Red River County v. Graves , 288 S.W. 544 ( 1926 )

The suit by the appellant county was to recover in its own right sums in excess of $2,000 retained by its treasurer in 1919 and in 1920, as commissions he was entitled to (article 3875, Vernon's Statutes as amended in 1920); whereas, the proof at the trial was that such excess did not belong to appellant, but to certain road districts within its limits.

The question (and only one) presented by the appeal is: Did the trial court err when he determined that in such a suit appellant was not entitled to recover on such proof? We think the answer to the question should be in the negative.

It has long been settled law that "a recovery cannot be had on a cause of action not alleged in pleadings, however well it may be supported by proof." Middlebrook v. Zapp, 73 Tex. 29, 10 S.W. 732; Hall v. Jackson,3 Tex. 305; Bray v. Boyles (Tex.Civ.App.) 241 S.W. 1057; and see Watson v. El Paso County (Tex.Civ.App.) 202 S.W. 126, where it was held that while a county might sue a county tax collector for funds belonging to a drainage district within its limits, it could not recover in such a suit "upon an allegation that such funds belonged to and had been collected for the county."

The cause of action shown by the proof was the act of the county treasurer in wrongfully retaining possession of money belonging to certain road districts existing in Red River county by virtue of law (chapter 31, Spl. Laws 1925), while the cause of action shown by the pleadings was the act of said treasurer in retaining such possession of money belonging to said county. Appellant was not entitled to recover on the cause of action set up in its pleadings because it failed to prove it, and it was not entitled to recover on the cause of action it proved because it failed to allege it.

The judgment is affirmed.