Flynt v. City of Kingsville

• Decision Date: 27 April 1932
• Docket Number: No. 8817.,8817.
• Citation: 50 S.W.2d 414
• Parties: FLYNT et ux. v. CITY OF KINGSVILLE.
• Court: Texas Court of Appeals

50 S.W.2d 414

FLYNT et ux. v. CITY OF KINGSVILLE.

No. 8817.

Court of Civil Appeals of Texas. San Antonio.

April 27, 1932.

Rehearing Denied June 1, 1932.

Error from District Court, Kleberg County; W. B. Hopkins, Judge.

Action by the City of Kingsville against T. A. Flynt and wife. Judgment for plaintiff, and defendants bring error.

Affirmed in part, and reversed and rendered in part.

E. B. & Howell Ward, of Corpus Christi, for plaintiffs in error.

E. H. Crenshaw, Jr., and C. L. Gordon, both of Kingsville, for defendant in error.

COBBS, J.

Plaintiff in error T. A. Flynt, and wife, Willie Flynt, bring this writ of error from a judgment by default rendered against them jointly and severally for $197.76, with interest at the rate of 7 per cent. for $100 attorney's fees taxed as costs, and for foreclosure of a lien upon certain real estate in the city of Kingsville. It is a suit to foreclose an assessment lien upon certain property. The appeal is based upon assignments such as (1) those attacking the sufficiency of the petition or the evidence, (2) those attacking the validity of the service, and (3) those attacking the validity of the judgment.

It is alleged in the petition that the persons or owners of the property were caused to "be duly and legally notified that certain streets had been ordered paved and an assessment would be levied against the abutting property owners, which notice was given by registered letters mailed and received by the owners," and that in addition thereto "plaintiff gave notice as required by law by making publication of such notice at least three times in the Kingsville Record, * * * that such notice appointed a time for a hearing of any protest that might be filed by the owner abutting on said street; that no protest against the paving of said street was filed."

The petition was in all respects sufficient to show the issues involved in this suit. It showed that statutory notice was given to plaintiffs in error of a hearing at which they could protest against an assessment; and the pleadings and the evidence were amply sufficient to support the judgment.

It was alleged and proved that the citizens of Kingsville, at an election for that purpose, voted to adopt the state paving law set forth in title 28 of the Revised Statutes. The power of the city is shown in articles 1086 to 1096, and it is provided by article 1104 that the benefits of such article and of articles 1086 and 1096 shall apply to any city when a majority of the voters, at a special election, shall vote to adopt the same. In the present case the municipality was not required to strictly follow the provisions of its charter. Bennison v. City of Galveston, 18 Tex. Civ. App. 20, 44 S. W. 613. If plaintiffs in error desired to raise any question of exemption, the burden was upon them to plead and prove the property as exempt. The proof and...