Kempner v. Galveston County

• Court: Texas Supreme Court
• Writing for the Court: Gaines
• Citation: Kempner v. Galveston County, 11 S.W. 188, 73 Tex. 216 (Tex. 1889)
• Decision Date: 05 March 1889
• Parties: KEMPNER <I>et al.</I> <I>v.</I> GALVESTON COUNTY.

11 S.W. 188

KEMPNER et al.

v. GALVESTON COUNTY.

Supreme Court of Texas.

March 5, 1889.

Error from district court, Galveston county.

E. D. Cavin, Co. Atty., and Geo. Mason, for plaintiff in error. McLemore & Campbell, for defendants in error.

GAINES, J.

This suit was brought by Galveston county to recover of W. J. Burk, its former treasurer, and the sureties upon his official bond, certain moneys alleged to have been received, and not to have been paid out or accounted for by him, and also the value of certain securities which came into his hands, belonging to the county, which are alleged to have been converted by him to his own use. An exception was sustained to so much of the petition as sought a recovery for the conversion of the securities, and for certain moneys which belonged to the school fund of the county. The securities and money for which a recovery was denied were the proceeds of the sale of lands donated by the state to the county for the benefit of its public schools. The bond upon which the suit was brought was claimed to be a bond given under article 3435 of the Revised Statutes, in substitution of a former bond given under article 988. The court held that the defendants were not liable under this obligation for the school fund sued for, but there was a verdict and judgment for plaintiff for the moneys not belonging to the school fund which Burk was alleged to have received and not to have paid over or accounted for. The sureties on the bond have appealed, and the plaintiff has brought a writ of error to this court. The appeal and writ of error have been consolidated in this court, and will be disposed of in this opinion.

The questions raised by the defendants' appeal go to the foundation of the whole action, and will therefore be first discussed. The evidence shows that Burk was elected county treasurer in 1884, and gave a bond as required by article 988 of the Revised Statutes. On May 12, 1885, J. C. League, one of the sureties upon the first bond, desiring to be released of further liability, came with Burk before the commissioners' court, and requested to be released therefrom. An order was immediately entered which recited the fact and granted the request, and thereupon Burk tendered the bond sued on in this action, and it was ordered that the bond so tendered be approved, and that the sureties on the former bond be released from further liability. The substituted bond is conditioned that "if the said W. J. Burk, as such county treasurer, shall faithfully execute the duties of his office and pay over according to law all moneys which shall come into his hands as county treasurer from and after 11th day of May, 1885, and render a just and true account thereof to the commissioners' court of Galveston county, Tex., at each regular term thereof, then said obligation shall be null and void; otherwise it shall remain in full force, virtue, and effect." The court held, in effect, that a bond so given was good as a statutory bond, and so charged the jury, and refused an instruction to the effect that unless the bond was accepted and approved after an application by the surety to the commissioners' court asking to be released from the former bond, and after service of notice upon the principal, the bond was invalid. We are of opinion that there was no error in the court's ruling in these particulars. The policy of the statute is to permit the surety upon a county officer's bond to terminate his liability upon the obligation at any time. Rev. St. art. 3435. The right is given absolutely. But, in order to protect the rights of the officer, it is necessary to afford him a reasonable opportunity to give a new bond. For this purpose the statute provides that an application shall be made by the surety, and a notice given to the officer, and a copy of the application served upon him. Id. The provision is made solely for his protection. Being informed of the wish of his surety to be released, we see no reason why he may not waive the notice and give the new bond. No possible prejudice can accrue either to him or to the new sureties by such a course. If the attempt were to vacate his office without the statutory notice, a different question would be presented. In the present case the surety upon the old bond appeared before the court with the treasurer, and made known his desire. The treasurer in effect waived the statutory notice, accepted the result, and immediately filed a new bond, which was at once approved. We fail to perceive that either he or his sureties have any right to complain.

