Orndorff v. El Paso County

• Decision Date: 14 April 1927
• Docket Number: (No. 1979.)
• Citation: 295 S.W. 219
• Parties: ORNDORFF, Sheriff, et al. v. EL PASO COUNTY et al.
• Court: Texas Court of Appeals

295 S.W. 219

ORNDORFF, Sheriff, et al. v. EL PASO COUNTY et al.

(No. 1979.)

Court of Civil Appeals of Texas. El Paso.

April 14, 1927.

Rehearing Denied May 19, 1927.

Error from District Court, El Paso County; P. R. Price, Judge.

Action by El Paso County and Miriam A. Ferguson, Governor of Texas, against Seth B. Orndorff, Sheriff of El Paso County, and others. Judgment for first named plaintiff and against second named plaintiff, and defendants bring error. Affirmed.

Lytton R. Taylor, R. F. Burges, and Whitaker & Peticolas, all of El Paso, for plaintiffs in error.

C. W. Croom and D. E. Mulcahy, Co. Atty., both of El Paso, for defendants in error.

WALTHALL, J.

This suit was instituted by El Paso county, Tex., and Miriam A. Ferguson, Governor of the state of Texas, against Seth B. Orndorff, sheriff of El Paso county, Tex., and Lee H. Orndorff, Charles De Groff, and H. P. Jackson, sureties upon his official bond, to recover of the defendant, Seth B. Orndorff, certain moneys alleged to have been received by him from the United States of America as turnkey fees for the commitment and discharge of certain prisoners committed to his charge by officers of the United States on behalf of the United States, and for other sums of money paid to the said Seth B. Orndorff by the United States for the care and subsistence of federal prisoners cared for and subsisted by the said Seth B. Orndorff, under the authority of, and on behalf of, the United States of America, and to recover of Lee H. Orndorff, Charles De Groff, and H. P. Jackson, sureties on the official bonds of the said Seth B. Orndorff, the amount of such bonds.

On September 17, 1925, defendants in error filed suit against Seth B. Orndorff, as principal, and Lee H. Orndorff and H. P. Jackson, as sureties, upon the official bond dated the ____ day of December, 1922, for the term of office of the said Seth B. Orndorff beginning January 1, 1923, and ending December 31, 1924; and on February 17, 1926, defendants in error filed suit against Seth B. Orndorff, as principal, and Lee H. Orndorff and Charles De Groff, as sureties, upon the official bond dated December 29, 1924, covering the term of office of the said Seth B. Orndorff, as sheriff, for the term beginning on the 1st day of January, 1925, and ending December 31, 1926, and in the same suit, upon a second bond, executed by the said Seth B. Orndorff, as principal, and Lee H. Orndorff and Charles De Groff, as sureties, said bond having been executed in pursuance of an order of the Commissioners' Court of El Paso County, under date of July 20, 1925.

On November 3, 1925, plaintiffs in error filed their petition and bond for removal of each of said suits to the United States District Court for the Western District of Texas, and served notice upon defendants in error and their attorneys of record on the same date. On the same date the court accepted and approved said bond as to sufficiency, amount, and condition, but refused said petition for removal, on the ground that said petition stated no valid ground for removal of said cause to the federal court, to which ruling the defendants in open court excepted. On February 18, 1926, the United States District Court remanded said cause to the district court of El Paso county for trial.

On May 6, 1926, said causes were consolidated, by agreement of counsel, under the order of the district court. The cause proceeded to trial upon the consolidated second amended original petition of the plaintiffs, defendants in error, filed on May 13, 1926, and the first amended answer of defendants, plaintiffs in error, filed May 18, 1926, and upon plaintiffs' reply to defendants' first amended answer, filed May 18, 1926.

The cause was tried by the court without a jury, and on the 27th day of May, 1926, the the court rendered judgment against the defendant Seth B. Orndorff for the sum of $27,195.76, for the fiscal year 1923, and against Lee H. Orndorff and H. P. Jackson, sureties, in the amount of the bond executed by them, to wit, the sum of $5,000 for the term of office beginning January 1, 1923, and ending December 31, 1924.

The court further rendered judgment against Seth B. Orndorff in the sum of $16,012.66, for the fiscal year of 1924; and the court further rendered judgment against Seth B. Orndorff for the sum of $23,978.41, for the fiscal year 1925, and against Lee H. Orndorff and Charles De Groff, sureties on two bonds, for the term of office beginning January 1, 1925, for the sum of $23,978.41.

The defendants in open court excepted and gave notice of appeal to the Court of Civil Appeals for the Eighth Supreme Judicial District of Texas, and were given 90 days after adjournment of court in which to file bills of exception and statement of facts. On July 6, 1926, the court filed its findings of fact and conclusions of law. On October 23, 1926, plaintiffs in error filed their petition for writ of error, and waiver of citation was filed October 27, 1926, and cost bond was filed October 23, 1926, which bond was duly approved. In due time, plaintiffs in error filed their assignments of error and statement of facts in duplicate and transcript in this court, and bring the cause before this court for review.

The case was tried without a jury, and on motion of defendants the trial court made up and filed findings of facts and conclusions of law; the following being the findings and conclusions filed:

"Findings of Fact.

"(1) The defendant Seth B. Orndorff, during all of the times relevant herein, was the duly elected and qualified sheriff of El Paso county. The other defendants were sureties on his official bond, on the dates and in the amounts alleged in plaintiff's petition.

"(2) That for the fiscal year 1923 the said Orndorff, as sheriff of El Paso county, collected the sum of $27,195.76 as fees of office in excess of the maximum compensation allowed him by law, after deducting all expenses allowed by law. This $27,195.76 excess was largely composed of profits derived from the feeding of federal prisoners, placed in the jail of El Paso county by federal officers, to wit, the United States Marshal, the Department of Justice, the Prohibition Department, the United States Immigration Department, and the United States Collector of Customs.

"(3) These prisoners, as well as all prisoners for the fiscal years 1924 and 1925, were received under an oral contract between the sheriff and the United States marshal that the sheriff should receive the sum of 50 cents per day for the support and maintenance of federal prisoners, and the aforesaid sum of $27,195.76 is largely made up as aforesaid of profits made from the feeding of federal prisoners. However, included in said amount is approximately the sum of $2,000 as commitment and release fees, paid by the United States marshal on federal prisoners.

"(4) The Attorney General's department, by letter dated December 7, 1922, advised J. A. Escajeda, Esq., county auditor of El Paso county, that the sheriff, under chapter 19, General Laws, Regular Session, Thirty-Seventh Legislature, need not account for profits derived from the feeding of federal prisoners. This letter was exhibited to the defendant Orndorff at or about the time of its receipt, which was probably some time in December, 1922, and acting thereon he failed to include in this account profits derived from the feeding of federal prisoners.

"(5) For the fiscal year 1924, the defendant Orndorff failed to account to El Paso county for $14,758.60 fees of office. These fees were the excess after the deductions by him of the maximum amount allowed by law and all lawful expenses. The said sum is largely composed of profits made from the feeding of federal prisoners. However, included in same is about the sum of $2,000 commitment and release fees for federal prisoners.

"(6) For the fiscal year 1925 the defendant Orndorff failed to account to the county for fees in the sum of $23,404.95. These fees were in excess of the...