San Patricio Cnty. v. McClane
| Decision Date | 01 January 1876 |
| Citation | 44 Tex. 392 |
| Parties | SAN PATRICIO COUNTY v. JOHN MCCLANE. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Nueces. Tried below before the Hon. T. C. Barden.
John McClane brought suit April 13, 1872, in the District Court of Nueces county, against the county of Refugio, upon eighteen county warrants for one hundred dollars each, seven bearing date August 30, 1861, of which the following is a copy:
“No. 1. $100. Treasurer of San Patricio county will pay to Alexander Murphy, or order, the sum of one hundred dollars, ($100,) with 12 per cent. interest per annum from date until paid, the same being on account of the contract for building the court house and jail in said county.
Witness my hand and seal of County Court of said [L. S.] county, at San Patricio, this 30th of August, A. D.
The other eleven were of date May 21, 1862, and copy of one is as follows:
“No. 13. $100. The Treasurer of San Patricio county will pay to Alexander Murphy, or order, the sum of one hundred dollars, part payment on balance due him on court house and jail, as per last settlement with the County Court, with 12 per cent. per annum interest until paid.
Witness my hand and seal of County Court, at San [L. S.] Patricio, May 21, A. D. 1862.
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¦Attest: A. MCGLOIN, ¦OWEN GAFFNEY, ¦
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¦Cl'k C. C., S. P. Co. ¦Chief Justice.” ¦
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It was alleged that these county warrants were indorsed by Murphy to petitioner, who was owner and holder, &c.; that the officers issuing the same were authorized to do so by action of the County Court of San Patricio county; that the county treasurer will not pay the warrants, nor will the County Court order payment, &c.
The defendant pleaded in abatement that the suit was not brought in San Patricio county. The action of the court is shown by the bill of exceptions, as follows:
“Be it remembered, that this cause coming on to be heard upon the defendant's plea to the jurisdiction of the court, which said plea was verified by facts and admission of plaintiff's petition, filed as part of the record in said cause, and the judge having stated from the bench that he had certified by telegraph to the Governor of the State of Texas, before the filing of this suit, that from the want of a proper place for holding court and for the sheriff and clerk of said San Patricio county, and also for the want of the requisite number of qualified jurors, the court could not be properly held in said county, and that he had a certified copy of the Governor's proclamation issued thereon; and thereupon the court overruled the said plea, to which ruling of the court the defendants excepted, for the reason that the certificate of the judge was not made in the terms of the law, and that the said proclamation was of no force and effect on account of said defect in said certificate, and now here tender this their first bill, and ask that it be signed and certified as a part of the record in this cause, which is accordingly done.
The above bill of exceptions is signed, with the addition that any statement from the bench was to this effect: that I had, as required by the Constitution of the State, duly certified in writing to his excellency the Governor the existence of the facts set forth above relating to San Patricio county, whereupon in the first instance the proclamation duly issued attaching San Patricio county to Nueces county for judicial purposes; that subsequently, viz, November 25, 1871, was passed the act amending act fixing the times for holding the terms of court in the 16th judicial district; but that, about the 20th February, 1872, I telegraphed the Governor, stating the same circumstances still existed in San Patricio county as formerly, and asking that his excellency's proclamation re-issue, re-attaching the county of San Patricio to Nueces county as was before done.
The proclamation was re-issued.
In addition to what is stated above I further stated that I might have communicated the same facts in regard to San Patricio again in writing as in the first instance. As to this I did not recollect definite. The telegram was sent and the proclamation re-issued prior to the filing of above suit in District Court, Nueces county.
T. C. BARDEN,
Judge 16 th Judicial Dist. Texas.
The defendant further answered that the said warrants, issued in 1862, were issued under a settlement made with Murphy rescinding his contract...
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