Nueces County v. Gussett

• Decision Date: 14 May 1919
• Docket Number: (No. 6222.)
• Citation: 213 S.W. 725
• Parties: NUECES COUNTY et al. v. GUSSETT et al.
• Court: Texas Court of Appeals

213 S.W. 725

NUECES COUNTY et al. v. GUSSETT et al.

(No. 6222.)

Court of Civil Appeals of Texas. San Antonio.

May 14, 1919.

On Motion for Rehearing, June 21, 1919.

Appeal from District Court, Nueces County; W. B. Hopkins, Judge.

Suit by Nueces County and others against H. D. C. Gussett and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

Jas. M. Taylor, of Corpus Christi, and Terrell & Terrell, of San Antonio, for appellants.

Dibrell & Mosheim, of Seguin, and Kleberg, Stayton & North, G. R. Scott, and Boone & Pope, all of Corpus Christi, for appellees.

FLY, C. J.

This suit was instituted by Nueces county and the county judge, county commissioners, and county treasurer against H. D. C. Gussett, Mrs. G. R. Scott, W. E. Pope and wife, Lucille S. Pope, Mrs. Josephine G. Reynolds, Ch. Weil, R. Givens, and John Jordt, alleging that Mrs. Scott was the widow of G. R. Scott, who had signed bonds given by Gussett as county treasurer, in 1910 and 1912, and Mrs. Pope, his daughter; that George J. Reynolds was also a surety on the same bonds, and also on one in 1915, and had died leaving Mrs. Josephine Reynolds, his widow, as his sole devisee and independent executrix. It was further alleged that the other sureties in 1910 were Weil, Givens, and Jordt; in 1912, Weil and Jordt; and in 1915, Givens, Jordt, and Weil. It was alleged that Gussett had failed and refused to make a proper accounting with Nueces county, and was indebted to it in the sum of $20,000. Afterwards an amended petition was filed, making W. J. Robertson, John R. Scott, Sarah Gocher, Nueces County Drainage District No. 2, the First State Bank of Robstown, and C. C. Brendle, George H. Peters, and L. T. Messer, as drainage commissioners of said district, parties to the suit. The drainage district claimed to own $11,466.48 placed by it in the hands of Gussett. The drainage district, at the instance of Gussett and his sureties, was dismissed from the suit. The cause was tried by jury upon special issues submitted by the court, and upon the responses judgment was rendered in favor of Gussett and the sureties on his bonds.

The first assignment of error assails the action of the court in sustaining exceptions of appellees on the misjoinder of the drainage district and its commissioners and depositary as parties defendant in the case. It is the claim of appellants that there was a shortage in the amounts turned over to his successor by Gussett of about $6,003.15, provided the sum of $11,466.48 is not the property of the drainage district, in which event the shortage of Gussett would be $17,469.63. Appellants wished the drainage district made a party in order to determine the shortage of Gussett. In other words, it was alleged that the drainage district was claiming that $11,466.48 of the $52,714.94 paid over by Gussett to his successor was the property of the drainage district, and that appellants are unable to determine how much the shortage of Gussett is, without a determination of the ownership of that part of the money claimed by the drainage district.

This contention seems to be reasonable, and not open to legitimate attack. It seems to be clear that a proper settlement of accounts between appellants and the ex-treasurer and his sureties cannot be had without a settlement of the question of how much money has been paid over to his successor by Gussett, and that cannot be determined until rival claims to the fund have been adjudicated. Suppose that appellants should recover $6,000 shortage from Gussett, and then the drainage district should sue the county and recover over $11,000 from it, either the county would be compelled to stand the loss or another suit against Gussett and his sureties be instituted. The matter between the appellants and the drainage district is one of essential and vital importance in the suit against Gussett. It is not a question of convenience, but of absolute necessity. As quoted by this court in the case of Kunz v. Ragsdale, 200 S. W. 269, "Every case must be governed by its own circumstances," and in this case, as in that, we are of opinion that the circumstances demand the retention of the drainage district in the suit, in order that one trial and one judgment will settle everything connected with the case.

No positive general rule can be formulated as to what may or may not constitute multifariousness, but the circumstances of each case must determine the matter. However, as held in the case of Skipwith v. Hurt, 94 Tex. 322, 60 S. W. 423:

"The general doctrine of our courts is that the rights of all parties in the subject of litigation may and should be settled in one suit, within the limitation that parties cannot be so introduced as to prejudice the rights of those who have already commenced the litigation."

