Dickson v. Navarro County Levee Imp. Dist. No. 3

• Citation: 139 S.W.2d 257
• Decision Date: 24 April 1940
• Docket Number: No. 7614.,7614.
• Parties: DICKSON et al. v. NAVARRO COUNTY LEVEE IMP. DIST. NO. 3 et al.
• Court: Supreme Court of Texas

Page 257

139 S.W.2d 257

DICKSON et al. v. NAVARRO COUNTY LEVEE IMP. DIST. NO. 3 et al.

No. 7614.

Supreme Court of Texas.

April 24, 1940.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Suit by Navarro County Levee Improvement District No. 3, on the relation of E. K. Atwood, against J. M. Dickson and others to recover delinquent district taxes and foreclose tax liens on defendants' lands, in which Whit Eaton and others, as supervisors of plaintiff district, intervened. A judgment for the district was affirmed by the Court of Civil Appeals, 124 S.W.2d 943, and defendants bring error.

Judgments set aside, and cause dismissed.

J. L. Gammon, A. R. Stout, and G. Goodwin Sweatt, all of Waxahachie, for plaintiffs in error.

J. P. Moseley, of Ennis, for defendants in error.

GERMAN, Commissioner.

In September, 1918, Navarro County Levee Improvement District No. 3, including certain territory situated in Navarro County, was created under the provisions of Chapters 25 and 44 of the Fourth Called Session of the 35th Legislature. About the same time, Ellis County Levee Improvement District No. 10, including certain territory in Ellis County, was created under the same authority. As we understand, these two districts adjoin and in reality constitute but one district.

In January, 1919, in pursuance of the provisions of the laws above mentioned, the district caused to be issued certain bonds aggregating $21,000. For the purpose of this decision, it is assumed that everything in connection with the creation of the district, the issuance of the bonds, and the assessment and levy of taxes upon lands of the defendants hereinafter mentioned to pay interest upon the bonds and create a sinking fund, was regularly and properly done.

The law under which said bonds were issued provided as follows with reference to the collection of delinquent taxes: "Tax collectors of levee improvement districts shall perform all duties and exercise all powers in respect to delinquent taxes due levee improvement districts as may be provided by law for the collection of delinquent State and county taxes, and the collection of such delinquent levee improvement district taxes and sales of property therefor shall be governed by the laws applying to the collection of delinquent State and county taxes. Taxes levied under this Act shall be a lien upon the property against which they are assessed, and shall be payable and shall mature and become delinquent as may be provided by law for State and county taxes, and upon failure to pay such taxes when due the same penalty shall accrue and be collected as may be provided by law in case of nonpayment of State and county taxes." Acts 35th Leg., 4th Called Sess., c. 44, § 42.

In 1925, the legislature passed an elaborate Act concerning levee improvement districts, being Chapter 21, General Laws 39th Legislature, which apparently superseded all other laws upon the subject. This Act, with perhaps some additions, appears as Chapter Six of Title 128 of the Revised Statutes of 1925, and includes Articles 7972 to 8017, inclusive, as well as numerous other articles. Ample provision is made in Article 8016 for collection of delinquent taxes. However, Article 8017 set up a supplemental and detailed method of collecting taxes, and subdivision (i) of said article was as follows: "Whenever the board of supervisors of any levee improvement district shall fail to commence suits within sixty days after taxes have become delinquent, the holder or holders of any bonds issued by such levee improvement district shall have the right to employ counsel to bring such suit in the name of the levee improvement district upon the relation of such holder or bond holders; and such suits may be proceeded with in the same manner as hereinabove prescribed, and shall in all respects be governed by the provisions of this section."

Taxes for the years 1933 and 1934 upon lands of J. M. Dickson, W. D. Dickson and Porter Horton became delinquent. E. K. Atwood became holder of some of the bonds issued in 1919. On March 16, 1937, under and by virtue of subdivision (i) of Article 8017, set out above, Atwood, by his attorney, instituted suit in the District Court of Navarro County against J. M. Dickson, W. D. Dickson and Porter Horton as defendants. The formal part of the petition is as follows: "Now comes your petitioner, Navarro County Levee Improvement District No. 3, hereinafter called `Plaintiff District', upon the relation of E. K. Atwood, acting herein as hereinafter will more fully appear."

Briefly stated, the purpose of the suit was to recover taxes assessed against lands of defendants within said levee district for the years 1933 and 1934, and for foreclosure of lien upon said lands.

On April 5, 1927, defendants in said cause filed what they designated an answer and plea in abatement. The plea in abatement was to the effect that the suit was brought upon the relation of E. K. Atwood, which was contrary to law, in that the supervisors of said district were the proper parties to bring such a suit. It was alleged that Whit Eaton, George Norris, and J. T. Beall had been duly appointed supervisors, and had qualified as such. By way of answer they plead that the taxes for the years 1933 and 1934 were barred by limitation. On the same day Whit Eaton, George Norris and J. T. Beall, alleging themselves to be the duly appointed and qualified supervisors for said levee district, filed in said cause a petition of intervention. In said petition they prayed that E. K. Atwood be "dismissed as bringing this suit in behalf of said Navarro County Levee Improvement District No. 3," and that the attorney for said E. K. Atwood be dismissed as attorney for plaintiff, and that interveners' attorney be substituted therein.

On June 25, 1937, judgment by default was pronounced in the case, it being recited in the judgment that "Navarro County Levee Improvement District No. 3 of Navarro County, Texas, on the relation of E. K. Atwood" was plaintiff. After reciting that the pleas in abatement by defendants and interveners were overruled, judgment was awarded in favor of the district against defendants J. M. Dickson, W. D. Dickson and Porter Horton for the taxes for the years 1933 and 1934, with foreclosure of liens upon the lands of defendants.

On the next day, June 26, 1937, the defendants, as well as the supervisors of the district as interveners, filed motions for new trial. These motions were afterwards amended. Among the grounds set up for vacating the judgment, was one questioning the right of E. K. Atwood as relator to maintain the suit. On July 5, 1937, these motions were overruled, and at that time the judge of the...