Supreme Court that the cause of action in favor of a person aggrieved by a violation of a condition of the bond died with the liquor dealer. To have reached such a conclusion that court must have been of the opinion that the cause of action was one not evidenced by or founded upon a contract, in writing or otherwise, for, if the cause of action could be referred to a contract, it is clear it would have survived the death of the liquor dealer, and after his death an action could have been maintained against the sureties on his bond and against those who succeeded to his estate. 21 Ency. Plead. & Prac. p. 322. The effect of the conclusion reached by the Supreme Court in that case we think was to overrule State v. Williams, 10 Tex. Civ. App. 349, 30 S. W. 477, and State v. House, 10 Tex. Civ. App. 362, 30 S. W. 479, so far as same might be entitled to be regarded as authority for holding that a suit like appellant's was on a contract. If the action was not on a contract, subdivision 1 of the four years' statute of limitations invoked by appellant could not have been applied to it, for that provision of the statute applies only when the action is "for debt where the indebtedness is evidenced by or founded upon any contract in writing." Sayles' Ann. Civ. St. 1897, art. 3356, subd. 1.

But unless subdivision 4, art. 3354, Sayles' Ann. Civ. St. 1897, should be applied to the causes of action covered by the court's ruling, they must be treated as actions "for which no limitation is otherwise prescribed," and therefore as controlled by article 3358, Sayles' Ann. Civ. St. 1897, requiring such actions to be brought "within four years next after the right to bring the same shall have accrued, and not afterward." If said article 3358 should be applied, then neither of the causes of action alleged in the amended petition was barred by the statute of limitations, and the court erred in sustaining the exceptions, notwithstanding appellant's suit was not evidenced by or founded upon a contract in writing. Therefore it is necessary to determine whether subdivision 4 of said article 3354 applied or not to the causes of action. The parts of the article necessary to be stated are as follows: "There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description: * * * (4) Actions for debt where the indebtedness is not evidenced by a contract in writing." The question would seem to be, then: Were the causes of action set up in the petition for debt within the meaning of the portion just quoted of the statute? In Johnson v. Rolls, supra, the Supreme Court, in determining that a cause of action on a liquor dealer's bond did not survive the liquor dealer's death, held that the sum recoverable by a person aggrieved by a violation of conditions of the bond was a penalty. In Davidson v. Mo. Pac. Ry. Co., 3 Willson, Civ. Cas. Ct. App. § 173, it was held that an action for a penalty was an action of debt, within the meaning of the statute of limitations. In Tel. Co. v. Sullivan, 70 Miss. 447, 12 South. 460, the Supreme Court of Mississippi said: "The word `debts' embraces penalties recoverable by civil action." And see Tel. Co. v. Taylor, 84 Ga. 408, 11 S. E. 396, 8 L. R. A. 189. We are not prepared to dissent from the conclusions reached by those courts, and to say that a suit for a penalty is not a suit for debt within the meaning of the statute of limitations. If it is such a suit, it necessarily follows that subdivision 4 of article 3354 should have been applied to the causes of action set up in appellant's petition, because same were for debts not evidenced by a contract in writing, and therefore that the trial court did not err in sustaining the exceptions referred to.

If it should be objected that the conclusion reached leaves out of consideration the fact that the suit is on the bond, the answer is that, the liability being a statutory and not a contractual one, the suit is on the bond, not as the foundation or evidence of the liability, but merely as security for its enforcement. This view of the question is illustrated by the case of Phillips v. Hail (Tex. Civ. App.) 118 S. W. 191. There the suit was on a constable's official bond for negligently taking a defective claim bond to property which he had levied upon by virtue of an execution issued on a judgment in the plaintiff's favor, and delivered to the claimant in the claim bond. The trial court, it seems, held the suit to be founded upon and evidenced by the constable's official bond, and therefore not to be barred, notwithstanding it was commenced after the lapse of more than two years from the time the property was delivered to the claimant in the claim bond. In reversing the case the Court of Civil Appeals declared the two, and not the four, years' statute to be applicable, "on the principle," it further declared, "that an official bond is simply a collateral...