Crocker v. Santo Consol. Independent School Dist., 1774.

• Decision Date: 15 April 1938
• Docket Number: No. 1774.,1774.
• Citation: 116 S.W.2d 750
• Parties: CROCKER v. SANTO CONSOL. INDEPENDENT SCHOOL DIST. et al.
• Court: Texas Court of Appeals

Page 750

116 S.W.2d 750

CROCKER v. SANTO CONSOL. INDEPENDENT SCHOOL DIST. et al.

No. 1774.

Court of Civil Appeals of Texas. Eastland.

April 15, 1938.

Rehearing Denied May 13, 1938.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Palo Pinto County; Sam M. Russell, Judge.

Suit by the Santo Consolidated Independent School District against Cornelia B. Crocker and another to recover taxes due and to foreclose tax lien. From a judgment for plaintiff, the named defendant appeals.

Reversed and remanded.

Ritchie & Ritchie, of Mineral Wells, for appellant.

McCall & McCall, of Weatherford, for appellees.

FUNDERBURK, Justice.

Santo Consolidated Independent School District, interchangeably also denominated Santo Consolidated Independent County Line School District, sued Miss Cornelia B. Crocker for taxes in the principal sum of $481.09, with interest, penalties, and costs, claimed for the year 1931 to 1935, inclusive; due upon land situated in said district; and to foreclose the tax lien. The Federal Land Bank of Houston was joined as a defendant upon the ground that it was claiming some interest in the land and in order to make the foreclosure effective as to it.

Miss Crocker answered by general demurrer, special exceptions, general and special denials, and other pleas. The Federal Land Bank answered only by a claim over against its codefendant for judgment for any amount it should pay upon the judgment against its codefendant. In a nonjury trial judgment was given for plaintiff against the defendant Crocker as prayed, except taxes, etc., for the year 1931. Judgment was also awarded said land bank against Miss Crocker as prayed. The latter has appealed.

Appellant specially denied under oath the valid corporate existence of appellee school district, and particularly that it included within its purported boundaries the lands of appellant upon which the taxes were claimed to be due and delinquent. To this part of the answer the court sustained exceptions and struck it out. If there was any error in such action, as contended under appellant's first proposition, we think it was affirmatively shown to be harmless. It is true that by provision of R.S.1925, art. 2010, in order to join issue upon the allegations of plaintiff's petition whereby it was averred that said school district was duly incorporated, it was necessary for the defendant to verify her denial of such allegation. But we know, as a matter of law, that in this state all school districts are corporations. 37 Tex.Jur. p. 864, § 16. Appellee district, in our opinion, made sufficient prima facie proof that it was duly incorporated by introducing in evidence the order of the commissioners' court of Palo Pinto county, made August 10, 1931, declaring the result of consolidation elections in Santo Independent School District and Pickens Common School District No. 40. This much it was perhaps required to do, regardless of the stricken pleadings. But whether so or not, the stricken part of the answer could have served no other purpose than to require the production of such proof as was made by introducing said order. Whether necessary or not it was indisputably shown that the purported consolidated district had functioned as such during all the time in which the property had been assessed for the taxes claimed. Unless the order on its face shows that the attempted consolidation was void, which we think it does not, it was admissible in evidence. There was, it appears, no burden resting upon appellee to prove the validity of the several preceding steps which finally culminated in the declaration of the result of such elections. If it should be conceded that appellant would have the right to show that the consolidation of the two districts was void because of some act or omission involving a precedent jurisdictional requisite —a question we find it unnecessary to determine —such issue would not be presented by a mere special denial whether verified or not; but it would be necessary for the defendant to present it by an affirmative defensive plea and to assume the burden of establishing it by proof. If, as we think, appellee was under no necessity of introducing the petitions for the elections, the orders calling the elections, or the notices or returns of the elections, then no question of the validity of any such proceedings could be raised by mere objection to the admissibility of the evidence. Such evidence would be without the scope of the issues joined by the pleadings and inadmissible for that reason, but not involving any such question as the right or capacity of appellant to make a collateral attack upon the validity of the appellee district.

