Pruitt v. Durant

• Decision Date: 15 March 1892
• Citation: 19 S.W. 281
• Court: Texas Supreme Court
• Parties: PRUITT <I>et al.</I> v. DURANT.

19 S.W. 281

PRUITT et al. v. DURANT.

Supreme Court of Texas.

March 15, 1892.

Commissioners' decision. Section A. Appeal from district court, Leon county.

Mandamus by W. B. Durant to H. B. Pruitt and others, composing the commissioners' court of Leon county. From a judgment for plaintiff, defendants appeal. Reversed.

The other facts fully appear in the following statement by MARR, J.:

The appellee instituted this suit in the district court upon a claim for $173 and interest, alleged to be due as a portion of his salary as a teacher in the public schools of the state in Leon county, during the year 1884, and which he claims was duly audited and allowed as a valid debt by the county commissioners' court of that county under the act of the legislature of April 2, 1883. The appellants were the members of the county commissioners' court of Leon county, and the purpose of the suit is to compel them, by mandamus, to issue a proper warrant, as contemplated by the act of 1883, to the plaintiff, for the amount of his claim, as audited, and to make suitable provisions for its payment, as provided by law. The suit was begun on the 29th day of October, 1889; and the appellants, as defendants below, interposed the statute of limitation of four years as a defense. The court below held that the plaintiff's action was not barred, and awarded a peremptory mandamus, requiring the defendants and "their successors in office to issue a draft" to the plaintiff for the amount of his claim, as audited by said court on the 13th day of August, 1883, with legal interest from that date, "upon the county treasurer, to be paid out of the general fund of Leon county." The court, in addition, gave judgment for costs against the defendants, and they have appealed.

The cause is now before us upon an agreement of counsel, with the approval of the judge, in the nature of an "agreed case," under the statute. The agreement, so far as need be copied, is as follows: "It is agreed that this case may be tried in the supreme court upon the petition and answer and the following facts: (1) The claim sued upon was on August 13, 1883, duly audited by the commissioners' court of Leon county. (2) Leon county and her officers have ever since said August 13, 1883, refused payment of the claim sued upon, and plaintiff soon thereafter placed the same in the hands of an attorney for collection. (3) On the 11th day of February, 1884, the commissioners' court of Leon county, without notice to plaintiff, and in his absence, made an order, duly entered of record, in which the court acknowledged that it had before that date recognized and allowed the plaintiff's claim, and others of like character; but the court, by this order, directed that drafts for the several amounts (previously) found to be due be not issued as provided in the first section of the act of 1883, nor any levy of taxes with which to pay the same." In other words, the court attempted by this order to revoke the former one, and to repudiate the claims. It further appears from the agreement that in December, 1887, "the plaintiff filed a petition in the commissioners court, praying that his claim be reallowed, and that a draft on the county treasurer be issued in his favor for the amount of his claim." At the August term of the court, 1888, this petition was denied, and the court "refused to order the draft to be issued, and the claim paid." It appears that plaintiff at no time was able to obtain a draft on the county treasurer, or other proper evidence to procure the payment of his claim. The commissioners' court had simply audited it in August, 1883, but from that time refused to allow the draft to be issued, as contemplated by the act of 1883, or to make any provision for its payment. The first order, even, by which the claim was audited, did not authorize the issuance of the draft. It was simply an approval of the claim indorsed upon the claim by the county judge, with the concurrence of the other members of the court. All questions, however, as to the sufficiency of this approval as an order of the court, are obviated by the agreement that the claim was in fact "duly audited." Brown v. Reese, 67 Tex. 318, 3 S. W. Rep. 292; Brown v. Ruse, 69 Tex. 590, 7 S. W. Rep. 489. It is admitted by the allegations of the petition that "both before and since the 11th day of February, 1884, [upon which date the commissioners' court, in effect, revoked its former order, allowing plaintiff's claim, and refused to allow a warrant therefor to be issued,] the plaintiff often requested said court to cause to be issued in his favor a warrant upon the county treasurer," upon certain funds of the county, as contemplated by law, or, if that should not be deemed advisable, then to levy the proper tax for the payment of the claim, etc., but that said court refused to grant these requests, or "to make any provision for the payment of the claim...