Hetten v. Lane

Gould, Associate Justice. Appellee, who had been United States collector of internal revenue for the third district of Texas, brought suit in the District Court of Travis .county against his deputy, Hetten, and securities, on his bond given to Lane on April 27, 1867, conditioned to be void if said Hetten “ shall truly and faithfully execute and discharge all the duties of the said office according to law, and shall justly and faithfully account for and pay over to the said R. U. Lane, in compliance with the rules and regulations of said Lane, all public moneys which may come into his hands or possession. The petition charged that Hetten, as deputy collector, had collected and-failed to pay over the sum of $4,857.09, and made an account, filed with the petition, a part thereof. In the original petition Hetten is described as a “ transient person, [287] but temporarily residing in the county of Travis,” and his sureties, the other defendants, are stated to be residents of Comal county. Hetten pleaded in abatement that his domicile and residence was in Comal county, and his sureties also pleaded that according to the averments of the petition the suit should have been brought in Comal county. The- plaintiff having amended his petition so as to allege that Hetten’s residence at the time the suit was brought was and had long been in Travis county, the issue thus made on the pleas in abatement was submitted to a jury, and a verdict was returned that Hetten, at the time the suit was brought, resided in Travis county. At this stage of the case a motion for new trial was made, and being overruled a regular statement of facts, embodying the evidence on the question of residence, was filed and approved, and comes up as a part of the record. Besides excepting to the petition, both generally and specially, and pleading that Hetten was entitled to credits not allowed, and was not in fact at all in arrears, the sureties did set up that Hetten had been acting as agent (deputy) for Lane prior to his appointment as deputy and the date of the bond sued on ; that the sum of $3,094.93 was owing by Hetten before that time, and was a part of the indebtedness claimed by plaintiff, and that for this his sureties were not liable. The trial resulted in a judgment against defendant and sureties for $3,000, with 8 per cent, interest from January, 1869. One ground of error (assigned, however, only in what purported to be an assignment of errors filed at the term the plea in abatement was tried, and not in the assignment filed after the appeal was perfected) is, that the verdict on the plea in abatement is contrary to the law and evidence, and in the briefs of counsel on both sides the law of domicile has been discussed at length." It does not appear that on the trial of the issue as to domicile or residence any instructions as to the law were given or that any were asked [288] by either party. The question submitted to the jury, apparently without objection at the time, was, “ Did the defendant, Hetten, have any residence in Texas on the 3d of Hovember, 1871, and if so, where?” The answer was, “Yes; Travis county.” The question presented is simply one of fact, and looking at the evidence we cannot say that the verdict should have been set aside. The plaintiff having amended so as to correct the statement in his original petition that Hetten was a transient person, was not concluded by that averment. (Ward v. Lathrop, 11 Tex., 287; Coats v. Elliott, 23 Tex., 612.) The evidence shows that Hetten acted as agent for Lane for some six months before he was appointed and gave bond as deputy, and that whilst he was agent he received and paid over large sums of money. The account filed with the petition contained both debits and credits of large sums during the agency and prior to the date of the bond. It is said in argument that evidence was improperly admitted of matters transpiring before the bond. The exceptions to the petition did not embrace any objection to the nature of the account filed. Regarding the account as a part of his petition, it was competent for him to introduce evidence of its correctness. In Burnett v. Henderson, 21 Tex., 588, cited by appellee, it does not appear that the account was made an exhibit, and objection was made to the evidence at the time. Here no bill of exceptions presents any such ruling for revision. It is contended that by the terms of the bond it was prospective, and that the sureties were only bound for moneys collected after the bond was given and not for delinquencies prior to that time. This proposition is believed to be correct to the extent that for moneys collected and misapplied before the bond the sureties were not liable. (United States v. Eckford’s Exr’s, 1 How., 250; Vivian v. Otis, 24 Wis., 518, cited by appellant.) But it seems that moneys on hand at the time of his appointment would be [289] from that time in his hands officially, and that the burden of showing a previous misappropriation would devolve on the sureties. (Id.) That there was a balance against him at that date is not of itself sufficient evidence that at that date he had misapplied that amount. The charge asked by the sureties and refused by the court was to the effect that if there was any amount due by Hetten to Lane before April 27, 1867, that amount was to be deducted from the general balance on the whole account. It was not error to refuse this charge, as asked, because, as we have seen, there may have been a balance then against Hetten without any such default or misappropriation by him. It is to be remarked also that defendant Hetten himself testifies that “ he had fully settled up for all amounts collected by him while acting as agent for plaintiff from October, 1866, to April, 1867.” In the face of his own testimony, showing that in reality he was not then in arrears, the refusal of the charge asked would afford no good grounds for reversal, though it had embodied a correct abstract legal proposition. The same may be said of the charge actually given. It would have been more satisfactory if the court had more distinctly instructed the jury that the securities were not liable for moneys collected and misappropriated before the tiond. As given, the charge is certainly obscure, if not contradictory. But as the evidence of Hetten negatives any such misappropriation we do not think the charge affords ground for reversal. In this connection it may be remarked that the assignment of errors to the charge reads: “The court erred in the instructions given to the jury in this, that said instructions directed the jury to find interest on the amount proved to be due from the 1st day of January, 1869.” In strictness, this does not bring up the charge at large for revision. It is contended that the verdict of the jury is against the evidence, especially as far as regards the sureties. An examination of the evidence of Lane and Hetten shows that [290] the controversy was rather about credits claimed than about the debits in the account. The evidence certainly did satisfactorily establish that Hetten was entitled to various credits which had not been allowed by Lane. The jury by their verdict reduced the amount claimed largely—from §4,857 to $3,000—and must have given defendant the benefit of those credits which the evidence most strongly established. It is equally clear that they did not allow all the credits to which Hetten testified that he was entitled. The evidence of Hetten and Lane is conflicting as to the amount paid over on October 29, 1867. In such a case a finding either way will not ordinarily be disturbed. The claim for commissions on amount collected as agent is contradicted by Lane and by Vaughan. The claim for amount due on pay accounts as assistant assessor is indirectly contradicted by the testimony of Brauback. The item of $300, assessed against th e Hew Braunsfel Manufacturin g Company, though never collected, appears a correct charge underthe evidence, as having been lost to Lane by Hetten’s neglect. As to these and one or two other items, the-evidence is such that the verdict of the jury cannot be disturbed, and if they are not allowed as credits the verdict of the jury is substantially correct. A careful examination of the evidence leads us to the conclusion that the verdict cannot be said to be against evidence. There was no error in overruling the exceptions to the petition. The manner in which the account filed with the petition was made was certainly objectionable, and if the point had been made we think the plaintiff might have been required to state his account, showing only the transactions from the date of the bond. But as presented in the record, the rulings in the exceptions and the other points assigned for error are not regarded as presenting any question requiring discussion. The judgment is affirmed. Aeeikmed.