City of Rising Star v. Dill

• Decision Date: 15 December 1923
• Docket Number: (No. 10877.)
• Citation: 259 S.W. 652
• Parties: CITY OF RISING STAR v. DILL.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

259 S.W. 652

CITY OF RISING STAR v. DILL.^*

(No. 10877.)

Court of Civil Appeals of Texas. Fort Worth.

December 15, 1923.

Rehearing Denied January 26, 1924.

Appeal from District Court, Eastland County; E. A. Hill, Judge.

Action by the City of Rising Star against J. M. Dill. Judgment for defendant, and plaintiff appeals. Reversed and rendered.

M. McCullough, M. J. Smith, and Burkett, Orr & McCarty, all of Eastland, for appellant.

J. L. Alford, of Rising Star, and D. K. Scott, of Cisco, for appellee.

BUCK, J.

This suit was filed in the Eighty-Eighth district court of Eastland county, by the city of Rising Star against J. M. Dill, to collect $130.99, alleged to be due for taxes, penalty, collector's costs, district clerk's costs, advertising fee, city attorney's and sheriff's costs, on two tracts of land located in the city of Rising Star. Plaintiff's petition alleged that defendant was the owner of the two tracts, one being two acres and the other being a city lot, each particularly described, and that the taxes sued for were for the year 1921. Defendant filed a general demurrer and numerous special exceptions, a general denial, and by special answer attacked the petition and plaintiff's right to recover for the following reasons, to wit: That the assessment of the tax was illegal and invalid; that plaintiff's petition failed to allege that a proper 90 days' notice was served on defendant before suit, nor did said petition show that said notice contained a description of the land with the schedule of taxes, as required by law; that the required notice was not served on defendant 90 days before suit; that the taxes attempted to be collected were in excess of the limit allowed by law; that the petition failed to show the separate purposes for which said tax levies were made; that said taxes attempted to be levied and collected were in excess of the amount allowed by law to be assessed and collected by cities and towns of the class of plaintiff; that plaintiff did not have the right to bring suit in the district court, because it had not, by ordinance, adopted title 22, of the Revised Statutes of Texas; that a part of the tax sought to be collected was illegal and void because it was to be applied, when collected, toward payment of warrants wrongfully and illegally issued to the Janes Construction Company in payment of the extension of the sewer system, and that the limit of taxation had already been reached before and without the amount levied for the payment of such warrants; that defendant had tendered the full amount of the city taxes legally due and owing by him. Plaintiff further tendered into court the amount which he alleged he owed.

Plaintiff filed numerous exceptions to defendant's answer, and a general denial to all new matters raised by said answer. It is not shown that the court formally acted upon any of the exceptions raised by either plaintiff or defendant, except as it may have overruled plaintiff's exceptions by virtue of the judgment rendered by the court in favor of the defendant. The cause was tried without a jury, and the court rendered a judgment that plaintiff recover nothing against the defendant, from which judgment plaintiff has appealed.

In the third assignment, appellant urges that since article 7689a as added by Acts 38th Leg., 2d Called Sess. (1923), c. 13, § 6, provides that there shall be no defense to a suit for collection of delinquent taxes, except (1) that the defendant was not the owner of the property at the time the suit was filed, (2) that the taxes sued for have been paid, and (3) that the taxes sued for are in excess of the limit allowed by law, but the last defense shall apply only to such excess, and since the defendant did not establish any of the defenses by proof, and the evidence shows that he did own the land, that the taxes have not been paid, and the taxes sued for were not in excess of the limit allowed by law, that judgment should have been rendered for plaintiff below. This contention is sound if the defendant owner has been brought properly into court by proper service of notice and citation, or if such notice and citation has been waived. Article 7687a, 1918 Supp., Vernon's Ann. Civ. Stats., as amended by Acts of 1919, Thirty-Sixth Legislature (Vernon's Ann. Civ. St. Supp. 1922, art. 7687a) provides:

