Cook v. City of Booker
| Decision Date | 16 November 1942 |
| Docket Number | No. 5488.,5488. |
| Citation | 167 S.W.2d 232 |
| Parties | COOK v. CITY OF BOOKER et al. |
| Court | Texas Court of Appeals |
Appeal from Lipscomb Court, District County; W. R. Ewing, Judge.
Action by the City of Booker, Texas, against Bony Cook, to recover delinquent taxes, interest, penalty and costs, wherein plaintiff impleaded the State of Texas and others. From an adverse judgment, defendant appeals.
Affirmed in part, reversed and remanded in part.
Roy Sansing, of Higgins, and W. H. Sewell, of Follett, for appellant.
Max Boyer and Dan E. Archer, both of Perryton, for appellees.
This suit was instituted in the District Court of Lipscomb County, Texas on August 25, 1941, by the plaintiff, the City of Booker, a municipal corporation, against Bony Cook, defendant, to recover the sum of $1,135.51 delinquent taxes, interest, penalty and costs alleged to have accrued to plaintiff because of the nonpayment of taxes in certain years on certain property owned by the defendant. The taxes due, the property covered and the years on which the taxes are delinquent are itemized in a schedule attached to and made a part of plaintiff's petition.
The plaintiff impleaded the State of Texas, the County of Lipscomb and the Booker Independent School District of Lipscomb County, alleging that each of the impleaded defendants claimed some lien or interest against the land involved in the suit.
The Booker Independent School District answered and alleged that the defendant, Bony Cook, was indebted to it in the sum of $757.33 for delinquent taxes, interest, penalty and costs on certain described property, real and personal. The amount of the taxes, the property covered and the years delinquent are set out on a schedule attached to and made a part of the pleading of the Booker Independent School District.
The State of Texas and the County of Lipscomb, by proper pleadings, appeared in court and alleged the respective amounts of taxes due each and the property against which the taxes were delinquent.
The state, the county, the city and the school district each pleaded its tax lien against the respective property upon which it asserted a lien, asked for a judgment against the defendant and a foreclosure of its tax lien against such property.
No complaint is made as to the sufficiency of the pleading of the plaintiff or any of the impleaded defendants and no further statement is deemed necessary.
The defendant, Bony Cook, filed pleas in abatement urging that the suit involves the collection of taxes due the City of Booker and the Booker Independent School District, both of which are in Lipscomb County, and that the city and school are each maintaining its suit by and through an attorney who is a nonresident of Lipscomb County, notwithstanding the law requires that the city and school district be represented in the litigation by an attorney or attorneys who reside in Lipscomb County, Texas, wherefore this suit should be abated.
The defendant Cook also pleaded, subject to his pleas in abatement, a general denial and that the proceedings of the plaintiff city and the school district relating to levying and assessing taxes had for many years been extremely irregular and the defendant specially denied that any of the taxes sued for were properly levied and that no effectual levy of taxes upon the property was at any time made from the year 1930 to the present time and that, accordingly, the taxes sought to be collected had not been validly levied and also that the taxes of the city were not levied by two-thirds of the elected aldermen thereof; that at no time had the tax collector called upon him for his taxes; that no notice was served upon him prior to the institution of the suit; that for several years the same party had been acting as tax assessor and collector for the city and for the school district and the assessment of the taxes was void for the reason that the assessor and collector could not lawfully hold two offices of emolument at the same time; that the authorities have for the last several years charged a fictitious and exorbitant valuation and placed the value of his property in excess of the actual value thereof; that his homestead property, to-wit: Out-Lots 5, 12 and 30, are acreage tracts and that, in any event, such homestead property is not liable for any taxes except such as are legally assessed against such homestead.
The defendant Cook, as a defense to the collection of the delinquent taxes claimed by the school district, pleaded that such taxes were delinquent more than ten years before the suit therefor was instituted and the collection thereof was barred by the statute of ten years' limitation.
The plaintiff and the impleaded defendants levelled special exceptions to Cook's pleas in abatement, also to his allegations of defective levy, the failure of the equalization board to comply with the law, the tax collector's neglect to call upon him for payment and to give him notice thereof prior to the institution of the suit; that the taxes of the city and school were collected by the same officer, which was unlawful. The court sustained such exceptions to the pleas in abatement and to such alleged defenses and they were stricken from the answer of Cook, who was not allowed to offer any testimony thereon.
On April 9, 1942, the case was called for trial, all parties appeared and announced ready, all matters of law as well as of fact were submitted to the court and after hearing the evidence and the argument of counsel the court found the taxes were levied and assessed at the reasonable market value of the property, both real and personal, gave the location and description of the homestead, exempted it from the taxes for all other property; that the defendant Cook was duly and legally indebted to the State of Texas in the sum of $26.62 for delinquent taxes, to the County of Lipscomb in the sum of $21.04, to the Booker Independent School District in the sum of $757.33, and to the City of Booker in the sum of $1,135.51; that these taxes were secured by valid tax liens on all or part of the property, and adjudged that the plaintiff and each of the impleaded defendants recover the, respective amount decreed to it with a foreclosure of the respective liens held...
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