Brown v. Ruse , 69 Tex. 589 ( 1888 )

Stayton, Associate Justice.

This cause was before this court at its last term, and it was then held that the indorsement made by the county judge on the claim now sought to be enforced, was not sufficient to show that the claim had been audited. (Brown v. Reese, 67 Texas, 318.) Nothing was there shown except the claim and its endorsement.

It now appears that the voucher given by the superintendent of schools for the county was filed in the county commissioners court for audit, and that, after the court had allowed the claim, the county judge, under its direction, made on it the following Indorsement:

“Aug. 13, 1888. The court find $291.31 due on this claim.

“James Brown,

“County Judge.”

It further appears that no formal entry of this action of the court was then made* on the books kept for the record of its proceedings had in its ordinary business, because the court so directed; not believing, as the court was sitting as an auditorial board on school claims, that this was contemplated or required. It clearly appears that the failure to make the proper entry did not result from the fact that the court did not allow the claim in full, or that it was unwilling to make such a record of its action as was proper to evidence the fact that the claim had been allowed. It further appears that no book was then kept in which entries were made of the claims of teachers, audited and allowed, but this was evidenced by the indorsements made on claims which were filed.

On February 11,1884, the county commissioners court, without any notice to the appellee, made an order, which was entered on its minutes, in which it recited the fact that the claim at a former term had been ascertained to be due; but it directed, as there was no money in the treasury to meet claims against school districts, that no draft should issue on it, nor tax be levied to meet that and other similar claims which were therein stated to have been formerly ascertained to be due to teachers named; and this order, concluded with the following words: “As we do not believe said claims are legitimate claims against county or the communities where the same originated.”

Proof was made by members of the commissioners court that the claim was audited and allowed at the time the county judge made the indorsement on the claim, and there can be no doubt as to that fact, nor of the fact that the failure to enter the approval of the claim on the minutes of the court was due solely to the fact that the court thought it unnecessary.

The written evidence made under the directi on, of the court, and in part properly entered on its minutes, is sufficient to show that the claim was appoved at the date of the indorsement made on the same, and no subsequent action of the court, had without notice to the appellee, could affect his right, if this could have been done at all after the close of the term at which the claim was allowed.

The plaintiff pleaded the facts fully, and in answer the defendants urged demurrers and a general denial. The demurrers were properly overruled, and, as the pleadings stood, the appellee was entitled to a judgment without offering any evidence. (Sansom v. Mercer, 5 S. W. Rep., 62.)

It is claimed, however, that the general denial was a sufficient answer, as the amended petition, on which the same was tried, was not sworn to. The statute does not expressly require that a petition in such cases shall be sworn to, though this is the usual practice, and, were it necessary, the objection might be waived, as must be held to have been done in this case. There is no question as to the jurisdiction of the district court, and, as no objection is made to the manner in which the judgment directs the payment of the appellee’s claim, the judgment will be affirmed.

Affirmed.

Opinion delivered February 3, 1888.