Murray v. Harris

• Decision Date: 22 January 1948
• Docket Number: No. 2776.,2776.
• Parties: MURRAY et ux. v. HARRIS et al.
• Court: Texas Court of Appeals

208 S.W.2d 626

MURRAY et ux. v. HARRIS et al.

No. 2776.

Court of Civil Appeals of Texas. Tenth District. Waco.

January 22, 1948.

Rehearing Denied February 19, 1948.

Appeal from District Court, LaSalle County; H. D. Barrow, Judge.

Action by J. W. Murray and wife, as taxpayers and patrons of the Cotulla Common School District No. 1 of LaSalle County, against Talmadge Harris and others, school trustees, and others to recover school funds allegedly paid out illegally. From a judgment for defendants, plaintiffs appeal.

Affirmed in part, and reversed and rendered in part.

Newton & Archer and Joe Burkett, all of San Antonio, for appellants.

Mann & Mandel, of Laredo, and L. B. Cooper and Willson & Hargrove, all of Cotulla, for appellees.

TIREY, Justice.

Plaintiffs sought to bring this cause of action as a class suit for themselves as taxpayers and patrons of the Cotulla Common School District No. 1, of LaSalle County against the school trustees in their individual capacity and against the Stockmen's National Bank, official depository for such school district, and against other persons therein named who, they alleged, had illegally received such school funds. They sought judgment for the use and benefit of all taxpayers and patrons of such school district similarly situated as plaintiffs, and prayed in effect that the sums of money illegally paid out be returned to said depository and credited to the Cotulla Common School District No. 1 for the use and benefit of the school children and the school district. Julia Harris, one of the named defendants, was not cited and did not appear and answer, and at plaintiffs' request she was dismissed with her costs. Each of the other defendants named filed various special exceptions in an answer to the plaintiffs' pleading and the court sustained certain special exceptions of the defendants to the effect that the plaintiffs did not have the right to maintain the suit. Plaintiffs declined to amend and thereupon the court entered a "take nothing" judgment against all the plaintiffs and they have appealed.

Point No. 5 is: "Where the court sustained special exceptions to plaintiffs' petition and plaintiffs refused to amend, it is error for the court to enter a `take nothing' judgment, the proper judgment in such case being one of dismissal." We sustain this contention. Butman v. Jones, Tex.Civ. App., 24 S.W.2d 796 and authorities collated; Strictland v. Higginbotham Bros., Tex.Civ.App., 220 S.W. 433, point 9, page 436. Under our statutes, the management and control of the affairs of our public schools is vested in trustees who must sue and be sued as a corporate body. See Art. 2676, Title 49, Chap. 11, Art. 2683 of the same Title and Chapter, Art. 2748, Title 49, Chap. 13, Rev.Civ.Stats., as amended, Vernon's Ann.Civ.St. arts. 2676, 2683, 2748. The trustees were not sued as a corporate body. Moreover Art. 339, Title 15, Rev. Civ.Stats., provides: "When it shall come to the knowledge of any district or county attorney that any officer in his district or county entrusted with the collection or safekeeping of any public funds is in any manner whatsoever neglecting or abusing the trust confided in him, or in any way failing to discharge his duties under the law, he shall institute such proceedings as are necessary to compel the performance of such duties by such officer and to preserve and protect the public interest." Plaintiffs' suit contravenes this provision of the statute.

Our view is that the plaintiffs have no justiciable interest in the subject matter they sought to litigate. See Hoffman v. Davis, 128 Tex. 503, 100 S.W.2d 94, 96. Judge Hickman very clearly states the reason why a private...