McFarlane v. Howell

• Decision Date: 15 November 1897
• Citation: 42 S.W. 853
• Parties: McFARLANE, Treasurer, et al. v. HOWELL, County Judge.
• Court: Texas Supreme Court

42 S.W. 853

McFARLANE, Treasurer, et al. v. HOWELL, County Judge.

Supreme Court of Texas.

November 15, 1897.

Certified questions from court of civil appeals of First supreme judicial district.

Action by J. B. Howell, county judge of Jasper county, against W. M. McFarlane, treasurer of said county, and the sureties on his official bond, wherein plaintiff recovered judgment, which, on defendants' appeal, was reversed as to the sureties and affirmed as to the principal; and thereupon judgment was entered against defendant McFarlane and the sureties on the appeal bond for the sum adjudged below, and all costs of appeal. They move for a rehearing, and the question as to the liability of the sureties on the appeal bond is certified for decision. Answered in the affirmative.

Ford, Martin & Jones and Seale & Beaty, for appellants. Votaw & Chester, for appellee.

GAINES, C. J.

The following question has been certified for our determination by the court of civil appeals for the First supreme judicial district:

"Appellee, as county judge of Jasper county, for the use of the county, sued appellant McFarlane as principal and W. C. Price and G. W. Smyth as sureties on an instrument in writing declared on as the official bond of McFarlane, given as treasurer of the county, for the security of the school fund, under article 921, Rev. St. 1895, and payable to the county judge of said county, to recover a sum of money belonging to such school fund, which it was alleged McFarlane had received after the execution of such bond, and had failed, at the expiration of his term of office, to pay over to his successor, or otherwise account for. The defendants pleaded a general denial, and specially that the bond sued on had never been delivered to, accepted or approved by, the obligee, the county judge, and hence was not the official bond of the treasurer. One of the sureties further pleaded that he had signed the bond, and left it in the hands of McFarlane, with the understanding that it was not to be delivered to the county judge until the signature of another solvent surety had been procured, that such signature had not been obtained, and that the county judge knew of these facts when he had accepted the bond, if in fact he had ever done so. This special defense was stricken out on exceptions, and the case was tried on the other issues, and judgment was rendered in favor of plaintiff,—that plaintiff recover of W. M. McFarlane, W. C. Price, and G. W. Smyth the sum of twenty-three hundred and sixty-four and 48/100 dollars, with interest, etc., for all of which let execution issue. The defendants filed a joint motion for a new trial, gave notice of appeal, and, in due time to perfect it, executed and filed the following appeal bond:

"`J. B. Howell, for Use of Jasper County, vs. Wm. M. McFarlane et al. No. 882. In District Court, Jasper County, Tex. March Term, 1897. Know all men by these presents that we, Wm. M. McFarlane and W. C. Price and G. W. Smyth, as principals, and W. J. B. Adams and N. M. Hart and ___, as sureties, acknowledge ourselves to owe and be indebted to J. B. Howell, for the use of Jasper county, in the sum of five thousand dollars, for the payment of which sum, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. The condition of the above obligation is such that whereas on the 5th day of March, 1896, in the district court of Jasper county, Texas, in the above styled and numbered cause, J. B. Howell, county judge of Jasper county, for the use of Jasper county, recovered a judgment against Wm. M. McFarlane, W. C. Price, and G. W. Smyth for the sum of twenty-three...