
    BEXAR COUNTY v. McASKILL.
    (No. 7291.)
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 11, 1925.
    Rehearing Denied March 11, 1925.)
    1. District and prosecuting attorneys <@=5(6) —District judge held without authority to approve account of district attorney. ,
    Rev. St. art. 3895, requiring district attorney to make to district court a sworn statement, showing amount of fees collected, etc., does not give district judge authority to approve or take any action on such report.
    2. Judgment <9=560 — District court’s approval of account of district attorney not res judi-cata in suit by county1 to recover fees.
    The approval by district judge of account of district attorney as to appropriation of fees does not, in view of Vernon’s Ann. Pen. Code 1916, art. 113b, have dignity of a solemn judgment which cannot be attacked in proceeding by county attacking legality of account and seeking to recover such fees; nor is the approval res judicata in such a proceeding.
    Appeal from District .Court, Bexar County; Robt. W. B. Terrell, Judge. .
    
      Action by tbe County of Bexar against D. A. McAskill. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    T. J: Newton, of San Antonio, for appellant.
    W. S. Anthony and O. B. Black, botb of San Antonio, for appellee.
   ELY, C. J.

Appellant sued appellee, tbe district attorney of tbe Tbirty-Seventb judicial district of Texas, to recover $3,903.-64, for fees collected by bim and appropriated, wbicb were claimed to be tbe property of appellant. After bearing tbe evidence, tbe following judgment was rendered:

“On this the 3d day of May, 1924, came on to be heard the above entitled and numbered cause, and the general demurrer of the defendant having been heard and overruled, and the special exceptions of th'e ’defendant having been heard and overruled, the plaintiff and defendant having appeared by their attorneys and the evidence having been offered by the plaintiff and by the defendant, and the court having heard the same and having heard the argument for the plaintiff and defendant upon the law and the evir dence in the case, the court is of the opinion that the judgment prayed for herein could not be rendered without making a collateral attack on what this court has deemed to be a judgment of the Thirty-Seventh district court.
“It is therefore ordered, adjudged, and decreed that the plaintiff take nothing by its suit and that the defendant have and recover of and from plaintiff all costs in this behalf expended, for which execution may issue. This decree, however, is without prejudice to any rights plaintiff may have to proceed in the Thirty-Seventh district court for the relief herein prayed for by plaintiff.”

In the second paragraph of tbe judgment it is decreed that appellant could not recover because a judgment of recovery would be “a collateral attack on what this court! has deemed to be a judgment of tbe Thirty-Seventh district court,” and tbe last clause is virtually a, dismissal of tbe suit without prejudice to appellant.

It appears from the record that after tbe suit, now being considered, was filed in tbe Seventy-Third district court, appellee filed an 'amended statement of bis “final account for the year beginning December 1, 1922, and ending December 31, 1923,” and tbe judge of tbe Tbirty-Seventb district court entered tbe following order:

“It is hereby ordered, adjudged, and decreed by the court that the original annual account be and is hereby amended so as to read as set forth in the foregoing, and the clerk of this court is hereby directed to file same as part of the records .of this court.”

Tbe amended statement was filed in the Tbirty-Seventb district court on April 14, 1924, and was intended as an amendment of an account filed on January 31, 1924, and was evidently obtained to be used against the pending case in tbe Seventy-Third district court. Tbe trial court did not pass bn tbe facts of this case nor apply the law thereto, but merely decided tbe cause on tbe ground of res adjudicata. It is stated in tbe brief of appellee, after setting out his construction of the statutes cited by bim and bis contentions under tbe same:

“Judge Anderson in his decree (herein copied) found this to be a correct interpretation of the law, and Judge Terrell, in his decree, found the same to be a correct interpretation of the law.”

In bis order approving tbe amended statement of appellee’s account, Judge Anderson, of tbe Tbirty-Seventb district court, did not pass on any interpretation of any statute of the state, and neither did Judge Terrell. The latter did not attempt to bold that Judge Anderson’s approval of tbe account was correct, but merely that be bad obtained jurisdiction of the cause and decided it. In neither particular was tbe judgment of tbe Seventy-Third district court correct Tbe Tbirty-Seventb district court had not obtained, jurisdiction of tbe cause pending in tbe trial court from wbicb this appeal was perfected, nor bad tbe former court attempted to decide tbe issues in this cause. In tbe first named court tbe account, in an ex parte proceeding, was approved by an order entered on it by a district judge, and no judgment was ever entered on tbe minutes of that court. There is no evidence that any one bad notice of tbe presentation the account, but in an ex parte proceeding an order to file tbe account is made by a district judge wbicb was given such force and dignity by a district court as to oust its own jurisdiction of tbe case before tbe ousting order was made. Tbe order of tbe district judge who approved the amended account did not pretend to be based on any law, but merely on the testimony of an employee who made clear “the actual and clear meaning of said original annual account.”

No authority is given a district judge to take any action on any report required of a district attorney or other officer; tbe only provision of Rev. St. art; 3895, being that be “shall, at the close of each fiscal year, make to the district court of tbe county in which be resides a sworn statement showing tbe amount of fees collected by bim during tbe fiscal year, and tbe amount of fees charged and not collected, and by whom due, and tbe number of deputies and assistants employed by bim during tbe year, and tbe amount paid, or to be paid each.” There is no direct authority in the statute for tbe approval or disapproval by tbe district court of tbe statement, and certainly there is nothing in tbe law that would give to tbe approval of tbe account tbe dignity of a solemn judgment of the court wbicb could not be attacked or inquired into in a proceeding attacking tbe legality of tbe account. No such intention upon tbe part of tbe lawgivers can be obtained from tbe statute. No authority is given to tbe district court by tbe statute to try tbe legality of tbe account wben it is made by tbe officer, and tbe district court of tbe Tbirty-Seventb judicial district bad no authority to render an ex parte order which would prevent tbe county from inquiring into the validity and legality of tbe appropriation of fees of office by tbe district attorney.

Tbe only judgment of tbe judge of the Tbirty-Seventb district court was that tbe original account be amended and that tbe amendment be filed as a part of tbe records of tbe court. Tbe judge bad no authority to pass upon such reports, for it is made bis duty to charge tbe grand jury at tbe session of tbe district court next succeeding tbe 1st day of December, which until the Tbirty-Seventb Legislature made it January 1, was tbe end of the fiscal year, that it was their duty to make a report on such accounts as to fees of officers to tbe district court, at tbe conclusion of tbe session of tbe grand jury. Article 113b, Vernon’s Ann. Penal Code. Tbe filing of tbe account by tbe district judge, even though be had pronounced it correct, could not make an illegal account, if it was illegal, valid and legal, and could not preclude tbe county from suing for and recovering tbe fees if entitled to them. McKinney v. Robinson, 84 Tex. 489, 19 S. W. 699; Slaughter v. Knight (Tex. Civ. App.) 184 S. W. 539; Jeff Davis County v. Davis (Tex. Civ. App.) 192 S. W. 291.

Tbe judgment is reversed and tbe cause remanded for a trial on tbe merits. 
      <§ux;For other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
     