Riley v. Coleman County ( 1915 )

On Motion for Rehearing.

Appellant complains that as to the case against Coleman county we presumed that the county judge acted without authority, and that as to Stobaugh that he complied with the statute. It is not necessary to indulge any presumption in order to sustain our decision herein, further than that which the law presumes in favor of every man in the absence of any charge that he has done a wrongful act.

As to the county, it is not liable for any act of its county judge, unless made so by statute. In order to show liability it was incumbent on appellant to allege the facts which would make it liable under the statute.

As to Stobaugh, it is alleged that he killed appellant’s animals under an order of the county judge, who was laboring under the erroneous belief that such animals had the glanders. Was such action on the part of Stobaugh lawful? We don’t know, and the trial court could not know, without being informed whether or not the facts existed which authorized the county judge to issue such order. It was necessary for appellant to allege that these facts did not exist, in order to state a case against Stobaugh.

It is evident that if appellant had stated facts which made a case against the county, he would have shown that he had no case against Stobaugh; and, on the other hand, if he had' alleged facts constituting a case against Stobaugh, he would have negatived his cause of action against the county.

The county judge either did or did not proceed, under the statute. If he did, his acts were the acts of the county, and his order protected Stobaugh; if he did not, the county is not responsible for his acts and his order would not protect Stobaugh. The appellant should have pleaded the facts upon which he relies.

Motion overruled.