First Baptist Church v. City of Fort Worth

• Decision Date: 10 April 1929
• Docket Number: (No. 3188.)
• Citation: 17 S.W.2d 130
• Parties: FIRST BAPTIST CHURCH v. CITY OF FORT WORTH.
• Court: Texas Court of Appeals

17 S.W.2d 130

FIRST BAPTIST CHURCH v. CITY OF FORT WORTH.

(No. 3188.)

Court of Civil Appeals of Texas. Amarillo.

April 10, 1929.

Rehearing Denied May 8, 1929.

Appeal from District Court, Tarrant County; James E. Mercer, Judge.

Action by the City of Fort Worth and the Fort Worth Independent School District against the First Baptist Church. Judgment for plaintiffs, and defendant appeals. Reversed and remanded, with instructions as to the School District, and affirmed as to the City.

S. C. Padelford and B. F. Bouldin, both of Fort Worth, and Trulove & Frazee, of Amarillo, for appellant.

R. E. Rouer, R. M. Rowland, Frank Coates, Robert B. Young, Jr., and J. M. Floyd, all of Fort Worth, for appellee.

RANDOLPH, J.

The appellee in this cause has filed in this court a motion to correct the statement of facts filed in this cause, in order that the court may have before it the correct data and information concerning the certified copies of the delinquent tax rolls of the city of Fort Worth, which were introduced in the trial of said cause by the city of Fort Worth and the Fort Worth independent school district.

A statement of facts filed in this court in time cannot be amended by agreement of counsel or even by a supplemental statement, though authenticated by the court, if filed after the time for filing the original statement. Atascosa County v. Alderman (Tex. Civ. App.) 91 S. W. 846; Rodriguez v. Priest (Tex. Civ. App.) 126 S. W. 1187; Dorsey v. Olive Sternenberg & Co., 42 Tex. Civ. App. 568, 94 S. W. 413; Walker & Sons v. Allen, 42 Tex. Civ. App. 630, 95 S. W. 585; Texas, etc., Co. v. Brown (Tex. Civ. App.) 179 S. W. 1125; Witherspoon v. Crawford (Tex. Civ. App.) 153 S. W. 633; State v. Alcorn, 78 Tex. 387, 14 S. W. 663; Mason v. Rodgers, 83 Tex. 389, 18 S. W. 811; Dietz v. State, 43 Tex. 371; Vaughan v. Bailey, 11 Tex. Civ. App. 34, 31 S. W. 531; Trinity & S. Railway Co. v. Lane, 79 Tex. 643, 15 S. W. 477, 16 S. W. 18; Carlton v. Krueger, 54 Tex. Civ. App. 48, 115 S. W. 619, 1178.

We therefore overrule the motion for permission to amend the statement of facts.

This suit was brought by the city of Fort Worth and the Fort Worth independent school district to recover from appellant, who was defendant in the trial court, the amount of $827.75 owing to the city and $537.50 owing to the school district, aggregating $1,365.25. The case was tried before a jury, and, on a peremptory instruction from the court, they returned a verdict for the plaintiffs, and the court thereupon rendered judgment for the plaintiffs as prayed for. From that judgment the Baptist Church has appealed to this court.

The errors assigned upon the action of the court in refusing to sustain the general and special exceptions to the plaintiffs' amended petition will not be considered by us, for the reason that there is no order or decree of the court in the transcript showing such action of the court, and therefore the presumption of law is that such exceptions were waived. Turner v. Clark, 18 Tex. Civ. App. 606, 46 S. W. 381; St. Louis Southwestern R. Co. of Texas v. Rollins (Tex. Civ. App.) 89 S. W. 1099; Cheek v. Nicholson (Tex. Civ. App.) 133 S. W. 707; Beadle v. McCrabb (Tex. Civ. App.) 199 S. W. 355 (writ denied); Cotton v. Cooper (Tex. Civ. App.) 160 S. W. 597. That there was no fundamental error in the matters complained of will appear from the opinion following:

The appellant attacks the charter of the city of Fort Worth, charging that the assessment of taxes for the year 1925 was made by virtue of a charter adopted at an election by the voters of Fort Worth on the 11th day of December, 1924, and that no proof having been made that said charter had been legally recorded in a well-bound book provided for the purpose of recording charters and amendments to charters by the city of Fort Worth, and, there being no proof that said charter had been recorded in such a book by the city of Fort Worth and there being no proof that said charter had been recorded in a well-bound book in the office of the secretary of state or under the direction of the secretary of state, no presumption whatsoever was raised that such a charter had been legally adopted, as affirmatively alleged in plaintiffs' petition, and there was no authority shown for the levy and assessment of taxes by any person against the property of defendant, and the trial court erred in taking judicial note and notice that a legal charter had been passed and adopted by the voters of Fort Worth.

