McMulin v. Ellis

• Decision Date: 23 November 1898
• Citation: 48 S.W. 217
• Parties: McMULIN v. ELLIS et al.
• Court: Texas Court of Appeals

48 S.W. 217

McMULIN v. ELLIS et al.

Court of Civil Appeals of Texas.

November 23, 1898.

Appeal from district court, Lasalle county; A. L. McLane, Judge.

Action by John W. McMulin against C. O. Ellis and others. Demurrers were sustained to the petition, and plaintiff appeals. Reversed.

C. C. Thomas and Camp & Camp, for appellant. Lane & Hicks, for appellees.

FLY, J.

This suit was instituted by appellant, and demurrers were sustained to his petition, and he perfected this appeal. It is stated in the petition: That on February 6, 1892, appellant was sheriff and tax collector of Lasalle county. That suit had at that time been instituted by W. N. Hall for the removal of appellant from said office. During the pendency of said suit, on the date above written, appellant was suspended from office by the district judge, and C. O. Ellis was appointed to fill said office during such suspension. That a bond was given by said Ellis, with the other appellees as sureties, conditioned that "if, upon final trial of said cause for the removal of said J. W. McMulin from said office of sheriff of Lasalle county, it should appear that the cause or causes of removal are insufficient or untrue, then that the above-bounden C. O. Ellis shall pay to said J. W. McMulin all damages and costs that he may sustain by reason of such suspension from office." That said cause had been transferred to Bexar county, where, in 1897, over the protest of appellant, who insisted on a trial on the merits, it was dismissed. It was further alleged that the charges against appellant were insufficient and untrue, and that Ellis and his sureties were indebted to him in the sum of the fees collected by said Ellis while occupying the position of sheriff. Appellees filed a general demurrer and four special exceptions, all of which were sustained by the court. The special demurrers are as follows: "(1) And for special exceptions thereto these defendants say: Plaintiff cannot maintain this suit, on the contract declared upon, for punitory damages; as well, that he cannot join in this same suit, and ask a recovery on an express contract and for damages in the nature of smart money. (2) That plaintiff seeks to recover on an express contract, without alleging that the condition precedent named in said contract to such recovery has happened. Plaintiff nowhere alleges that there has been a final trial of said cause for the removal of plaintiff from the office of sheriff of Lasalle county. (3) That plai...