City of Robstown v. Thompson, 9900.

• Decision Date: 23 December 1936
• Docket Number: No. 9900.,9900.
• Parties: CITY OF ROBSTOWN v. THOMPSON.
• Court: Texas Court of Appeals

100 S.W.2d 1059

CITY OF ROBSTOWN v. THOMPSON.

No. 9900.

Court of Civil Appeals of Texas. San Antonio.

December 23, 1936.

Rehearing Denied January 27, 1937.

Error from District Court, Nueces County; Birge Holt, Judge.

Action by City of Robstown against Mrs. W. T. Thompson on a paving assessment. To review a judgment in favor of defendant, plaintiff brings error.

Affirmed.

B. H. Kirk, of Robstown, for plaintiff in error.

Ward & Brown, of Corpus Christi, for defendant in error.

BOBBITT, Justice.

This suit was instituted by the plaintiff in error, City of Robstown, Tex., against defendant in error, Mrs. W. T. Thompson, a feme sole, as a property owner in said city, on a paving assessment made by the city for paving a street upon which the property of defendant in error abuts.

The assessment was made on May 7, 1929, in the sum of $185.77, together with interest at the rate of 6 per cent. from date and attorney's fees in the event of legal proceedings to collect the same.

There is no question here raised concerning the validity of such assessment. That matter was determined in a suit heretofore filed and finally disposed of as shown by the judgment of this court in the case of Clark et al. v. W. L. Pearson & Co. et al., and reported in 26 S.W.(2d) 382.

Furthermore, it is not disputed that the property against which the assessment was made and here involved was, and is, the homestead of defendant in error; and such property, therefore, is not subject to a lien to secure payment of the assessment.

It is shown by the record, and agreed by the parties, that the only purpose of this suit as instituted by plaintiff in error is to secure a personal judgment against defendant in error on the debt or claim due under the provisions of the assessment.

Notwithstanding the fact that the property is not subject to a lien by virtue of the fact that it was and is the homestead of defendant in error, if the assessment as made was a valid claim when made against the defendant in error, she is liable therefor, unless the debt and claim is barred by the statutes of limitation. Article 1091, R. S.1925.

The record shows that the assessment was duly made, and as above pointed out, on the 7th day of May, 1929; and the ordinance of the city under which said assessment was made, provides the assessments shall be payable "either all in cash, or one-seventh on or before November 1, 1929," and one-seventh on each November 1 thereafter until paid; and that "in case any installment thereof, either principal or interest, is not paid within ten days after same becomes due, the whole amount of said assessment remaining unpaid shall at once become due and payable, and the said lien subject of foreclosure and said personal claim become mature."

The first installment was therefore due and payable on November 1, 1929, and if it were not paid within ten days thereafter then, under the terms of the ordinance, the entire assessment was due and payable and the lien (except as against homesteads) was subject to foreclosure, and the "personal claim" became matured.

It is undisputed that plaintiff in error did not file this suit to collect the first installment, or any installment...