"During the months of April and May each year, or as soon thereafter as practicable, the collector of taxes in each county of this state shall mail to the address of each record owner of any lands or lots situated in the county a notice showing the amount of taxes delinquent or past due and unpaid against all such lands and lots as shown by the delinquent tax record of the county on file in the office of the tax collector, a duplicate of which shall also have been filed in the office of the comptroller of public accounts of the state of Texas and approved by such officer. Such notice shall also contain a brief description of the lands and lots appearing delinquent and the various sums or amounts due against such lands and lots for each year, they appear to be delinquent according to such records, and it shall also recite that unless the owner or owners of such lots or lands described therein shall pay to the tax collector the amount of taxes, interest, penalties and costs set forth in such notice within 90 days from the date of notice, then, and in that event, the county or district attorney will institute suits for the collection of such moneys and for the foreclosure of the constitutional lien existing against such lands and lots. And it shall also be the duty of the tax collector in every county of this state, as soon after mailing such notice as practicable, to furnish to the county or district attorney duplicates of all such notices mailed to the taxpayers in accordance with the provisions of this act, and also, lists of lands and lots located in the county appearing on the delinquent tax records in the name of `unknown' or `unknown owners' or in the name of persons whose correct address or place of residence in or out of the county said collector is unable, by the use of due diligence, to discover, or ascertain, against which taxes are delinquent, past due, and unpaid, and such lists or statements shall show the amount of state and county taxes delinquent, past due, and unpaid, against each such tract or lot of land for each year they appear to be delinquent according to the delinquent tax records of the county and shall likewise contain a brief description of all such lands and lots. And it shall be the further duty of the tax collector to furnish on demand of any person or persons, firm or corporation like statements with reference to any particular lot or tract of land for whatever purpose desired, which shall be in all instances certified by him with the seal of his office attached. Whenever any person or persons, firm or corporation shall pay to the tax collector all of the taxes, interest, penalties and costs shown by the delinquent tax records of the county to be due and unpaid against any tract, lot, or parcel of land for all the years for which said taxes may be shown to be due and unpaid, prior to the institution of suit for the collection thereof, it shall be the duty of the tax collector to issue to such person or persons, firm or corporation, a receipt covering such payment as is now required by law."

In Hunt v. State, 110 Tex. 204, 217 S. W. 1034, the Supreme Court held that the giving of such 90-day notice, containing a brief description of the lands or lots appearing delinquent to the record owner at the time of the notice, was a prerequisite, which must be complied with before a recovery could be had. The evidence shows and the trial court found that the defendant was not served with such notice 90 days before suit was filed. J. W. Smith, the tax assessor and collector of Rising Star, testified:

"That card that we sent out, if I recall it all, stated that on the 10th day of October the delinquent tax lists would be turned over to the X-Ray Publishing Company for publication, after which suits would be filed in the district court for the taxes due. That was for the year 1921. Well, 1919 to 1921, which included three years — there was space left at the bottom and the year delinquent was marked at the bottom. On this notice to Mr. Dill the year 1921 was put on that notice. The amount of the tax was not put in there. The amount of the taxes was not put in; and no description of the property was in the notice at all. What I have just stated is all that I remember, and is substantially all that was on that card."

No evidence was introduced tending to show that defendant received the legal 90-day notice required by the statute, or that such notice was even mailed to his address. According to the Supreme Court decision in Hunt v. State, supra, the mailing of this notice to the record owner was a necessary prerequisite to plaintiff's right to recover. If appellant's contention that this 90-day notice was waived by appellee, by virtue of his pleading and proof that he tendered to the tax collector of appellant the amount of taxes, and tendered in open court the amount of taxes which he claimed to be due (the controversy arising over the payment of a small proportion of the taxes which the appellee alleged were to be used in the payment of certain warrants illegally issued to the Janes Construction Company for the building of a sewer system), should not be sustained, then the judgment below must be affirmed, for the lack of the 90-day notice. Defendant having pleaded the tender, and having offered proof thereon, no question can arise, we think, as to the effect of such tender as a waiver of the 90-day notice. In 38 Cyc. page 163, it is said:

"A tender is ordinarily an admission of an amount due equal to the sum tendered, even though the tender is insufficient in form, or is made in a case where a valid legal tender cannot be made;...