Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Galveston term, 1884, and embracing the greater part of the Austin term, 1884. Volume 61. Page: 54
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54 SMITH V. WINGATE. [Galv. Term,
Argument for the appellants.
R. H. SMITH Er AL. V. D. R. WINGATE.
(Case No. 1754.)
1. OFFICIAL BOND.- A bond executed by the county treasurer, conditioned as
required by law, which is made payable to the individual occupying the
position of county judge, but which fails to designate his official character,
constitutes a substantial compliance with the statute requiring an official
bond, if it appears to have been examined and approved in open court, certified
to by the county judge, and was properly filed and indorsed by the
county clerk.
2. PARTIES--STATUTE CONSTRUED.--A suit on such a bond, brought in the
name of the obligee for the use of the county, is, in effect, a compliance
with art. 1200, R. S., which requires suits by a county to be brought in its
corporate name, the county being the real plaintiff.
8. ACTION - ABATEMENT.- It is not necessary, in a suit brought for the use of a
county, that the petition should show on its face that the county had authorized
it. Such an objection can be taken only by plea in abatement.
APPEAL from Orange. Tried below before the Hon. W. H. Ford.
Appellee, as county judge of Orange county, and for the use of
the county, brought this suit in the district court, September 12, 1882,
against W. E. Reed, late county treasurer of said county, and appellants
as sureties on his official bond, to recover $835.77 and interest,
for which amount it was alleged the treasurer had defaulted. The
bond was copied in the petition; it was duly executed, and was conditioned
and payable as prescribed by the statute, except that it was
payable to appellee without the addition of " county judge of Orange
county." It was properly filed and recorded by the clerk, and indorsed,
"examined and approved in open court May 29, 1880, D.
R. Wingate, county judge." Appellee alleged that he was county
judge at the time the bond was executed and was still county judge;
that the bond was duly approved by the commissioners' court of
Orange county as the official bond of the treasurer, and it was intended
by the obligors to be payable to appellee in his official
capacity and was so accepted from the treasurer, etc. A breach of the
bond was fully alleged, the petition giving items, dates and amounts,
and charging an appropriation of the amount sued for by the treasurer
to his own use, and fully setting up the legal liability of the
defendants for the sum and interest sued for.
Wm. Chambers, for appellants, cited: R. S., art. 988; id., title
XXXI, chs. 1 and 2, art. 988; Lawton v. State, 5 Tex., 270; Mays v.
Lewis, 4 Tex., 1; Johnson v. Erskine, 9 Tex., 1.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of the State of Texas, during the latter part of the Galveston term, 1884, and embracing the greater part of the Austin term, 1884. Volume 61., book, 1903; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28513/m1/70/: accessed April 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .