City of Abilene v. Fryar, 2044.

• Decision Date: 04 October 1940
• Docket Number: No. 2044.,2044.
• Citation: 143 S.W.2d 654
• Parties: CITY OF ABILENE v. FRYAR, County Clerk.
• Court: Texas Court of Appeals

Page 654

143 S.W.2d 654

CITY OF ABILENE v. FRYAR, County Clerk.

No. 2044.

Court of Civil Appeals of Texas. Eastland.

October 4, 1940.

Appeal from District Court, Forty-Second District, Taylor County; M. S. Long, Judge.

Suit in equity by the City of Abilene against Vivian Fryar, County Clerk of Taylor County, for injunction against cashing city warrants deposited with defendant by plaintiff buying revenue stamps from proceeds, and affixing such stamps to recorded trust deeds securing city bonds. From a judgment decreeing that plaintiff take nothing by its suit and that cause be dismissed, plaintiff appeals.

Affirmed.

Kirby, King & Overshiner, of Abilene, for appellant.

Gerald C. Mann, Atty. Gen., and Glenn R. Lewis, Pat M. Neff, Jr., Ocie Speer, and Geo. W. Barcus, Asst. Attys. Gen., for appellee.

FUNDERBURK, Justice.

The City of Abilene (hereinafter referred to as the City) having determined to issue bonds and to secure same in part by instruments to serve both as chattel mortgages and deeds of trust, and having agreed to sell part of the bonds to the Mercantile National Bank of Dallas, as trustee, and another part to the Citizens National Bank in Abilene, and still another part to Farmers & Merchants National Bank of Abilene, purportedly obligated itself by ordinance to have said liens filed and recorded in the office of the County Clerk. In pursuance of said undertaking said City, prior to completed sale and delivery of the bonds, presented to Miss Vivian Fryar, County Clerk of Taylor County (hereinafter referred to as the Clerk), said instruments with the request that each be filed as a chattel mortgage and recorded as a deed of trust. Said instruments not being stamped as provided by Vernon's Ann.Civil Statutes, Art. 7047e, the Clerk refused to file them, unless they were so stamped. The City, although protesting that no stamps were required, in order to procure the requested filing and record of said instruments immediately, issued and delivered to the Clerk city warrants covering the amount of stamps claimed to be necessary; whereupon the Clerk filed and recorded said instruments. Thereafterwards the bonds were sold.

The City brought this suit against the Clerk as sole defendant, alleging in detail and with amplification the foregoing facts; and particularly that "in order to secure the prompt registration of said instrument [there was similar allegation with reference to another instrument] the said City deposited with said Clerk its warrant or check for the sum of $300 [the other being for $299.80] being the amount necessary to buy the stamps to be affixed to said deed of trust in case it was finally determined by proper authority the same were taxable under the provisions of said Art. 7047e and not exempt from taxation as was contended by said City at the time it presented said deed of trust to said clerk as aforesaid; and the said Clerk agreed to hold said warrant pending the final determination of the question by proper authority as to whether or not said deed of trust was exempt from said stamp tax and said warrant is now being held by said Clerk for the purpose aforesaid."

The suit, as its nature appears from the prayer of plaintiff's petition, was one for temporary and permanent injunction "enjoining and restraining the said defendant Vivian Fryar, County Clerk, from cashing said warrants and from buying said revenue stamps from the proceeds thereof; from affixing said stamps to said deeds of trust; that said bonds and deeds of trust be adjudged not subject to said stamp tax and that said defendant be ordered to return said warrants to said city." This was supplemented by the usual prayer for general and special relief.

The only alleged wrong (not righted by the deposit of the warrants) charged to the Clerk was "that the defendant is threatening to cash said warrants which were made payable to her order and to buy stamps with the funds received therefor for the purpose of affixing same to said deeds of trust as a tax on said bonds and will do so unless restrained by your honor's most gracious writ of injunction." It was further alleged that "plaintiff will suffer irreparable injury for which it has no adequate remedy at law, unless the defendant is restrained from collecting the said tax."

The defendant answered by the Attorney General of Texas and certain of his assistants as her attorneys. The defenses urged were: (1) A plea to the jurisdiction on the ground that exclusive jurisdiction was in a "court of competent jurisdiction in Travis County, Texas, under the terms and provisions of Senate Bill No. 247, Acts Regular Session, 45th Legislature, being Art. 7047j, Vernon's Ann.Civil Statutes." (2) That plaintiff had an adequate remedy at law in the provisions of "the Protest Statute". Vernon's Ann. Civil Statutes, Art. 7057b. (3) The non joinder of the State Treasurer (Charlie Lockhart) as a necessary party. (4) That the right of action attempted to be asserted had been superseded by statutory procedure in the provisions of Vernon's Ann.Civil Statutes, Art. 7047j. These pleas were followed by general and special demurrers and general denial.

In a non jury trial the court in its judgment recited "that the law and facts are with the defendant and that plaintiff is not entitled to the relief sought but this cause should be in all things dismissed at the cost of plaintiff." It was accordingly "ordered, adjudged and decreed that plaintiff take nothing by its suit and that this cause be and the same is in all things dismissed from the docket of this court", etc. The plaintiff has appealed.

The judgment imports a contradiction. It purports to determine the merits of the case by decreeing "that plaintiff take nothing by its suit." It also decreed "that this cause be and the same is in all things dismissed from the docket of this court." An action cannot be dismissed and yet leave in effect a judgment determining the issues in the case on their merits. The City construes the judgment as determining the merits, as shown by its insistence that the Clerk's pleas to the jurisdiction, demurrers, etc., were waived by the failure to have the court act upon them. The Clerk construes the judgment as one of dismissal, as shown by the contention that such a judgment was the only proper one under said pleas.

Under our conclusions reached in this case it is of little practical importance whether the case was dismissed or determined against the plaintiff upon its merits. Under these circumstances we feel justified in assuming that such pleas and demurrers were impliedly overruled and judgment rendered upon the merits, which is to say the judgment determined that the deeds of trust were under the law required to be stamped before they were properly to be filed and recorded. This was clearly the legal question which the City by its suit sought to litigate.

We are of the opinion that the City had no right to litigate the question of its liability to pay the tax imposed by the provisions of Vernon's Ann.Civil Statutes, Art. 7047e, under the allegations of its pleadings, especially with the Clerk as sole defendant.

In the first place, if the law imposed the tax in question it vested no authority in the Clerk to file or record the deeds of trust without being stamped; but to the contrary, expressly prohibited the Clerk from doing so. If the law did not impose said tax, under the circumstances, it was the ministerial duty of the Clerk to file and record the instruments without being stamped. The Clerk's duty was not affected by any mistaken understanding or construction of the law. The Clerk charged with a ministerial duty is presumed to know the law, and if she makes a mistake as to such question there is a plain and adequate legal remedy for requiring performance of the duty. Matlock v. Smith, 96 Tex. 211, 71 S.W. 956. Such remedy is an action of mandamus. We think the facts alleged in the City's petition show that only questions of law were involved, or sought to be litigated. There was no claim that any facts apart from questions of law were not known to the Clerk. Under these circumstances we think that as a matter of law the...