Myers v. Colquitt

• Decision Date: 12 December 1914
• Docket Number: (No. 8048.)
• Citation: 173 S.W. 993
• Parties: MYERS et al. v. COLQUITT, Governor.
• Court: Texas Court of Appeals

173 S.W. 993

MYERS et al. v. COLQUITT, Governor.

(No. 8048.)

Court of Civil Appeals of Texas. Ft. Worth.

December 12, 1914.

Rehearing Denied January 16, 1915.

Appeal from District Court, Jones County; John B. Thomas, Judge.

Action by O. B. Colquitt, Governor, for the use and benefit of Jones County, against M. P. Myers and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Walter S. Pope and Chapman & Coombes, all of Anson, and J. M. Wagstaff, of Abilene, for appellants. Higgins & Hamilton, of Snyder, Clint Chambers and Jas. P. Stinson, both of Anson, and B. F. Looney, of Austin, for appellee.

BUCK, J.

This suit was filed in the district court of Jones county, Tex., against appellants by O. B. Colquitt, Governor of the state of Texas, for the use and benefit of Jones county, Tex. The petition alleged, among other things, that M. P. Myers was the duly elected county clerk of Jones county, Tex., for the years 1908 to 1910, and that the other defendants were sureties on his bond as county clerk; that said Myers duly qualified as such clerk; and that his bond was approved, and one J. E. Tyson was his duly appointed and acting deputy. The petition also alleged that, by virtue of his election as clerk and his acting as clerk, he was charged with the duty of keeping the minutes of the commissioners' court of Jones county and issuing warrants drawn upon the treasury of the said county. It further alleged that the said J. E. Tyson, as deputy clerk, issued a number of fictitious and forged county warrants upon printed forms used for issuing county warrants and sold the same to divers and sundry persons, who later presented them to the county treasurer, by whom said warrants were paid, and thereby the county was defrauded out of a large sum of money. It was further alleged: That it was a part of the duty of M. P. Myers, as clerk of the county court of Jones county, to be ex officio clerk of the commissioners' court, to attend its sessions, and to issue all notices, writs, and other processes of said court, and to keep the records, books, papers, and proceedings of said court, and to see that the same were properly indexed and arranged, and generally to do and perform such other duties as are, or may be, imposed on him by law as clerk of said court. That it became his duty to sign and attest under an official seal all warrants and script issued or ordered issued by the commissioners' court of Jones county against the treasury of said county, and to keep a correct record of accounts allowed by said court, the name of the person to whom allowed, the amount ordered to be paid thereon, the date on which it was allowed, the purpose for which the allowance was made, the fund on which the same should be drawn, and to issue script and warrants against the county treasury of Jones county signed by the clerk officially, dated and sealed, and to keep a correct record thereof either in the general minutes of the commissioners' court of Jones county, or in a book called "Minutes of Accounts Allowed," in which said accounts were kept by said M. P. Myers, as said ex officio clerk of the commissioners' court of Jones county. It was further alleged in said petition that the county treasurer kept a record of accounts, warrants, and the registered indebtedness of the county, and at the end of each month he filed with the clerk of the county court a report in writing showing the amount of the claims registered during that month, and that it was the duty of the clerk of the county court with whom such report is filed to enter the same upon the finance ledger under the head of "Registered Indebtedness of the County," and to keep a separate account of each class of the indebtedness; that the treasurer of Jones county did this by filing his report with the principal, M. P. Myers; that these reports included the false, fraudulent, fictitious, and forged warrants, accounts, and script issued by J. E. Tyson as deputy county clerk aforesaid; and that Tyson knew that these reports included the false warrants, and that the entries on the finance ledger of the same were false, fraudulent, and fictitious and constituted a breach of the clerk's bond, in that there was a failure to keep the finance ledger which was a duty required of him by law. It was further alleged in said petition that, by reason of the issuing of these fraudulent warrants by the deputy county clerk, who was authorized by law to issue genuine warrants of the county, the primary cause of Jones county's loss is attributable to the breach of the county clerk's bond through his deputy, and that by reason of the failure of the clerk to keep the proper reports of all the proceedings of said court, and by reason of his failure to prevent the registration and payment of said warrants and script, which prevented the detection of the false and fraudulent character of the same, a secondary cause of the loss to Jones county was constituted; and that all of which facts as set out above constituted the proximate cause of Jones county's loss of the sum of $563.55, for all of which said defendants were liable.

