State v. Harvey (15 S.W.2d 82, 1929)

BLAIR, J.

Appeals from judgments rendered in consolidated causes of action and cross-actions, which grew out of the following facts and transactions:

On January 23,1925, A. R. Harvey, tax collector of Lampasas county, collected taxes at Lometa in said county, and the same day made deposits in the Lometa State Bank as follows: “To A. R. Harvey, Tax Collector,” the sum of $4,373.16; and to “Highway, A. R. Harvey,” the sum of $697.72 — totaling $5,070.88. The deposits represented $246.06 in cash, $2,278.46 in checks on the said Lom-eta State Bank, and $2,546.36 in cheeks on other banks, all of which were accepted by Harvey from taxpayers in payment of taxes due. The next day, January 24,1925, Harvey drew two drafts on said Lometa Bank, one for $4,373.16, and the other for $697.72, both payable to the People’s National Bank of Lampasas, Tex., which was the state and county depository for Lampasas county. These drafts and other checks not involved here were on the same day credited to Harvey’s tax collector account, by the following entries made on the depository bank’s books: “To Á. R. Harvey, County, $2,197.84; to A. R. Harvey, State, $2,175.32; to A. R. Harvey, Highway, $817.92.”

The depository bank then forwarded said drafts to the Lometa State Bank through the Federal Reserve. Bank. The Lometa Bank marked them “Accepted,” and paid and charged them against the accounts in the name of Harvey, and attempted to pay them by issuing exchange on the City National Bank of Galveston, which exchange the Federal Reserve Bank forwarded to the Galveston Bank, and the Galveston Bank refused payment on account of having no funds belonging to the Lometa State Bank. Before the Federal Reserve Bank again presented these items for payment, the Lometa State Bank had closed its doors, and its assets and affairs had been taken over by the banking commissioner of Texas for liquidation. The Lometa State 'Bank was operating under the State Bank Guaranty Law of Texas. When the drafts in question were later returned, the depository bank charged Harvey’s tax collect- or account with the amount of the drafts by book entries.

Whereupon the state of Texas and Lam-pasas county each sued A. R. Harvey, tax collector, and his bondsman, the Globe Indemnity Company, for the taxes alleged to have been collected and not placed in the county’s depository. In the alternative, the state and L