Roan v. Raymond
| Decision Date | 01 January 1855 |
| Citation | 15 Tex. 78 |
| Parties | BETSY B. ROAN AND ANOTHER v. JAMES H. RAYMOND AND OTHERS. |
| Court | Texas Supreme Court |
Where a certificate under the provisions of the act of February 9, 1850, for the relief of certain persons, formerly prisoners of war in Mexico (Hart. Dig. art. 2712), was issued to William H. Roan, who was decimated at Mier, and was delivered to the administrator of said Roan, who was appointed on the 29th of July, 1850, by whom it was assigned to another, who presented the same to the state treasurer on the 5th of April, 1852, and received payment thereof, it was held in an action afterwards commenced against the treasurer, by the heirs of said Roan, for the delivery of said certificate, and for mandamus to compel the payment thereof to them, to which action the administrator and assignee were made parties, that the action, as against the treasurer, could not be sustained.
Quære, whether a certificate under the provisions of the act of February 9, 1850, for the relief of certain persons formerly prisoners of war in Mexico, is assets in the hands of the administrator of the volunteer, who was dead at the time of the passage of the act, or enures to the benefit of his heirs then living?
Where the plaintiff instituted suit in Travis for a mandamus against the state treasurer, and made two others who resided in distant counties, defendants also, praying for general relief, it was held that as the plaintiff was not entitled to any relief as against the treasurer, he could not sustain his action in that county against the other defendants, although they had not pleaded their privilege to be sued in the county of their residence.
Appeal from Travis. Suit by Betsy B. Roan and Turner T. Roan, mother and brother of William H. Roan, and claiming to be the only heirs of said William, against James H. Raymond, state treasurer, William Ryan and Benjamin F. Atkins.
The suit was commenced August 10, 1853, in Travis county. It was alleged that Ryan resided in Fort Bend, and Atkins in Brazoria, to which counties citations for said defendants were issued, and returned executed.
The object of the suit was to enforce the claim of the plaintiffs to the proceeds of a certificate which had been issued by the auditor and comptroller to the said William H. Roan, under the act of February 9, 1850, for the relief of certain persons, formerly prisoners of war in Mexico. (Hart. Dig. art. 2712.) Said act provided: “That all the volunteers captured at Mier and at Santa Fe by the Mexican forces, shall be entitled to receive pay at the rate of twenty-two dollars and fifty cents per month, from the respective times of their mustering into service, until one month after the time at which the main bodies of said volunteers were released by the Mexican government; and it shall be the duty of the auditor and comptroller to issue to each of said volunteers, or his heirs or representatives claiming the same, a certificate for the amount to which he may be entitled under the provisions of this act; and the further sum of sixty-five dollars to each of said volunteers, as compensation for the loss of his horse, arms and accoutrements, to be added to the amount of pay aforesaid, and included in said certificate; which certificate shall be issued to the person or persons entitled to the same, upon making proof as hereinafter required, and shall be an audited par claim against the late republic of Texas.” This act then prescribes the proof which shall be required of “any of said volunteers, or his heirs or representatives;” but such requisitions related only to proof of the service, thereby leaving the proof of heirship, etc., to be determined as in like cases.
The petition alleged that William H. Roan had been taken prisoner at Mier and decimated. On the 29th of July, 1850, William Ryan, one of the defendants, was appointed administrator of said Roan's estate, and took the oath and gave bond, as required by law. On the 24th September, 1850, the auditor and comptroller issued the following certificate and delivered it to the said Ryan:
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¦“No. 828.]¦[2d Class.¦
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PUBLIC DEBT OF THE REPUBLIC OF TEXAS.
This is to certify that Wm. H. Roan has, under the provisions of an act of the legislature of the state of Texas, entitled ‘An act to provide for ascertaining the debt of the late republic of Texas,’ approved 20th March, 1848, filed with the auditor and comptroller a claim for services and losses sustained on the Mier expedition, amounting to six hundred and five dollars, which is sufficiently authenticated to authorize the auditing of the same, under the laws of the late republic of Texas. The said claim, according to the data before us, is worth six hundred and five dollars in par funds, as having been at that rate so available to the government. In testimony whereof,” etc.
