Jeff Davis County v. Davis

• Decision Date: 18 January 1917
• Docket Number: (No. 629.)
• Parties: JEFF DAVIS COUNTY v. DAVIS et al.
• Court: Texas Court of Appeals

192 S.W. 291

JEFF DAVIS COUNTY v. DAVIS et al.

(No. 629.)

Court of Civil Appeals of Texas. El Paso.

January 18, 1917.

On Motion for Rehearing and to Certify, February 15, 1917.

Appeal from District Court, Jeff Davis County; Joseph Jones, Judge.

Suit by Jeff Davis County against J. B. Davis and others. From a judgment for the County for a limited amount, it appeals. Cause affirmed.

C. E. Mead, of Marfa, and J. R. Hill, of Alpine, for appellant. Hudspeth, Dale & Harper, of El Paso, for appellees.

HIGGINS, J.

J. B. Davis was sheriff of Jeff Davis county from November, 1904, until November, 1914. During that time various sums of money were paid to him out of county funds upon orders of the commissioners' court of the county in payment of claims against the county presented by Davis in his capacity as sheriff. This suit was filed by the county against Davis and the sureties upon the official bonds given by him during his incumbency of the sheriff's office to recover such moneys. It was alleged that during Davis' several terms of office the commissioners' court allowed various claims presented by him as sheriff against the county and ordered same paid; that the claims were not just and legal ones against the county, in some instances being for services for which the law did not authorize the county to pay the sheriff, and in other instances the amounts allowed and paid were in excess of the amounts allowed by law. One of the items upon which recovery was sought was for sums of money allowed by the commissioners' court and paid for jail guards. It was alleged that no jail guards were employed by Davis as sheriff, and that the moneys allowed and paid to him for that purpose were appropriated by him to his use and benefit. With reference to the jail guard items these allegations were made:

"In regard to the several sums paid the defendant J. B. Davis for jail guards as aforesaid, plaintiff makes the following distinct allegations:

"(A) It was never necessary at any time during the time defendant J. B. Davis served as sheriff aforesaid to employ jail guards or any other guards for the safe keeping of prisoners in his care and custody or for the safe-keeping of plaintiff's jail.

"(B) That no emergency in regard thereto ever existed and that no judge of Jeff Davis county ever authorized the defendant to employ such guards or approved the employment thereof.

"(C) That the commissioners' court of Jeff Davis county never authorized the defendant to employ such guards or approved the employment thereof.

"(D) That during most of the time in which defendant J. B. Davis was sheriff of Jeff Davis county and for which he charged and collected from plaintiff the sum of $1.50 per day for jail guards there were no prisoners in his care and custody or confined in the jail of said county.

"(E) That, as a matter of fact, the defendant J. B. Davis did not at any time employ jail guards or any other guards, but that he falsely and fraudulently represented to the commissioners' court of Jeff Davis county that he had done so.

"(F) That, as a matter of fact, none of the several sums of money paid to the defendant J. B. Davis as jail guards as aforesaid or any other sums was ever paid to any one for services as guards or jail guards, and in fact no one ever served Jeff Davis county in such capacity, and that the defendant J. B. Davis appropriated said several sums for his own use and benefit.

"(G) That the several claims presented to the commissioners' court of Jeff Davis county by the defendant J. B. Davis for jail guards as aforesaid are not such claims as the plaintiff is bound by law to pay, and that they were not presented to said court in a form and manner sufficient to invoke the jurisdiction of said court, and all the acts of said court in approving, allowing, and ordering them paid out of the funds of Jeff Davis county are without the authority of law, unauthorized, void, and of no effect.

"(H) That said court in approving, allowing, and ordering said claims paid out of the funds of Jeff Davis county acted in good faith, but under a mistake of fact and without a knowledge of the law, and said claim being such the payment of which plaintiff was not in law bound, their acts in approving, allowing, and ordering them paid out of the funds of the county, as well as the payment thereof, are unauthorized, without the warrant of law, and unlawful."

And in a trial amendment these additional allegations were made respecting the jail guard items, viz.:

"Because said bills and claims were not made in the form and manner required by article 1148 of the Code of Criminal Procedure of the State of Texas 1911, in the following particulars, to wit:

"(1) Because said bills and claims did not state the name of the prisoner or prisoners for whose care and safe keeping said guard was employed, if any there were.

