We are of the opinion that, under the undisputed facts of the case, the court below erred in not sustaining the plea of limitation as interposed by the defendants. In arriving at this conclusion we have entirely ignored the order of the Commissioners Court of Leon County, made on the 11th day of February, 1884, by which that court distinctly repudiated the plaintiff's claim. That being an ex parte proceeding, and unknown at the time to the plaintiff, could not affect his rights nor start the statute of limitation. Leach v. Wilson County, 68 Tex. 354; Brown v. Ruse, 69 Tex. 592 [69 Tex. 592]. In the first case cited it is said, however, by the Supreme Court, that "We are of opinion that if the passage of the order had been made known to plaintiff by any means, such order and notice would have put in operation the statute of limitations." This declaration is a clear announcement of the doctrine, that although a claim against the county may have been duly audited and allowed by the Commissioners Court, still it may be subsequently repudiated by the action of that court, to such an extent at least as to give the holder of the claim an immediate right of action to enforce the payment of his debt, and that consequently limitation will commence contemporaneously with the accrual of the right of action. We have no doubt of the correctness of this position; and further, that article 3210 of the Revised Statutes, which has been cited by appellee, has no application to the orders of the County Commissioners Court in approving claims or accounts against the county. Leach v. Wilson County,62 Tex. 331. *Page 11
We think that the admitted facts show that the Commissioners Court repudiated the claim of the plaintiff more than four years before the institution of this suit, and therefore that the claim was barred by limitation. We leave out of consideration, as we have before stated, the order of February 11, 1884, though circumstances are not lacking sufficient to indicate that the plaintiff in fact had learned of the passage of this order at a date amply remote to have completed the bar of limitation prior to the time of suit. We think the facts that the Commissioners Court had repeatedly, both before and after the 11th day of February, 1884, refused the request of the plaintiff to issue any draft or warrant upon the treasurer for his claim, or to make any provisions for its payment as contemplated by law, coupled with the fact that the plaintiff soon after the claim had been audited in August, 1883, placed it in the hands of an attorney at law for collection, clearly show a repudiation of the claim by the county and its authorities, and a knowledge of this fact upon the part of the plaintiff. These facts are inconsistent with the hypothesis that the Commissioners Court still recognized the claim as valid, or as a just demand against the county which the court intended to be paid, or that it would give effect to its original order allowing the claim. The facts enumerated are equally inconsistent with ignorance upon the part of the plaintiff of the action of the court in these particulars, and of its hostile intention in reference to the payment of his claim.
By the Act of 1883, the Commissioners Court was required, upon auditing the claim, "to cause to be issued in favor of the holder thereof a warrant upon the county treasury," etc., and to provide for the payment of the same in the manner as specified in said act. Gen. Laws 18th Leg., Reg. Sess., p. 41. When the Commissioners Court refused the requests of the plaintiff to issue such warrant and to levy the proper tax, such action gave him at that time just as perfect a right to then bring suit for the enforcement of his demand as he possessed when he did in fact institute the suit.
The acts and omissions upon the part of the court of which special complaint is made in the petition, though perhaps more formal and occurring at a later date, are of the same character as, and amount to no more in legal contemplation as affecting the question in hand than those which occurred more than four years before the institution of the suit. Limitation, of course, began to run from the time when the plaintiff might have first begun his suit. This he might have clone, according to the averments of the petition, before the 11th day of February, 1884; and that he was advised of this state of the case, and of the intention of the court to repudiate the claim even as early as that date, is evidenced, as we have before observed, by the facts that "soon after August 13, 1883, he placed the claim in the hands of an *Page 12 attorney for collection, and that ever since the county has refused payment of the claim." Caldwell County v. Harbert,68 Tex. 321.
We conclude that the judgment of the District Court ought to be reversed and here rendered in favor of the appellants.
Reversed and rendered.
Adopted March 15, 1892.