Baldwin v. Morton

• Decision Date: 21 June 1929
• Docket Number: (No. 584.)
• Parties: BALDWIN v. MORTON et al.
• Court: Texas Court of Appeals

Page 948

19 S.W.2d 948

BALDWIN v. MORTON et al.

(No. 584.)

Court of Civil Appeals of Texas. Eastland.

June 21, 1929.

Rehearing Denied September 13, 1929.

Appeal from District Court, Haskell County; Bruce Bryant, Judge.

Suit by Mrs. Kate F. Morton against J. L. Baldwin, in which administrators of plaintiff's estate were substituted as parties. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Thomas & Shapard, of Anson, and Stinson, Hair, Brooks & Duke, of Abilene, for appellant.

Murchison & Davis, of Haskell, Davidson & Yeager, of Dallas, and F. L. Henderson, of Bryan, for appellees.

FUNDERBURK, J.

Mrs. Kate F. Morton, widow and sole devisee of F. M. Morton, deceased, brought this suit against J. L. Baldwin, seeking to recover judgment upon three certain paving certificates. Subsequent to the filing of the suit, plaintiff died, and under proper orders the administrators of her estate have been substituted as parties. The only defense pleaded in answer to plaintiff's suit was that of payment. The payment was alleged to have been made in March, 1923, by means of a novation of the original obligations, in which transaction the defendant gave two notes, bearing date some time in said month of March, 1923, due January 4, 1924, one for the principal sum due on the paving certificates, with 10 per cent. interest to January 4, 1924, and the other covering past-due interest on the certificates and also interest on other indebtedness; the defendant's contentions with reference to the notes being that they were for about $2,600 and $400, respectively, the exact amount never being definitely fixed. The issue of payment was submitted to the jury, and found in favor of the plaintiff. From the judgment based thereon, the defendant Baldwin has appealed.

The first question presented for our determination is whether or not the recitals in the paving certificates had the legal effect of dispensing with the necessity on the part of plaintiff to make proof of the existence of the necessary ordinances and other proceedings to show the levy of a valid and enforceable assessment and lien, and the provisions of same. Appellant seems to concede that, had the certificates contained proper recitations, the introduction of the certificates alone would be sufficient, under Rev. St. 1925, art. 1090. It is contended, however, that the recitals are deficient. The recitations which the law provides shall be prima facie evidence are: "* * * That the proceedings with reference to making such improvements have been regularly had in compliance with law, and that all prerequisites to the fixing of the assessment lien against the property described in said certificate, and fixing the personal liability of the owner, have been performed." Specifically it is complained that the recitals appearing in these certificates do not denominate the lien as "assessment" lien; that there is no recitation that the assessment lien is "against the property described in said certificate," nor is there mentioned "fixing the personal liability of the owner." We cannot agree that the certificates are subject to the criticism made. They describe the property and name the owner; they recite the making of the assessment in such way that the further recitation as to "the" lien can only mean assessment lien. It is equally clear that the personal liability of the owner is clearly recited.

It is next complained that the court erred in hearing proof as to the reasonable value of attorney's services, in the absence of evidence of an ordinance showing authority for the recovery of reasonable attorney's fees. The law provides that the ordinance making the assessment "shall provide for the collection thereof, with costs and reasonable attorney's fees, if incurred." Rev. St. 1925, art. 1090. This is the ordinance, proof of which may be dispensed with by reason of the presumptions arising from recitals in the certificates, as we have above held, and we think it clear no distinction is to be made between attorney's fees and the assessment proper, except as to the necessity of establishing by other evidence the amount and reasonableness of the attorney's fees. This contention is, therefore, likewise overruled.

All of appellant's other propositions, except the eleventh proposition, which will hereafter be separately discussed, are so presented as to be rather difficult to deal with, without danger of being misunderstood, and by reason of such misunderstanding leading the trial court into possible error in another trial of the case. But for the error of the court discussed under the eleventh proposition, we would regard it our duty to affirm the judgment. This would not mean that no error was disclosed in any of the other proceedings, but simply that the errors, if any, were not so presented, or else were not shown to be harmful in such a way as to call for a reversal.

For instance, by the third proposition complaint is made of the action of the trial court in admitting testimony over the objection of the defendant of a certain ledger claimed to have been kept during the lifetime of Kate F. Morton, as well as by her husband, F. M. Morton. The entries in the ledger complained of appear to have been offered in connection with the testimony of W. H. Murchison, one of the attorneys for appellee. The bill of exception, however, does not show that the ledger or the said entries were introduced in evidence. Nor does the bill show that the objections upon which the proposition is based, were, in fact made. The objections shown by the bill to have been made were that the entries were not made in the presence of Mr. Baldwin, were highly prejudicial, would be hearsay and self-serving, and inadmissible. By ...