Cranfill Bros. Oil Co. v. State
| Decision Date | 10 November 1932 |
| Docket Number | No. 2742.,2742. |
| Citation | 54 S.W.2d 813 |
| Parties | CRANFILL BROS. OIL CO. et al. v. STATE. |
| Court | Texas Court of Appeals |
Appeal from District Court, Winkler County; Chas. L. Klapproth, Judge.
Suit by the State against the Cranfill Bros. Oil Company and others. Judgment for plaintiff, and defendants appeal.
Reformed and affirmed.
Rutledge Isaacks and L. A. Dale, both of Pecos, for appellants.
H. E. Wassell, Co. Atty., of Wink, for the State.
This is a suit by appellee to recover state and county taxes for the year 1929, brought against Cranfill Bros. Oil Company, alleged to be a copartnership composed of T. B. Cranfill and B. E. Cranfill, Murko Oil & Royalty Company, a corporation, and others not necessary to mention.
It was alleged the taxes were assessed and levied against the mineral interest in four tracts of land in Winkler county, which tracts for the purpose of this opinion may be designated as tracts Nos. 1, 2, 3, and 4.
It was alleged the amount of delinquent state and county taxes against said mineral interests are as follows: Against tract No. 1, $1,115.71; against tract No. 2, $1.25; against tract No. 3, $65.52; against tract No. 4, $808.08. Then follows this tabulated statement:
State ad valorem....................... $ 650.76
County ad valorem...................... 765.60
County road special.................... 574.20
Penalty ............................... 199.06
Interest .............................. 253.86
Fees and costs......................... 16.00
_________
Total ............................... $2,459.48
It was further alleged the Murko Oil & Royalty Company is now the record owner of the property and the other defendants claim some interest therein.
Judgment was rendered against Cranfill Bros. Oil Company, T. B. Cranfill, and B. E. Cranfill for the sum of $1,375.02, as taxes, interest, and penalties due upon tracts 1 and 2, and against T. B. Cranfill for $1,075.40 as the taxes, interest, and penalty due upon tracts 3 and 4.
The judgment forecloses the tax lien against the Murko Oil & Royalty Company and the other defendants.
The foreclosure portion of the decree segregates the amounts against the different tracts as follows: Against tract No. 1, $1,373.44; against tract No. 2, $1.58; against tract No. 3, $80.66; against tract No. 4, $994.74.
The tracts were ordered sold separately for the amounts due against them. From the judgment rendered, all defendants appeal.
The court did not err in overruling the motion to quash the citation. The citation commanded the officer to summons the defendants, etc., "to answer plaintiff's first Amended Petition filed in said court on the 9th day of March A. D. 1932, in a certain suit No. 757, in which said suit," etc. "And you are further commanded to deliver to each of the above named defendants, in person, a true copy of this citation, together with a certified copy of plaintiff's said original petition."
Accompanying the citation was a copy of the first amended petition certified to be "a full, true and correct copy of Plaintiff's First Amended Original Petition in Cause No. 757, styled State of Texas v. Cranfill Bros. Oil Co. et al, filed in said court the 9th day of March, 1932."
In support of the motion to quash, it is urged that "the citation having directed and commanded the sheriff to serve each of the defendants with a certified copy of plaintiff's original petition, the sheriff was not authorized to serve the defendants with a certified copy of plaintiff's first amended original petition, and such service being without warrant of law was ineffective to require the defendants to answer."
The citation directed the defendants to answer the first amended petition filed March 9, 1932. The certified copy accompanying the petition and served upon the defendants was the first amended original petition. The defendants could not possibly have been misled as to which petition they were called upon to answer. The variance indicated by appellant's proposition is unimportant. The motion to quash was properly overruled. Pipkin v. Kaufman & Runge, 62 Tex. 545; W. U. Tel. Co. v. Johnson, 16 Tex. Civ. App. 546, 41 S. W. 367; Pruitt v. State (Tex. Civ. App.) 47 S. W. 553.
Furthermore, the record discloses defendants answered and announced ready for trial. No motion for continuance was made. It is not contended the ruling upon the motion to quash in any wise contributed to the rendition of an improper judgment upon the merits, nor is there anything in the record to so indicate. Under such circumstances the error, if any, in overruling the motion, should be regarded as harmless. Boles v. Adams (Tex. Civ. App.) 173 S. W. 561.
Appellant excepted to the petition upon the ground of misjoinder, in that two of the properties described in the petition and upon which foreclosure is sought belonged to Cranfill Bros. Oil Company on January 1, 1929, and the other two properties belonged to T. B. Cranfill on said date and there is no showing that T. B. Cranfill is liable as to the first two properties and no showing that the company is liable as to the last two properties. The exception does not truly reflect the allegations as to tracts 3 and 4. The allegation was that T. B. Cranfill was "the record owner" thereof on January 1, 1929. It is immaterial who the record owner was on that date. The allegation was unnecessary and surplusage. An allegation later quoted shows that "Cranfill Brothers Oil Company, T. B. Cranfill and B. E. Cranfill" were the owners in fact on the date mentioned and personally liable.
Special exceptions 5, 6, and 7 were well taken, but the error in overruling same is harmless. Golden v. Odiorne, 112 Tex. 544, 249 S. W. 822.
The Murko Oil & Royalty Company is sued as "a corporation," but it was not alleged to be duly incorporated. Exception was taken to the petition because of the failure to so allege. The overruling of this exception presents no error. Houston Water-Works v. Kennedy, 70 Tex. 233, 8 S. W. 36; Texas & Pacific Ry. Co. v. Bufkin (Tex. Civ. App.) 46 S.W.(2d) 712. The ruling upon evidence complained of in the seventh proposition presents no error.
The order of the commissioner's court of Winkler county levying the county taxes sued for reads:
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