City of San Antonio v. Earnest, 11489.

• Decision Date: 07 March 1945
• Docket Number: No. 11489.,11489.
• Parties: CITY OF SAN ANTONIO v. EARNEST.
• Court: Texas Court of Appeals

186 S.W.2d 740

CITY OF SAN ANTONIO v. EARNEST.

No. 11489.

Court of Civil Appeals of Texas. San Antonio.

March 7, 1945.

Rehearing Denied April 4, 1945.

Appeal from District Court, Thirty-Seventh District, Bexar County; Robt. W. B. Terrell, Judge.

Suit by the City of San Antonio against Betty M. Earnest to set aside a tax judgment. Betty M. Earnest died leaving her property to Betty Ridgeway who was substituted as a defendant with her father T. H. Ridgeway as next friend. From a judgment of dismissal, the plaintiff appeals.

Judgment affirmed.

T. D. Cobbs, Jr., and Hugh R. Robertson, both of San Antonio, for appellant.

T. H. Ridgeway and S. D. Hopkins, both of San Antonio, for appellee.

MURRAY, Justice.

This suit is one between the City of San Antonio and Betty Ridgeway, being sued herein through her next friend and father, T. H. Ridgeway, wherein the City is seeking to set aside a certain tax judgment rendered in the 37th District Court in 1913, being cause No. B-5492. The suit was originally filed November 12, 1932.

The court sustained a plea in abatement and dismissed the cause. The City of San Antonio has prosecuted this appeal.

Appellant's first point is as follows:

"The trial court erred in sustaining the exceptions to appellant's second amended original petition, because said petition sets up a cause of action to which the four year statute of limitation is not applicable. The suit is in substance and effect one to quiet title and to remove cloud therefrom, and there being no adverse possession by appellee, the cause of action is a continuing one and limitation cannot be invoked as a defense."

We cannot agree with this contention. The nature of appellant's suit is fully disclosed by the prayer contained in its petition reading as follows:

"Wherefore, defendant having entered her appearance herein, plaintiff prays that on a trial hereof this plaintiff recover judgment against said defendant and that this Court enter its order setting aside every step in said tax suit in Cause No. B-5492 and hold the same null and void and of no force and effect, and for such other and further relief in law or in equity to which it may be justly entitled, and for all costs of court in this behalf expended."

Furthermore, it is clear from a reading of appellant's entire petition that it is seeking to set aside this judgment on the ground that a fraud was perpetrated upon the City when its officers were induced to accept a rendition of the lot here...