Houston Cnty. v. Dwyer

• Decision Date: 13 March 1883
• Docket Number: Case No. 1286.
• Citation: 59 Tex. 113
• Parties: HOUSTON COUNTY v. E. B. DWYER ET AL.
• Court: Texas Supreme Court

59 Tex. 113

HOUSTON COUNTY

v.E. B. DWYER ET AL.

Case No. 1286.

Supreme Court of Texas.

Mar. 13, 1883.

APPEAL from Houston. Tried below before the Hon. W. D. Wood.

Suit brought by Houston county against appellees, on the official bond of defendant Dwyer, as sheriff during the years 1870, 1871 and 1872, to recover the amount of school-house taxes which had been levied by the county court and by the board of school directors of the county on the assessed values of taxable property for those years, and which it was alleged Dwyer, as sheriff, had collected and failed to pay over or account for.Prayer for judgment with interest and costs, or in the alternative that if the court should be of opinion that a county court order, appended to the petition, was binding on the parties, or estopped plaintiff from recovering whatever sum of money might be shown to be due, then prayer for the amount declared by the county court to be due, with interest thereon and costs, and for general relief.

The appellees pleaded: 1st.A general denial. 2d.Want of authority in the county of Houston to sue in her name, except for the amount declared by her county court to be due, as shown by the exhibit to petition, etc.

Verdict for the defendants; judgment accordingly.

S. A. Miller, for appellant.

No brief for appellee on file.

WEST, ASSOCIATE JUSTICE.

The action of the court in charging the jury that the effect of the act of the 22d of April, 1871, was to work a release of the sureties of the appellee Dwyer from liability for any default of his after the date of that act is assigned as error.The charge of the court, too, to the effect that the judgment and action of the county court, had under the provisions of the act of February 10, 1874(General Laws, ch. 8, p. 5), was to prevent a recovery of any greater amount than the sum of two hundred and forty-seven 82-100 dollars ($247.82), then ascertained as the amount due, is also assigned as error.

From the examination we have made of the questions raised by these two assignments of error, we are inclined to the opinion that they are both well taken.We do not believe that the effect of the act of the 22d of April, 1871, was to release the sureties after that date, nor do we think the action of the county court, under the act of February 10, 1874, would prevent appellant from recovering the true amount due by appellees.In the view, however, which we have taken of the case, these misdirections of the court become immaterial.

It has always been the rule of this court, from the beginning, not to reverse a case because of an error of the court in its charge, if it appears from the whole record that the jury were not misled by it, and that the final result has in no way been affected by this erroneous action.Armstrong v. Lipscomb, 11 Tex., 654;Hollingsworth v. Holshousen, 17 Tex., 47;Carter v. Eames, 44 Tex., 547, 548; McDonald v. Hancock, MSS.Case of 1845, cited in Alexander's Digest, p. 296.

The jury found by their verdict that the proof failed to show that appellees were indebted, in any amount whatever, to appellant.This issue was fairly and fully submitted to the jury in the charge of the court, and it is quite evident from the record that the verdict of the jury was the result of the failure of appellant to make the necessary proof of indebtedness on the part of appellees.In order to fix the liability of appellees, it was necessary, in addition to the facts shown, to prove something more than was done in this case.It should, at the least, have been shown that the appellee, Dwyer, received the rolls from the proper authorities, and that they were in his hands for collection.The pleadings put this very matter in issue and the proof failed to sustain the allegations of the petition.See authorities cited below.

The appellant's whole evidence consisted of the sheriff's bond, the order of the county court asserting his indebtedness to be two hundred and forty-seven dollars and eighty-two cents ($247.82), and a deposition of the comptroller...