I do not agree to the disposition of the proceedings. The original application for mandamus filed by the First National Bank of Mt. Pleasant before the judge of the trial court alleged, in substance, that the said bank was the official depository of the county of Titus, legally so made by the commissioners' court in compliance with and according to the requirements of the statute, and that the county treasurer refused on application to transfer and deliver over the county funds. The face of the allegations evidenced in legal effect full legal authority of the First National Bank to have and to hold at once as official depository the funds, and the only controversy becomes the mere refusal of the treasurer to deliver or transfer the funds to the designated depository. Under such alleged situation, the only remedy is to compel the delivery or transfer of the funds to the proper custodian. This may have been the proper thing for an order in vacation by the trial judge. But when the answer of the county treasurer was later filed, a complete and different legal controversy was presented for adjudication by the trial judge. The answer controverted the legal authority of the First National Bank to be the custodian or depository, upon the ground that the order of the commissioners' court designating a depository was not done in the way and manner required by the terms of the statutes, and that in consequence the treasurer was not legally authorized to deliver or transfer the funds. In view of this answer, the trial judge could not legally issue a peremptory order of transfer of the funds to the First National Bank without first adjudicating the question of authority of the First National Bank to be the depository. The entire proceedings then became a controversy triable only in the term time of the court, and not in vacation, if the question of fact was presented of whether or not there was a legal compliance with the terms of the statute by the commissioners' court in entering the order and a jury trial thereon was demanded by the county treasurer. Presenting a question of fact, as it is believed the answer did, and demanding a trial before a jury on the fact, as the county treasurer did, the trial judge had but one legal alternative in a vacation proceeding, and that was to direct the entire proceedings to be filed and passed for determination to the regular term of the court. It was this failure to pass the case to the regular term of the court for trial that authorized jurisdiction in the appellate court, and upon no other ground may the power to compel trial be exercised. The fact that the funds were attempted to be transferred under the vacation order would not defeat the very power of this court to now adjudicate the application before us, for the real subject-matter of pending controversy is, legally speaking, the right of the county treasurer to have a trial before a jury at a regular term upon the contest of the validity of the order of the commissioners' court appointing a county depository for the two years required by the statute. The transfer or delivery of the funds would be regarded as done under protest for the sworn reply in this court of the treasurer is as follows:
"Fearing that if he did not attempt to comply with the order and decree of the respondent, pleaded in plaintiff's original petition filed herein, he would be in contempt, he gave his check payable to the First National Bank of Mt. Pleasant, Tex., drawn on the State National Bank for the funds in controversy. Immediately thereafter plaintiff instructed the State National Bank that if this honorable court should grant a restraining order on the plaintiff's petition, to immediately stop the payment of the draft that had been given to the said State National Bank as aforesaid. Plaintiff says that giving said check to the First National Bank of Mt. Pleasant was under duress and under fear that if it was not so given that plaintiff would be subject to be punished for contempt in violating and refusing to comply with respondent's judgment and order involved in this case, and that at that time plaintiff believed that respondent would imprison plaintiff in jail if he did not comply with said order."
The delivery or transfer of the funds is only an incident of the proceedings, and not the real legal ground of the controversy. The legal authority of the bank to be the depository is the controversy pending, and must be determined. For if the want of legal authority of the First National Bank to be the depository be shown to be existing, the want of legal authority of the county treasurer to surrender possession to such bank of the funds is also existing. *Page 338