Finch v. State

Slayton, Chief Justice.

This action was brought against Amos Finch and four sureties on a bond executed by him as tax collector for Wise county, in November, 1884.

It was also brought against the widow and only child of a deceased surety.

The deceased surety died on June 18, 1885, and at the December term of the commissioners court, on account of the death of this surety, Finch was required to execute a new bond.

He executed a new bond, having, with others, the same sureties, except the deceased surety, as had the first bond. This bond was approved by the commissioners court and forwarded to the Comptroller for his approval, but he rejected it and returned it to Finch, who took no further steps to make a new bond, but continued to act as tax collector.

By an amended petition the last bond was set up as well as the first, and the sureties were then made parties, but those on the last bond, other than such as were on the first, were never cited. Finch was shown to be insolvent, a non resident of the state and his whereabouts unknown, and before the trial the action was discontinued as to him and the sureties on the last bond not served.

It was alleged that there was no administration on the estate of the deceased surety, and that the widow and only child had received an estate from him, but the evidence tended to show that although he left an estate, it was probable that it would not meet the indebtedness against it.

It was further shown that Finch had paid over all taxes collected by him to the close of the year 1885.

The case was tried without a jury, and a judgment rendered in favor of the state for the sum shown to have been collected and not turned over by Finch, but the judgment was rendered against the heirs of the deceased surety, to be paid out of such assets, subject to forced sale, as came into their hands.

The judgment was based solely on the first bond executed. It is urged that there was an improper joinder of parties and causes of action.

That may be conceded, but it was not hurtful to the sureties on the first bond and the heirs of the deceased surety, for the judgment was rendered on the bond first executed.

It is further claimed that the sureties on the first bond were released by the execution of the second bond and its approval by the commissioners court.

In a case in which the sureties on a tax collector’s bond sought to be relieved from further liability .and another bond, upon their application, was required to be made, which was approved by the commissioners court but rejected by the Comptroller, it was held that the sureties on the first bond were not released from liability for the future acts of the tax collector. (The State v. Mills, 61 Texas, 562.)

The statutes applicable to the question are cited in that case and the reasons given for the holding, and it is not now necessary to repeat them.

It is urged, however, that the same rule will not be applicable in this case, because here the commissioners court required a new bond on its own motion and not upon the request of a surety.

There is nothing in the statutes requiring a different rule in the two cases, and the reasons for holding the sureties on the first bond liable for the acts of a collector until a new bond is executed and approved by the commissioners court and by the Comptroller would seem to be stronger in a case in which the new bond is required by the court on its own motion, than in a case in which the sureties have asked to be relieved.

No order was entered suspending or removing from office the tax collector on his failure to execute a new bond satisfactory to the Comptroller as well as the commissioners court, and the fact that this might have been done under the statute, which is directory, did not relieve the sureties on the first bond. (Murfree on Official Bonds, 59.)

There was no exception to so much of the petition as sought to hold the heirs of the deceased surety liable to the extent they had received assets from his estate, other than the general demurrer, and the judgment rendered does not affect them otherwise than as to the assets subject to execution in their hands, or the proceeds of such assets.

No injury to them results from the judgment and it can not affect' the rights of persons parties to the action.

There is no error in the judgment and it will be affirmed.

Affirmed.

Opinion delivered June 5, 1888.