On Motion for Rehearing.
Both parties have filed motions, requesting that the case be reinstated and decided upon the merits.
We held in the original opinion that because the controversy had not been transferred to this court in accordance with any statutory provision regulating such matters, or any rule made by the Supreme Court, we acquired no jurisdiction, and the judgment was reversed and the appeal dismissed.
In their motions, both of which are verified by counsel, it is stated for the first time that there was an agreement in open court that the pleadings correctly stated the facts, and that the court might determine the questions of law involved upon the facts so stated. The judgment recites that the trial judge heard the evidence. Both parties admit that no evidence was introduced, and attached to one of the motions is an ex parte affidavit by the district judge, which recites that “said cause was tried upon the admissions of the plaintiff and defendant through their attorneys of record, said admissions being made in open court and in the pleadings of the parties; that judgment was based upon such admissions and the findings of fact, prepared and filed by me in said cause and made a part of the record therein, were based upon the admissions of the parties made as aforesaid,” etc. But they do not say that the court made any entry of record ,of their agreement as is 'required by district and county court rule No. 47, nor does the record show any such entry.
Both parties insist that the recital in the judgment that the court heard the evidence is binding upon this court, and because neither party has attacked the correctness of the court’s finding of fact, it is our duty to consider the case upon the merits.
In the case of Oilmen’s Reciprocal Ass’n v. Gilleland (Tex.Civ.App.) 285 S.W. 648, this court decided a controversy upon an agreed statement as to what the contract of insurance stipulated. This statement was signed by counsel. After the decision in this court, counsel entered into a written agreement, which recited that they had erroneously stated the particular provision in the policy in the original agreed case, and asked for a reconsideration in the light of the change made in the statement of facts. Relying upon the long list of authorities cited in the case of Parrish v. Wright (Tex.Civ.App.) 293 S.W. 659, 660, holding that a statement of facts could not be so altered, we overruled the motion without a written opinion. Writ of error was granted, and the Commission of Appeals (291 S.W. 197) held that this court should have permitted the statement of facts to be altered by agreement of counsel upon motion for rehearing, and reversed our judgment.
The effect of that decision was to change the rule which has obtained in this state for more than half a century, that a statement of facts cannot be altered, modified, or corrected in the appellate court. While we still adhere to the principles announced in the original opinion herein, and are convinced that we have no jurisdiction, in order to save time, and in view of the hold*772ing in the Gilleland Case, we have decided to consider the controversy upon the merits. Our action in this behalf, however, is not to be taken as an approval of the slipshod method in which this case was tried nor any authority which indicates that it is our duty on motion for rehearing to overlook the defects in this record and pass upon the merits.
In addition to the statement made in the original opinion, we will add the substance of the material findings of fact filed by the court:
1. Harper was elected and qualified as treasurer for Tom Green county for a term of two years, commencing January 1, 1933, and served until his death on May 6, 1934. His reports during the time were examined and approved by the commissioners’ court.
2. On August 1, 1933, the commissioners’ court made its order, allowing the treasurer a commission of one per cent, of all moneys received by him, and one per cent, of all moneys disbursed, not to exceed the sum of $2,000 in any one year.
3. Harper issued a voucher to himself in the sum of $659.74, representing one per cent, commissions on receipts and disbursements for the month of January, 1934, and issued another voucher for $1,340.-26 as his compensation from January 1, 1934, to May 6, 1934. The commissions of one per cent, on receipts and disbursements during that period amounted to $3,-424.08.
4. He made his reports regularly to the commissioners’ court, and in each instance said reports were fully examined, approved, and ordered entered of record by the court.
8. George A. Bond qualified as county treasurer on May 15, 1934, and served until the end of the year.
12. The total receipts from January 1, 1934, to May 6, 1934, amounted to $216,-903.91, and the total disbursements during the same period amounted to $122,-937.35.
14. On September 11, 1934, the commissioners’ court entered an order fixing the commissions of George A. Bond as treasurer at one-half of one per cent, on receipts and disbursements from the time of his appointment until the remainder of the term, such order being made without the knowledge of Motley, the administrator.
15. About December, 1934, the county paid Bond the sum of $983.53, being one-half of one per cent, of all receipts and disbursements, from May 15, 1934, to December 31, 1934.
The court’s conclusions of law are in substance as follows:
1. The order of the commissioners’ court, dated August 1, 1933, fixing the treasurer’s commission as one per cent, of all receipts and disbursements, was effective to fix the treasurer’s commissions at one per cent, until the death of Mr. Harper on May 6, 1934, in view of the orders approving the commissions retained in January and February, 1934.
