
    Kate Timon et al. v. San Patricio County.
    (Case No. 1484.)
    1. Suits against defaulting sheriffs — Pleading.— The'proper practice in suits against defaulting officers, for a failure to pay over public funds that have come into their hands, where interest is sought to be recovered, is to state fully the facts, giving the specific amounts, and the dates,of collection of the various sums of money upon which the claim for interest is based.
    2. Same.— By the twenty-third section of the act of August 21,1876 (R, S., art. 4762), the tax collector is required to pay over to the county treasurer, reserving his commissions, whenever he has collected as much as §500. A judgment against a defaulting tax collector should recite the date from which interest allowed is calculated on public money collected.
    Error from San Patricio. Tried below before the Hon. D. P. Harr.
    Suit by the county of San Patricio against plaintiffs in error, Kate Timón, surviving wife of H. Timón, deceased (former sheriff of San Patricio county during the years 1876-80), and John Timón and Nicholas Bluntzer as sureties on the official bonds of the sheriff, H. Timón, for certain moneys alleged to be due the county by said sheriff at his death.
    The defendant pleaded limitation of two and four years, and full and final settlement.
    An auditor was appointed, who found that the deceased sheriff was at the time of his death indebted to the county a balance of $1,261.23 of general county funds, and $405.32 special funds, to' which report exception was made, on account of certain claimed credits, amounting to $390.35 of special fund, having been disallowed. The report of the auditor was approved for $1,276.20," for which sum judgment final was rendered, with interest thereon from the time when the same should be paid into the treasury, without specifying dates of collection. No calculation of interest was made by the auditor, and plaintiffs in error-claimed that the interest as calculated by the court was excessive and erroneous, and that interest on the total amount as found due by the auditor, after the deduction of $390.35 on the date of judgment at the legal rate of eight per cent., would be just and proper.
    
      T. H. O' Callaghan, for plaintiffs in error.
    
      McCampbell & Givens, for defendant in error.
    The plaintiffs in error ask that the judgment of the court below be corrected and reformed. They claim that they are not liable for the interest mentioned in the judgment. The judgment is for twelve hundred and seventy-six TVo dollars ($1,276.20), u with interest thereon from the time the same should have been paid into the county treasury, to wit, the sum of one thousand and sixty-nine dollars ($1,069.40), amounting in all to the sum of two thousand three hundred and forty-five -/¡ft dollars ($2,345.60).” Plaintiffs in error claim that judgment should have been rendered against them for the sum of $1,276.20, less a deduction of $390.35, that is to say, for $885.85.
    An auditor had been appointed, and the judgment recites that “it is the opinion of the court that the auditor’s report is correct, except that the same should have allowed a credit of $390.35 in favor of the defendants.”.
    . The auditor does not mention interest in the report, but simply states what was the amount of taxes in the hands of Timón at the several dates mentioned in the report, and which should have been paid into the county treasury of San Patricio. The question before this court is, was the interest correctly allowed by the court below on the amount found to be due the county by the auditor?
    For defendant in error it is submitted that the law gives interest to the county, to be calculated from the time the money should have been paid into the county treasury.
    The report shows that there was due the county from the sheriff and collector, Timón, the sum of $2,247.02 in 1876; in 1877 this balance was $2,222.02; in 1878 the balance was $2,926.23; on September 7, 1879, the balance was $1,261.23.
    This court has decided that in a suit upon an official bond of a collector for his failure to account for taxes, the defendant is liable for interest from the time the taxes were payable, and that it was a suit on the bond and not on an open account. Evans v. The State, 36 Tex., 323. See Chevallier v. State, 10 Tex., 315.
    Art. 4762, R. S., provides that “the collector of taxes shall, whenever he may receive as much as five hundred dollars or more belonging to his county, pay over the same to the county treasurer, only reserving bis commissions on the same.”
    Section 23 of the act providing for the collection of taxes, approved August 21, 1876, is in the same language.
    In the absence of a statement of facts and bills of exception, it will be presumed that the evidence was sufficient to support the judgment of the court below as to any question of fact that might have been in issue by the pleadings.
   West, Associate Justice.

The only assignment of error that it is deemed necessary to consider is the one bringing in question the correctness of the judgment of the district court on the subject of interest.

^Neither the original petition nor its exhibits contain any averments or allusions to the subject of interest, except that in the concluding sentence of the prayer for relief, the pleader asks for interest on the balance due from the time the same should have been paid into the county treasury.

It would seem to be the better practice in suits of this character against officers for the failure to pay over public funds that have come into their hands, where interest is sought to be recovered, for the petition to state fully the facts, giving the dates, amounts, etc., upon which the claim for interest is based. The auditor’s report, too, is silent as to the amount of interest that is due by the plaintiffs in error to the county. Tet this item, which was allowed in this case by the district court, is so important an element in this judgment that it is nearly equal in amount to "the principal sum recovered.

The principal sum named in the judgment is composed of the two amounts found by the auditor to be due by the plaintiffs to the county, for the special and general court funds that the defaulting officer had collected at various dates from 1876 up to 1879. On this principal sum, which is fixed and ascertained by the judgment, interest is calculated, according to the terms of the judgment, from the time when this principal sum ($1,276.20), twelve hundred and sev- ■ enty-six dollars, should have been paid into the county treasury. The amount of interest found by the judgment of the court to be due on the above named sum is one thousand and sixty-nine T\°ir dollars ($1,069.40). What precise date or dates were ascertained by the court, as the time when this money should have been paid into the county treasury, and consequently as the correct date or dates for which the officer would be chargeable with interest, we have been unable satisfactorily to determine after a careful examination of the record.

The twenty-third section of the act of August 21, 1876, provided “ that the collector of taxes shall, whenever he may receive as much as five hundred dollars or more belonging to his county, pay over the same to the county treasurer, only reserving his commissions on the same.” The same provision was in force at the time of the trial, having been transferred from this act to the Eevised Statutes. R. S., art. 4762. ’

[Opinion delivered January 12, 1883.]

We are unable, from the judgment of the court or the auditor’s report, to ascertain with certainty how, or by what process, the item of interest was ascertained. It cannot be arrived at by computing interest on the principal sum found due, as it is in excess of any amount of interest that could have accrued on that particular sum for the time that it appears from the record the collector failed to pay. it over. For this reason it is believed that the judgment should be reversed, in order that there may be a full and more satisfactory inquiry had in the district court as to the amount of interest really due from the plaintiffs in error to the county.

The judgment is reversed and cause remanded.

Reversed and remanded.  