Oglesby's Sureties v. State
| Decision Date | 07 May 1889 |
| Court | Texas Supreme Court |
| Parties | OGLESBY'S SURETIES <I>v.</I> STATE. |
Simpson & James and Ware & Evans, for appellants. J. S. Hogg and J. H. Robertson, for appellee.
At the general election held in November, 1884, T. L. Oglesby was elected sheriff of Maverick county, which office in that county imposed upon him the duties of collector of taxes, as well as those ordinarily devolved upon a sheriff. He took the oath and gave the bonds required by law, and his bonds were duly approved. He was reelected in November, 1886, and again took the oath and executed bonds. His bond as tax collector was approved by the commissioners' court, and was forwarded to the comptroller. He resigned in January, 1887, and the bond of his successor was finally approved by the comptroller on the 31st day of that month. He was found to be in arrears to the state, and this suit was, on the 4th of September, 1888, instituted by the state against him and the sureties upon both of his bonds as tax collector, to recover the amount for which he had made default. Upon the hearing a judgment was rendered against Oglesby and the sureties on the first bond for $574.77, and also against him and the sureties on the second bond for the sum of $688.46. From this judgment the sureties on the second bond prosecute this appeal. The appellants excepted to the petition upon the ground that its allegations did not distinctly show the liability of the sureties upon the second bond for the principal's default. Their exceptions were overruled by the court, and the ruling is assigned as error. The petition alleges the election of Oglesby for the two successive terms, and the execution and approval of the two bonds, and makes the sureties upon each bond parties defendant. It is also alleged, in effect, that Oglesby had collected taxes due the state in excess of what he had paid over or accounted for, amounting to the sum of $1,104.39. An itemized account of his debits and credits was annexed to the petition, from which it appears that the taxes with which he was charged were collectible during his first term of office. The petition also contains this averment: "That as the account herein sued upon and hereto attached as an exhibit is for the taxes for the year 1886, upon the tax-rolls of 1886, it is impossible for plaintiff to say whether or not the money due plaintiff is due as money collected under the said bond of date of December 4, 1884, or as money collected under said bond of date 16th November, 1886, and the sureties of both parties are made defendants herein, to the end that whatever equities that may exist between them on said two bonds, if any, may be equitably adjusted in this suit, and thus a multiplicity of suits avoided by casting the liability where it justly belongs." The effect of this averment is merely to allege that from the evidence at hand the plaintiff had been unable to determine during which term of office the money had been misapplied. The difficulty of determining this question raises no equities between the sureties on the respective bonds. The demand of the state against the sureties on either bond was strictly a legal demand, and the defenses to it were of a like character. There is no privity between the sureties upon the first bond and those on the second. Their obligations were separate and distinct, and the liability of those upon the one bond was in no sense dependent upon the liability of those upon the other. It is true that both sets of sureties were not responsible for the same defalcation, and that from the very nature of the case what the one set was...
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