It is next contended that it was affirmatively shown regarding the two elections held in August, 1931, by which Santo Independent School District and Pickens Common School District No. 40 were purported to be consolidated, that the notices of election in each district were posted in the other district with the result that no notices were posted in either district applicable to the election therein held; hence, there was no authorized consolidation of the districts and consequently no authority to tax the lands of appellant situated in the former Pickens Common School District. Conceding that the evidence did establish such fact, it is pertinent to inquire, we think, to what issue made by the pleadings was such evidence applicable? Our conclusion is that there was none. Had appellant alleged as a special defense that the purported consolidation was void because no notices of election were posted, then the question would arise whether appellant could make such collateral attack, as manifestly it would be, upon the consolidation proceedings; and further, if so, whether the affidavits to the notices conclusively established the invalidity of the elections and consequent invalidity of the purported consolidated district. Parenthetically it may be stated that we know of no law requiring the county judge to make affidavit to the posting of notices in consolidation elections, and it may be questionable if such affidavits were competent as evidence. As said before, these questions in our opinion are not material because no issue regarding same was joined by the pleadings. It seems to be appellant's view that the burden was upon appellee to prove that valid notices of election were posted and that the proffered evidence was not admissible to establish such fact; but since it is our view, already expressed, that the introduction of the order declaring the result of the consolidation elections was sufficient prima facie to discharge the burden resting upon appellee, and appellant having tendered no defensive plea asserting the invalidity of the consolidation because of the lack of election notices posted in the districts, or other reason, no such issues were in the case. If by reason of noncompliance with one or more requirements, other than the tax elections hereinafter discussed, essential to confer upon Santo Consolidated Independent School District, the power to provide for the levy, assessment, and collection of taxes claimed, or, in other words, if the attempted formation of the consolidated school district was void appellant, if she had the legal capacity to do so, had the burden of alleging and proving the facts of such invalidity as a matter of defense. No defensive plea tendered the issue which it is contended was established as above stated. Hence, there is no occasion to consider whether if such plea had been made the law would permit the collateral attack under the existing circumstances.

It was necessary in order to authorize a judgment in its favor for appellee to prove that it was a school district which had been formed by the consolidation of the former Santo Independent School District with the Pickens Common School District; that taxes for the purposes and in the amounts claimed had been authorized by one or more elections as the condition upon which such taxing power is delegated by the Legislature to the school district and that the taxes claimed had been duly levied, assessed, and were due and unpaid. As said before, it discharged this burden prima facie as to its capacity by introducing the order declaring the result of the consolidation elections and defining the limits and bounds of said district. Appellee formally admitted that the taxes, if any due, were unpaid.

The order declaring the result of the consolidation elections and describing the boundaries of the district sufficiently evidenced the fact, we think, that a part of the John Bird Survey No. 27, upon which appellant's land was located, was located in the district. A call from the N E corner of T. P. R. R. Co. Survey 33 on the Brazos River, "Thence W to S W cor of Survey 42," was evidently erroneous. Either the direction or the corner called for was wrong. Assuming that the error was in the direction and the corner was correct, the next call could not be applied; but assuming that the direction was correct and the call for the corner error, then the next call can be given effect provided it be assumed that the corner intended was the N W cor of 32. Reversing the calls, the N W cor of 32 will be reached. We, therefore, conclude that it is thereby shown that the call was intended to be "Thence W to the N W cor of 32" and is sufficient.

Due levy and assessment of the taxes for the years 1931 to 1934, inclusive, were attempted to be proved by the introduction in evidence of: (1) A delinquent tax record covering the years 1928 to 1934, inclusive; (2) the annual tax rolls for each of the years 1931 to 1934, inclusive; and (3) the assessment lists for each of said years. The levy and assessment of the taxes claimed for the year 1935 were sought to be proved by introduction in evidence of the annual tax roll, (?) the delinquent tax list, and the assessment list for said year. Objection to the admission of said annual tax rolls was made on...