Defendants answered by a general demurrer and general denial and special exceptions, and specially denied that said M. P. Myers and his deputy, J. E. Tyson, had any other powers than those conferred upon them by law, and denied that they, or either of them, had any authority or power to issue warrants of the character described until the accounts and claims had been duly allowed by the commissioners' court, and that, if said J. E. Tyson did issue any such warrants without such claims being duly allowed by the commissioners' court, he did so, not in his official capacity, but in a private and personal capacity and on his own responsibility, and that neither the defendant M. P. Myers, nor his bondsmen, were liable for any loss to Jones county resulting therefrom. And they further pleaded that even though said J. E. Tyson did issue the alleged forged and fictitious warrants, and that they were thereafter paid by the county treasurer of Jones county, the proximate cause of the loss to Jones county was the negligence of the county treasurer in paying said warrants, in the absence of any allowance by the commissioners' court, and that therefore the county treasurer was liable, and not these defendants.

The court overruled the general demurrer, and a trial was had, the cause being submitted to the jury, and a verdict was returned in favor of the plaintiff for the amount sued for. The defendants filed a motion for new trial, which was overruled, and, from said action of the court, perfected the appeal to this court.

Appellants complain, in the first assignment of error, of the action of the trial court in overruling defendants' general demurrer to the plaintiff's petition; and, in their second assignment, of the action of the trial court in refusing to give a peremptory instruction for the defendant M. P. Myers, and, in their third assignment, for the failure of the trial court to give a peremptory instruction in favor of the bondsmen — which three assignments we will consider together. The questions presented to us for consideration under these three assignments are: First, does the petition disclose a cause of action in favor of Jones county as against M. P. Myers; and, second, does said petition disclose a cause of action against the bondsmen of said M. P. Myers; and, third, does the evidence sustain the judgment against said M. P. Myers and his bondsmen?

The appellants cite us, under their first assignment of error, to the following authorities: Maddox v. Hudgeons, 31 Tex. Civ. App. 291, 72 S. W. 415; Brown v. Wallis, 101 S. W. 1069, 1070; Sneed v. McFathridge, 43 Tex. Civ. App. 592, 97 S. W. 113; Gold v. Campbell, 54 Tex. Civ. App. 269, 117 S. W. 463; Whyte v. Mills, 64 Miss. 158, 8 South. 171; State v. Thomas, 88 Tenn. 491, 12 S. W. 1034. The first four cases cited are cases involving the liability of peace officers for the acts of their deputies and of bondsmen of such peace officers for the acts of their principal and his deputies. It is well established to be the law of this state by these authorities, and many others which might be cited, that bondsmen upon official bonds are not liable for the acts either of their principal or of his deputies when not performed within the scope of their official authority, but that they are liable for any abuse of the authority vested in such officials.

In the case of Maddox v. Hudgeons, above cited, a burglary having been committed in a distant part of Jack county, the sheriff (appellant in the case) left the following morning for the place of burglary. One Walter Isbell was the acting and qualified deputy sheriff, and soon after the sheriff's departure notified the constable of that precinct of the burglary and told him that the sheriff wanted him (the constable) to assist in arresting the parties committing the burglary. Soon thereafter on the same morning, said constable, without any direction on the part of Isbell, the deputy, and without any warrant or authority of law whatever, arrested one Hudgeons and another person in the town of Jacksboro on suspicion alone, and forthwith took them to the sheriff's office where said Isbell was. Isbell had received a description of the parties who were supposed to have committed the burglary, and the constable, after he arrived at the sheriff's office, inquired of Isbell if he should place appellee and the other party in jail. Isbell replied that he should, and thereupon the constable, without warrant or authority, took Hudgeons and the other party to the jail. The jailer being absent, the constable procured the keys from the jailer's wife and locked the alleged parties up in jail, where they remained some hours and where thereafter released by the jailer upon the order of Isbell. The court found that the jailer knew nothing of the imprisonment until noon of the day of said...