It is also insisted that, because the words "from and after the 11th day of May, 1885," appear in the condition of the new bond, it is not valid. If these words had been omitted, the sureties would have been liable for all money which came into the officer's hands as county treasurer after the 11th day of May. The words used neither increased nor diminished their liability, and the legal effect of the obligation is the same as if the words had been omitted.

It appeared by the evidence that Burk kept an account as treasurer with the Island City Savings Bank. N. Weekes was at the time cashier of the bank, and also the tax collector of the county. In turning over to the treasurer money collected by the tax collector for the use of the county, it was the course of dealing between the parties for Weekes, as tax collector, to give Burk a check for the money due the county, taking his receipt as treasurer therefor. The check was immediately indorsed by Burk, and delivered to Weekes, as cashier of the bank, to be placed to Burk's credit. Weekes testified that there was always money in the hands of his drawees to meet the checks. Upon this matter the court charged the jury as follows: "If you believe from the evidence that N. Weekes, in his capacity as tax collector, took receipts from W. J. Burk as county treasurer, for moneys in Weekes' hands as tax collector due Galveston county, and that for such receipts Weekes gave Burk checks on the Island City Savings Bank, or any other bank where said Weekes had money to meet said checks, and you find that Burk indorsed said checks, and returned them to said Weekes as cashier of the Island City Savings Bank, with instructions to deposit said checks to said Burk's credit in said bank, and hold the money represented by said checks for account of said Burk as county treasurer, to be thereafter disbursed for account of Galveston county, you are charged that this would be a payment to Burk of the moneys represented by said checks, and this would be so even if Weekes failed to place said moneys to the credit of Burk upon the books of said bank; and for the purpose of this suit you must regard such checks as money received by Burk as county treasurer, and as creating the same liability of Burk and his sureties, just as if Burk had received gold instead of the checks." It is complained that this charge is upon the weight of the evidence, and is incorrect as a matter of law. If the checks had been drawn upon a bank where Weekes did not have funds to meet them, it may be that they should not be treated as a payment. But if there were funds to meet them when Burk received and receipted for them as money, and turned them over to the cashier of the bank to be placed to his credit, we think this settled the transaction as between the county treasurer and the tax collector. If Weekes as the cashier of the bank failed to give him credit for the checks on the books of the bank, the bank was nevertheless responsible to him for this amount. It then became a matter of indebtedness between him and the bank, and did not change the character of the transaction between him and the tax collector. We think the court did not err in charging that it was a payment. We think, furthermore, that the evidence discloses that Burk did ultimately get credit for all the checks, though one for a large amount was not immediately credited to his account on the books of the bank. It appears that some of his sureties were officers of the bank, and that they, as a matter of precaution, had the entry suspended. We conclude that there is no error in the judgment of which appellants have the right to complain.

The plaintiff in its proceedings under the writ of error complains that the court erred in sustaining exceptions to so much of its petition as sought a recovery for the conversion of the school-fund bonds, and in excluding evidence offered of the receipt by bank of moneys belonging to that fund. The question presented is difficult to determine. The securities and moneys for which a recovery was sought do not belong to what is denominated in our laws as the "available school fund," but are the proceeds of the sale of the school lands which were set apart to the county for school purposes. It seems to be conceded by both parties that the bond required by article 3728 of Revised Statutes is not intended to secure other than the available school fund, and therefore that it does not cover the proceeds of the sale of the county school lands, or the securities in which they may be invested. We think this construction is correct. The article cited expresses the purpose of the bond to be to secure the faithful performance of the duties of the county treasurer under the chapter in which the article is found. We are not left in doubt as to what this refers. That chapter makes the treasurers of the several counties "treasurers of the available public free school fund for the several counties." Rev. St. art. 3725. But it is contended for the plaintiff that the law requires but one other bond, namely, the official bond prescribed in article 988 of the Revised Statutes, and that the treasurer and his sureties upon this bond are responsible to the county for the faithful performance of all his official duties, except as treasurer of the available school fund. It is also claimed that the bond which is provided for in article...