3. Prior to his death, Harper earned only the sum of $684.93 in 1934, that being such a proportional part of $2,000 as the time from January 1, 1934, to May 6, 1934, bears to the whole of said year.
4. After his appointment, George A. Bond was entitled to a commission of at least one-half of one per cent, on receipts and disbursements not to exceed $1,315.07, that being such a proportional part of $2,-000 as the time from May 15, 1934 (the date of his appointment), to the end of 1934 bears to the whole of that year.
5. Bond’s commissions being $983.53, and the county having paid him that amount, it is entitled to recover that sum from the estate of the deceased; the county not being entitled to recover more than it has paid to. Bond.
Judgment was entered in accordance with the court’s findings, from which Motley, the administrator of Harper, prosecuted this appeal.
The substance of the first proposition is that the court erred in applying that part of Rev.St, art. 3898, which reads as follows: “Whenever such officer serves for a fractional part of a fiscal year, he shall nevertheless file his report and make settlement for such part of the year as he serves, and shall be entitled to such proportional part of the maximum allowed as the time of his services bears to the entire year.” We sustain this proposition. That article applies only to the officers mentioned in what is known as the Maximum Fee Bill, of which the article is a part. Rev.St. art. 3883, as amended (Vernon’s Ann.Civ.St. art. 3883) which specifies the officers coming within the provisions of the act, does not mention county treasurers.
*773The appellee cites the case of Davenport v. Eastland County, 94 Tex. 277, 60 S.W. 243. In our opinion that case is not authority in this controversy. In that case the county treasurer had qualified November 1, 1896, and served until his successor qualified on November 19, 1898, or eighteen days more than two years. Between November 1st, when his term of office expired, and November 19th, he collected and paid out a considerable sum of money. The question was whether he was entitled to full commissions on the moneys received and paid out or only such proportion of $2,000 as the time he served over two years bears to the whole year.
In Hill County v. Sauls (Tex.Civ.App.) 134 S.W. 267, 269, Rainey, C. J., said:
“Had he been allowed to retain the full commissions on the amount collected and paid out, injustice would have been done his successor, as appellant would have gotten a greater proportion of the $2,000 than he was entitled to.
“But such is not this case. Here, the treasurer served for more than 12 months, and he was entitled to commissions on the money as it was received and paid out, and the sum he received for commissions, not exceeding $2,000 for that year, the county is in no attitude to complain.”
See, also, Charlton v. Harris County (Tex.Civ.App.) 228 S.W. 969.
In Rev.St. art. 3941, the Legislature, in providing for the compensation to be paid county treasurers in the form of commissions on moneys received and disbursed by him, empowered the commissioners’ courts by order duly entered to fix the per cent, to be paid him. An order was made in this case, and his reports showing that he had deducted his commissions during January and February were duly approved by the commissioners’ court. If Harper had served after the expiration of his term longer than two years, under article 16, § 44, of the Constitution, which requires an officer to hold his office for the statutory period and until his successor has qualified, the Davenport Case would necessarily control our disposition of this controversy. Article 3941 provides that the county treasurer shall receive commissions on the moneys received and paid out by him, said commissions to be fixed by order of the commissioners’ court as follows: “For receiving all moneys, other than, school funds, for the county) not exceeding two and one-half per cent., and not exceeding two and one-half per cent, for paying out the same; provided, that he shall receive no commissions for receiving money from his predecessor nor for paying over money to his successor.”
Article 3943 (as amended by Acts 1931, c. 346, § 1, Vernon’s Ann.Civ.St. art. 3943) limits the amount of compensation to be paid him for any one year to $2,000.
In the case of Harris County v. Charlton, 112 Tex. 19, 243 S.W. 460, 464, 245 S.W. 644, the Supreme Court said:
“The commissions accrued to the benefit of the county treasurer as he handled the various funds intrusted to his care. Under article 928, R.S.1895, he was required to make reports to the county commissioners’ court at each regular term thereof, but he was handling both the funds of the county and of the available school fund from his induction into office, and he was entitled to commissions upon the funds so handled as they were received and disbursed by him.
“When his limit of $2,000 was reached in collecting and disbursing these funds, in whatever month, then his right to collect and retain further commission from either fund ceased.”
To the same effect is the holding in Presidio County v. Walker, 29 Tex.Civ.App. 609, 69 S.W. 97.
Whether Bond was entitled to compensation, and upon what basis, is foreign to the inquiry, and we do not pass upon that question. It may be admitted that the law as it exists may be the cause of injustice in cases of this character, but that is a matter within the power of the Legislature to remedy, and with which the courts have no authority to interfere.
For the reasons stated, the judgment is reversed and the cause remanded.