Hogan v. Hidalgo County, 12368

• Decision Date: 30 January 1952
• Docket Number: No. 12368,12368
• Citation: 246 S.W.2d 709
• Parties: HOGAN et al. v. HIDALGO COUNTY.
• Court: Texas Court of Appeals

Page 709

246 S.W.2d 709

HOGAN et al. v. HIDALGO COUNTY.

No. 12368.

Court of Civil Appeals of Texas, San Antonio.

Jan. 30, 1952.

Rehearing Denied March 5, 1952.

Hartley & Lattimore, Pharr, Eskridge & Groce, San Antonio, for appellants.

Smith & Hubbard, Edinburg, for appellee.

W. O. MURRAY, Chief Justice.

Appellee, Hidalgo County, agrees that appellant Dodge C. Hogan has made a statement as to the nature and result of the suit which is sufficient. We, therefore, adopt such statement, which reads as follows:

'This suit was instituted by Hidalgo County as Plaintiff, hereinafter called 'Appellee', in the 92nd Judicial District Court, Hidalgo County, Texas, against Dodge C. Hogan, former County Clerk of said County; Ballard F. McKee, present County Auditor of said County; Standard Accident Insurance Company, surety on the official bonds of said Dodge C. Hogan as said County Clerk and said Ballard F. McKee as said County Auditor; and Amador Rodriguez, former Deputy County Clerk, for the recovery of certain moneys belonging to Hidalgo County, Texas, and alleged to have been taken, misapplied and converted by the said Defendant, Dodge C. Hogan, during his terms of office as County Clerk of said County. At the beginning of the trial, the cause of action of the Plaintiff, Hidalgo County, against the Defendant, Ballard F. McKee, for failure and neglect of his official duties as County Auditor of said County in allowing said misappropriation of said funds, and Defendant, Standard Accident Insurance Company, as surety on the official bonds of the said Defendant, Ballard F. McKee, was severed from this cause, upon motion of said Appellee, Hidalgo County, and same was filed and docketed as a separate cause of action under a separate docket number and no further proceedings thereunder were had herein.

'The causes of action against the Defendant, Dodge C. Hogan, for taking, misapplying and converting of the sum of $29,072.33 from public funds belonging to Hidalgo County; against the Defendant, Standard Accident Insurance Company, as surety on the official bonds of the said Defendant, Dodge C. Hogan, for the amoung so misappropriated up to the limit of said bonds; and against Defendant Amador Rodriguez, for unlawfully receiving as salary the sum of $541.10, from the funds aleged to have been so misappropriated by the said Defendant, Dodge C. Hogan; were tried to a jury and the Court submitted only such matter to the jury in the form of Special Issues as related to the issue of limitations pleaded by the Defendants, Dodge C. Hogan and Standard Accident Insurance Company, each hereinafter referred to as 'Appellant', or jointly as 'Appellants'. The jury found, in substance, in answer to said Special Issues that at no time prior to four years before the filing of this suit, the Commissioners' Court of Hidalgo County, Texas, or the County Auditor of Hidalgo County, Texas, Ballard F. McKee, had notice of any facts which would have excited inquiry in the mind of a person of ordinary prudence, that, if pursued with reasonable diligence, would have led to a knowledge that discrepancies or defalcations in the account of Dodge C. Hogan as County Clerk existed or had occurred.

'The Court rendered judgment against Appellant, Dodge C. Hogan, for the entire amount of moneys alleged to have been taken and misappropriated by him, with interest on the parts of such sums as were taken and misappropriated during any annual period at the rate of six per cent per annum, from the first day of January following each such annual period; against Appellant, Standard Accident Insurance Company, for the total amount of moneys alleged to have been taken and misappropriated by its principal, Dodge C. Hogan, during each of his three terms of office as said County Clerk (with the exception of the 1947-1948 term of office for which term the judgment against said principal Dodge C. Hogan, exceeded the $10,000.00 bond limit, and said judgment against this Appellant, Standard Accident Insurance Company, as Surety was limited as to the principal amount for such term to $10,000.00), with interest thereon in the same manner and rate as the judgment against Appellant, Dodge C. Hogan, said judgment against the said Appellant, Standard Accident Insurance Company, being joint and several, up to its total amount, with the judgment against Appellant, Dodge C. Hogan; and a judgment against Defendant, Amador Rodriguez (who has not appealed therefrom) for the sum of $330.65, being apart of and not in addition to, and being joint and several with, the judgment rendered against Appellants, Dodge C. Hogan and Standard Accident Insurance Company, jointly and severally.'

Appellant's first contention is that the court abused its discretion in overruling his motion for continuance. This suit was filed on the 10th day of May, 1950, against Dodge C. Hogan, former County Clerk of Hidalgo County for misappropriation of public funds from January 1, 1945, to the 21st day of March, 1950, on which date Hogan resigned as county clerk. On or about March 1, 1950, the Commissioners' Court of Hidalgo County, having received information that there was something wrong with the accounts of Hogan as county clerk, appointed Otis K. Smith to audit his accounts. On March 25, 1950, Hogan resigned. This suit was filed on May 10, 1950, seeking to recover from Hogan the sum of more than $29,000, which it is alleged Hogan was short in his accounts as county clerk. The trial of this case took place almost a year later. Appellant's attorneys contended, however, that they did not have sufficient time within which to prepare their defense. They base this contention upon a number of different circumstances. When the suit was first filed Hogan was represented by a different firm of lawyers who continued to represent him up and until about March 23, 1951, when this firm of lawyers withdrew from the case and shortly thereafter the present attorneys were employed by Hogan. The first law firm filed answers for Hogan and represented him at the pretrial, at which a number of stipulations were entered into. O. K. Smith had completed his audit and it had been available to the attorneys for many months. The County Auditor of Hidalgo County, B. F. McKee, had also made an audit of Hogan's account, which was also available to appellant. It was very similar to the audit made by Smith. Hon. Arthur A. Klein, Judge of the 107th Judicial District who resides at Brownsville in Cameron County, tried this case in Hidalgo County as a visiting judge. He attempted to get the parties to stipulate that O. K. Smith's audit might be regarded as a court audit but was unsuccessful in this, and he then apointed O. K. Smith to make an audit of Hogan's account under the provisions of Rule 172, Texas Rules of Civil Procedure. O. K. Smith made this audit and filed the same about four days before the trial began, on May 7, 1951, and made same available...