Anchor v. Wichita County Water Improvement Dist. No. 2, 1730-6158.

• Decision Date: 30 December 1933
• Docket Number: No. 1730-6158.,1730-6158.
• Citation: 66 S.W.2d 657
• Parties: ANCHOR v. WICHITA COUNTY WATER IMPROVEMENT DIST. NO. 2.
• Court: Texas Supreme Court

Page 657

66 S.W.2d 657

ANCHOR v. WICHITA COUNTY WATER IMPROVEMENT DIST. NO. 2.

No. 1730-6158.

Commission of Appeals of Texas, Section A.

December 30, 1933.

Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.

Suit by the Wichita County Water Improvement District No. 2 against Mrs. Marie Anchor. Judgment for plaintiff, and defendant appealed to the Court of Civil Appeals, which certifies questions.

Question answered.

Bonner, Bonner & Childress, of Wichita Falls, for appellant.

A. H. Britain, of Wichita Falls, for appellee.

HARVEY, Presiding Judge.

The Court of Civil Appeals at Fort Worth has submitted the following certificate containing certified questions, to wit:

"In the above entitled cause Mrs. Marie Anchor, defendant in the court below, has prosecuted a writ of error to this court from a personal judgment rendered against her in favor of the Wichita County Water Improvement District No. 2, plaintiff in the court below, for assessments made by the plaintiff against approximately 300 acres of land owned by her and situated in plaintiff's water improvement district, and for foreclosure of a lien on that land to secure the payment of the personal judgment.

"The suit was instituted against Mrs. Anchor to recover a personal judgment against her and others not necessary to now notice for the amount of the assessments made by the plaintiff for the years 1924 to 1928, inclusive, with foreclosure of the assessment lien on the land to secure the payment of such judgment. The land is situated in the water improvement district and approximately 200 acres was classified by plaintiff's board of equalization as irrigable land, and approximately 100 acres as non-irrigable land, and was included in the rolls made up by the board as such; and thereafter in the year 1923 bonds in an aggregate sum of $1,525,000.00 were issued and sold by the plaintiff on an equitable benefit basis, according to which there was an aggregate assessment of $35.25 for each acre of irrigable land in the district and $1.00 an acre on all non-irrigable land. The assessments so levied on all irrigable lands in the district were at the rate of $3.50 per acre per annum, of which $2.45 was set apart for the payment of all accrued interest and for the retirement of the bonds, and $1.05 for the maintenance and operating expenses of the district; and 7 cents per acre per annum on all non-irrigable land within the district as an incidental benefit thereto, of which amount six cents should be applied to the payment of interest on the bonds and one cent on the principal of the bonds. Assessments made on the land in controversy for the years 1924 to 1928, inclusive, with interest and penalties accruing up to the date of the trial aggregated the sum of $3,682.53.

"According to further allegations in the petition the water improvement district was duly and legally organized; the assessments levied and all statutory requirements necessary to such levy were duly and legally complied with, including service of notice to Mrs. Anchor, who failed to appear and contest the inclusion of her land in the district, or to resist the assessments made, and who thereafter failed to take any steps to have her land withdrawn from the water improvement district, as provided in articles 7646 to 7648, inclusive, Rev. Civ. Statutes of 1925; and by reason of all of which it is now too late for her to challenge the validity of all assessments. According to further allegations the bonds that were issued by the district, in the sum of $1,525,000.00, were duly approved and validated in the District Court of Wichita County and in the Court of Civil Appeals for the Second Supreme Judicial District of Texas, and, after being so approved, were sold.

"The judgment rendered against Mrs. Anchor was for the amount of assessments noted and attorneys' fees, totalling a sum of $4,050.78, with interest thereon from the date of the judgment, towit, October 15, 1930, at the rate of 6% per annum and costs of suit, with foreclosure of the assessment liens on the entire tract to secure the payment of the personal judgment.

"No statement of facts has been brought to this court, but, as shown by bill of exception, after plaintiff had made prima facie proof of all the material allegations in its petition, counsel for Mrs. Anchor offered further proof to show that the assessment made upon certain portions of her land as irrigable land were fraudulently made,...