The certificate had an assignment on the back thereof, as follows:
For value received, I transfer the within claim of William H. Roan against the state of Texas for six hundred and five dollars to Benjamin F. Atkins. October 7, 1851.
WILLIAM RYAN,
Adm'r of the estate of Wm. H. Roan.
Assignment acknowledged before a notary.
On the 5th of April, 1852, Atkins received payment of the certificate from James H. Raymond, state treasurer.
The petition prayed judgment against Raymond for the delivery of the certificate, and a mandamus against him, as state treasurer, to pay over said amount to the plaintiffs, and that Raymond have judgment against his co-defendants for the same amount. It also prayed judgment against Ryan and Atkins in favor of plaintiffs for $1000 damage, and for general relief.
Raymond and Atkins answered separately by general demurrer and pleas to the merits. Ryan made default. The demurrers of Raymond and Atkins were sustained, the default as to Ryan set aside, and judgment rendered that the petition be dismissed; that the defendants go hence without day and recover their costs.
G. W. Paschal, for appellants. The objection partially made, but not insisted on in the court below, that there was a misjoinder of parties, could not be taken upon general demurrer. In equity causes, a misjoinder of parties might be reached by demurrer, because, without such parties, complete justice could not be done. (Story's Eq. Pl. ch. 4, sec. 72 et seq.; Cooper's Eq. Pl. 33, 34; Calvert on Parties, ch. 1, sec. 1, pp. 1, 2; West v. Randall, 2 Mason, 100, 191.)
But under our system the objection would have to be pleaded, and it would have to be shown that to continue improper parties on the record would be to the prejudice of those really interested. In other words, that they had no interest in the controversy; the contrary whereof is admitted by the demurrer. (Johnson v. Davis, 7 Tex. 173.)
Ryan and Atkins were, therefore, properly joined, according to the rule often prescribed by the court, on the subject of mandamus. (Smith v. Power, 2 Tex. 5.)
In this case it is alleged that Raymond is in possession of an audited warrant--a thing worth its face value--which of right belongs to the plaintiffs. That he came into the possession by the improper and illegal combinations of the other defendants. It was, therefore, proper under our system, not only to pray for the recovery of the certificate, but also to make all who stand in the way of its payment parties, in order that they may show their right to it. In no way could this be so properly done as by adding the prayer for a mandamus to the prayer for specific recovery of the thing, and thus enabling the court to do complete justice among all concerned.
The duty of the treasurer was purely ministerial. He had only to pay out the money to the lawful holder of the certificate. And certainly it would be an alarming doctrine to say that there is no appeal from the decision of the treasurer, as to who is the lawful holder of the certificate.
If it be not disrespectful to this court, after so much discussion upon the subject, and after some rules of limitation seem to have been settled by a series of decisions, we would venture again to suggest, that in applying any particular rule to the remedy by mandamus, by name, there is danger of being misled from the spirit of our constitution and judicial system. If we would preserve harmony, we must proceed upon the single axiom that, whatever may be a party's rights, he may assert them by stating the true facts in a petition and praying for relief. If he designates his action by any common law name, and asks for any remedy by a common law term, it affords no reason why his right in court should be limited by the common law construction of that remedy. Such a rule would raise up all the distinctions in practice, and lead us into a labyrinth of special pleading, which our constitution and laws so industriously avoid.
Whatever may be the opinion of this court, as to the appropriateness of the...
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Soye v. Maverick
... ... inherited, subject to the fulfilment of his obligations, and the payment of his debts.The present is plainly distinguishable from the cases of Roan v. Raymond, and Eastland v. Lester, 15 Tex. 78 and 98. There, the grant was a gratuity bestowed upon the grantee by the state; not in consequence of ... ...