"(2) Because they did not give or set out each item of expense incurred in the safe-keeping of said prisoners, if any there were, nor the date thereof.

"(3) Because said several bills and claims did not give names of each guard so employed, if any there were, nor the length of time said guards were thus employed, nor the purpose of such employment."

The items upon which a recovery was sought, for convenience, will be grouped as follows:

(1) For moneys paid on claims presented for postage stamps used by the sheriff in his official business; for expenses incurred by him for telephone service in transacting official business; for the hire of automobiles used in the transaction of his official business; expenses of a trip to San Antonio to attend a meeting of the sheriffs' association.

(2) For moneys paid on claims for attending upon the sessions of the commissioners' court at rate of $2 per day and on claims for serving notices of election and other expenses incurred in connection with the holding of elections in the county.

(3) For moneys paid on account of jail guards as aforesaid.

It was alleged that an annual sum ($300 from November, 1904, to May, 1907, and thereafter $400) was allowed and paid Davis as ex officio compensation for summoning jurors, serving election notices, notices to road overseers, and doing all other public business not otherwise provided for.

Davis and the sureties presented certain exceptions to the petition which were sustained. The exception of the sureties was based upon the theory that the liability of Davis, if any, was not based upon his official bond, and that therefore the sureties were not liable. The exceptions of Davis presented two theories, viz.:

(1) That the items upon which recovery was sought were barred by the two-year statute of limitation.

(2) That the action of the commissioners' court in allowing and ordering paid the claims for jail guards was conclusive and could not be attacked in this collateral proceeding.

The sureties were dismissed upon the sustaining of the exception presented by them. The effect of sustaining Davis' exceptions was to eliminate most of the items upon which a recovery against him was sought. After the exceptions indicated were sustained, the cause proceeded to trial before the court without a jury and judgment was rendered in favor of the county against Davis in the sum of $214.10. From this judgment the county appeals, assigning as error the court's action in sustaining the exceptions. The appeal presents only three questions, viz.:

(1) Are the sureties upon Davis' official bond liable to the county for the items enumerated?

(2) Was the action of the commissioners' court conclusive and final in allowing the claims for jail guards and ordering same paid so as to preclude inquiry into the correctness of its action in so doing in this collateral proceeding?

(3) Does the two or four year statute of limitation apply to the recovery sought herein?

These questions will be disposed of in the order in which they are stated.

The official bond of a sheriff is conditioned:

"That he will account for and pay over to the persons authorized by law to receive the same all fines, forfeitures, and penalties that he may collect for the use of the state or any county, and that he will well and truly execute and due return make of all process and precepts to him lawfully directed, and pay over all sums of money collected by him by virtue of any such process or precept to the persons to whom the same are due, or their lawful attorney, and that he will faithfully perform all such duties as may be required of him by law."

It requires no argument to demonstrate that the sheriff's bond does not cover any of the items sued for unless they be embraced within the scope of the provision:

"That he will faithfully perform all such duties as may be required of him by law."

In determining the scope of this provision, as it affects the rights of the sureties, it may be noted at the outset that:

"The liability of sureties is a matter of strict law, and cannot be extended by implication or intendment." State v. Evans, 32 Tex. 201; Wood et al. v. Hollander, 84 Tex. 394, 19 S. W. 551.

In 2 Brandt on Suretyship & Guaranty (3d Ed.) par. 627, it is said:

"The sureties on an official bond are, as a general rule, only liable for such sums of money as their principal may lawfully receive by virtue of his office."

And in Heidenheimer v. Brent, 59 Tex. 533, it was said:

"To charge the sureties on a sheriff's bond, the act complained of must not only be one which he might rightfully do as sheriff, but which must be actually done by him as sheriff, under a claim of right to do the act as such officer."

This statement of the law is the application of a rule by which the acts of a sheriff for which his sureties may be held liable can be distinguished from those acts for which they will not be held liable. The former are termed acts done "virtute officii," and the latter "colore officii." The distinction is this: Acts done "virtute officii" are when they are within the authority...