It is not apparent how the retention of the drainage district in the suit could "prejudice the rights of those who have already commenced the litigation." Under the Texas system of prosecuting and defending suits, which is largely based on common sense and reason, one great desire is to avoid a multiplicity of suits, and to dispose, at one stroke, of every issue that can arise out of the subject. As was said as far back as Thomas v. Hill, 3 Tex. 270, the law abhors a multiplicity of suits, and effectually guards against such a consequence. This is the doctrine of the courts of Texas. Love v. Keowne, 58 Tex. 191; Cobb v. Barber, 92 Tex. 309, 47 S. W. 963; Mateer v. Cockrill, 18 Tex. Civ. App. 391, 45 S. W. 751; Mathonicon v. Scott, 87 Tex. 396, 28 S. W. 1063; Harris v. Cain, 41 Tex. Civ. App. 139, 91 S. W. 866. We sustain the first assignment of error.

The second assignment of error assails the action of the court in permitting 6 peremptory challenges of jurors to each set of sureties, thereby giving such sureties 30 challenges. There was in this case but one cause of action, and that was the shortage of Gussett in his accounts as treasurer of Nueces county. The law permitted a joinder of the sureties for the different years, because there was but one cause of action. The appellees were making a common fight against appellants on the main issue, which was the liability of Gussett, as treasurer, to the county. "Each party to a civil suit shall be entitled to six peremptory challenges" does not mean that, where a number of defendants have a general cause of action against them, each one shall be deemed a separate party, because they may have secondary and collateral issues among themselves, and each be entitled to six peremptory challenges, as provided in article 5198, Revised Statutes. Jones v. Ford, 60 Tex. 127; Hargrave v. Vaughn, 82 Tex. 347, 18 S. W. 695; Wolf v. Perryman, 82 Tex. 112, 17 S. W. 772. As said by Chief Justice Stayton in the cited case of Hargrave v. Vaughn:

"We do not understand that by the word `party' is meant `person,' and that in a case in which there are more than one plaintiff or defendant to an action that each will be entitled to 6 peremptory challenges, but that when the issues to be tried between the plaintiffs and defendants are the same, that then * * * there are but two `parties' to the action. The liability of each of the defendants depends on the same fact, though the extent of the liability of one may be greater than can be fixed on the other defendants."

That was said in a case where a partnership and its employé were sued for improperly compounding a medical prescription, thereby killing a child.

In this case there were no issues to be settled among the defendants, but all they sought was to defeat the claim of appellants. They were to all intents and purposes one "party," and entitled to only 6 peremptory challenges, instead of 30 given them by the court. This was an error, which gave an advantage to appellees that would cause a reversal of the judgment. That it probably affected the result we think is apparent. The assignment is sustained.

The case of Screwmen's Benevolent Ass'n v. Smith, 70 Tex. 168, 7 S. W. 793, does not militate against the ruling herein that Gussett and his sureties were one party. That was a case of two suits, each against a different set of sureties, there being no question as to the principal being liable, in which it was clearly alleged that one set of sureties were liable for shortages for one term of office, and the other set of sureties for another terms. The court held they could not be consolidated, but further held:

"It would seem, when actions have to be brought against two sets of sureties on official or like bonds, given by a principal and different sureties, to secure the faithful performance of duty by the principal, for different terms, the one succeeding the other, that one action against the principal and all the sureties ought to be permitted when the plaintiff is unable to state and prove clearly where a misappropriation of funds occurred, and it may be that legislation upon this subject ought to be had."

In Skipwith v. Hurt, herein cited, two sets of sureties were sued, as indicated in the quotation from the case of Screwmen v. Smith, and it was said:

"All of the defendants were liable for the one subject-matter of the suit, the county's money in Skipwith's hands."

In article 1509, Revised Statutes, it is provided:

"The county treasurer shall not pay any money out of the county treasury except in pursuance of a certificate or warrant from some officer authorized by law to issue the same; and, if such treasurer shall have any doubt of the legality or propriety of any order, decree, certificate or warrant presented to him for payment, he shall not pay the same, but shall make report thereof to the commissioners' court for their consideration and direction."

The language of the statute is plain and imperative, and presents no ground for construction. As showing the strict construction to be placed upon the statute, it was held in Denman v. Coffee, 42 Tex. Civ. App. 78, 91 S. W. 800, by the...