Polly v. Hopkins

• Decision Date: 28 May 1889
• Citation: 11 S.W. 1084
• Court: Texas Supreme Court
• Parties: POLLY, County Judge, <I>et al.</I> <I>v.</I> HOPKINS <I>et al.</I>

11 S.W. 1084

POLLY, County Judge, et al.v.

HOPKINS et al.

Supreme Court of Texas.

May 28, 1889.

Appeal from district court, Hemphill county.

J. N. Browning and B. M. Baker, for appellants. W. H. Griggsby, Temple Houston, and W. H. Woodward, for appellees.

STAYTON, C. J.

This suit was brought by appellees, a number of tax-payers in Hemphill county, against E. E. Polly and S. N. Pickens. There are no other parties defendant. The petition alleges that Polly is the county judge of Hemphill county, and that some time in June, 1888, "he signed, executed, and delivered to one S. N. Pickens, one of the defendants herein, a certain written contract, * * * stipulating for the construction of a county jail at Canadian, the county-seat of said county, to cost thirteen thousand dollars, to be paid for by said county by the issuance and delivery to said Pickens of interest-bearing bonds of said county sufficient to cover said amount. Plaintiffs further allege that the action of defendant in the execution and delivery of said contract was fraudulent, and in defiance of the votes and express action of a majority of the members of said commissioners' court, duly recorded as shown by the minutes of said court, pages 71, 73, and 74, to which reference is here made; that there is no order authorizing the construction of said jail by the said Pickens, or any one else, or the entering into of any contract relating to the same, but, on the contrary, the said minutes plainly show that all action in reference to construction of said jail had been forbidden and expressly inhibited by said court, to which reference is here made to pages 71, 73, and 74 of said minutes. Plaintiffs further allege that E. E. Polly, by fraudulent representation, procured the signature to said contract of George Simpson, commissioner of precinct No. 4 of said county, one of the plaintiffs herein, by representing to said Simpson that the construction of said jail had been ordered by said court, when in truth and fact the contrary was the case, and so known by the said defendant." The petition further alleges that Polly "contemplates and is attempting the execution, issuance, and delivery to said S. N. Pickens, of said county, interest-bearing bonds in the sum of $13,000, in payment, as aforesaid, for the construction of said jail;" and then states many reasons why, in the opinion of the plaintiffs, the jail should not be built. The prayer is "that defendant Polly be enjoined and perpetually restrained from issuing, executing, delivering, or in any manner attempting to issue, execute, or deliver, any bonds or other evidence of indebtedness on the part of said county, in any wise relating to said purported contract, or the erection or construction of said jail." By a trial amendment plaintiffs set up an order of the county commissioners' court entered on December 12, 1888, refusing to build a jail, or make any contract in reference thereto with Pickens, but the date of the order may be incorrectly stated in the transcript. Injunction was granted on July 12, 1888, and on hearing was perpetuated. There was a general demurrer, as well as many special exceptions urged against the petition, but they were all overruled, as was a motion to dissolve the injunction, based on the...