In varied forms, these alleged errors are repeated in appellant's propositions 1, 2, and 3, in such manner as to enable us to discuss the questions presented in connection one with the others.

The plaintiffs alleged in their petition that the city of Fort Worth is a municipal corporation, organized and existing under and by virtue of a special charter adopted by the qualified voters within the said city on the 11th day of December, A. D. 1924, in accordance with the laws and Constitution of the state of Texas, and that the Fort Worth independent school district is a corporation of Tarrant county, Tex., duly organized and existing under and by virtue of a special act of the Legislature of the state of Texas. The legal organization of the corporation known as the city of Fort Worth was attacked by the defendant, the First Baptist Church, in a special plea of nul tiel corporation. It is not necessary for appellant's grounds of attack on the charter and the organization of the corporation to be considered, for the reason that such plea was not verified, as required by law, even if the charter and organization were subject to such attack. Article 2010, R. C. S., requires that a plea denying that a corporation has been duly incorporated should be verified. Heller v. City of Alvarado, 1 Tex. Civ. App. 409, 20 S. W. 1003, 1004; Steely v. Texas Imp. Co., 55 Tex. Civ. App. 463, 119 S. W. 323; Sovereign Camp, Woodmen of the World, v. Ruedrich (Tex. Civ. App.) 158 S. W. 170; P. J. Willis & Bro. v. Smith, 17 Tex. Civ. App. 543, 43 S. W. 325.

This attack upon the organization is a collateral attack and it has been held that the organization of a corporation cannot be so attacked; a direct proceeding must be instituted for that purpose. Cook v. Town of Putnam (Tex. Civ. App.) 283 S. W. 649, 650.

There is another ground upon which the appellant's contentions that the corporate organization is void for the want of compliance with the law should be overruled. Article 1174a of the R. C. S. 1925 (Vernon's) provides as follows:

"Validating Charter or Charter Amendments. — That each charter, and amendment to a charter adopted by any city of more than five thousand inhabitants in this State, or where such city has amended or attempted to amend or adopt such charter, since the enactment of Chapter 147, Acts of the Regular Session of the Thirty-Third Legislature of the State of Texas, 1913, and all proceedings had with reference thereto, are hereby validated, and are hereby declared to be in full force and effect, the same as if adopted in strict compliance with all the requirements of said Chapter 147, Acts of the Thirty-Third Legislature, and this Act shall take effect and be in force from and after its passage."

The appellant complains that the trial court erred in holding that judicial cognizance could be taken of the terms and conditions of the plaintiff city of Fort Worth's charter. It appears from the record that the plaintiffs, as stated, pleaded the legal incorporation of the city by a vote of the people within the limits of the city and affirmatively relied on this pleading without introducing any evidence thereof; neither did it introduce the charter to establish its terms and provisions. The defendant, apparently in support of its nul tiel corporation plea, introduced evidence to establish the noncompliance on the part of the city with the statutes regulating the incorporation of cities under the "Home Rule" Amendment.

From the testimony so introduced, it appears that I. L. Van Zandt, Jr., is city secretary and treasurer, and has been since July 1, 1925, who testified, in answer to the questions as to whether or not he had ever seen a copy of the recorded charter that the book he brought with him is the one that he has charge of as a true copy. It is the only one that he found that purports to be a copy of the charter at length; this book was there when he went down there (evidently referring to his office as city secretary and treasurer). He does not know "how the book came there, but it was there when I got there." It appears that the leaves of a pamphlet copy of the charter had been pasted on the leaves of this book so that in regular order they furnished a copy of the charter. The book in which these pages were pasted contained an index for use and had some pages which had been written on, over which the pamphlet leaves were pasted. This book is marked: "New Charter." There has never been a certified copy of the charter printed that the witness knows of, but as far as he knows this is the only charter that purports to be a charter of the city of Fort Worth.

The trial court made the following finding in his qualification of defendant's bill of exception No. 5, to wit: "The foregoing bill of exception is approved with the qualification that in recording the new charter of the city of Fort Worth in the book above mentioned, same was done by taking two printed copies of said charter and pasting leaves from same on the leaves of said book in such a manner that all the pages of said charter appeared in consecutive order in said book so that any citizen desiring so to do could read the entire charter in said book. The book as so made up contained a complete and accurate record of the entire charter adopted by the voters of Fort Worth, and said book contained nothing else, the small amount of writing that appeared on some of the pages of said blank book before it was used for the purpose...