Glenn v. Dallas County Bois D'Arc Island Levee Dist.

• Decision Date: 28 January 1925
• Docket Number: (No. 495-4103.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 268 S.W. 452
• Parties: GLENN v. DALLAS COUNTY BOIS D'ARC ISLAND LEVEE DIST.
• Court: Texas Supreme Court

Page 452

268 S.W. 452

GLENN v. DALLAS COUNTY BOIS D'ARC ISLAND LEVEE DIST.

(No. 495-4103.)^*

Commission of Appeals of Texas, Section B.

January 28, 1925.

Certified Questions from Court of Civil Appeals of Fifth Supreme Judicial District.

Action by the Dallas County Bois D'Arc Island Levee District against M. C. Glenn. From an order sustaining demurrers to amended and supplemental answers, defendant appeals. On certified questions. Questions answered.

Spence, Haven & Smithdeal, and Stroud & Lucas, all of Dallas, for appellant.

Goree, Odell & Allen, of Fort Worth, and Crane & Crane, of Dallas, for appellee.

STAYTON, J.

The trial court having sustained a general demurrer to the first amended original answer of defendant, who is now appellant, but there being an allegation in a supplemental answer seeking to set up fraud, which, in the Court of Civil Appeals, was claimed to be a defense to the levee district's suit, the Court of Civil Appeals, upon this situation, has certified, as the first of four questions, the following:

"Since the allegations of fraud were included only in the supplemental answer filed in response to appellee's first supplemental petition, should they be ignored in considering the general demurrer because they were not embodied in the first amended original answer, or should they be considered as a defense to the cause of action, notwithstanding the pleading which contains them is denominated a supplemental answer?"

The certificate, and the accompanying papers presented to be considered in aid of it, show this to have been the nature of the proceedings: Plaintiff filed its petition suing for a levee improvement district tax under the Laney Act (Acts 4th Called Sess. 1918, c. 44, as amended by Acts 1st Called Sess. 1921, c. 50 [Vernon's Ann. Civ. St. Supp. 1922, art. 5584½ et seq.]). Defendant filed a first amended original answer in reply. Plaintiff by first supplemental petition urged a general demurrer to this answer and pleaded that defendant had appeared before its commissioners of appraisement, and had objected to the original assessment; that his objections had been granted and cured; and that under the statutes he could not be heard in the further complaint now made. Defendant in a first supplemental answer, and expressly in reply to the latter plea, averred that his further objection was prevented at the hearing by the false representations of the commissioners and of the supervisors of the district. Plaintiff in a first supplemental petition urged a general demurrer to this reply.

The district court sustained plaintiff's demurrer to the first amended original answer, which is the ruling referred to in the certified question, and also its demurrer, just above mentioned, to the first supplemental answer. The defendant contended in the Court of Civil Appeals that this was error because the first supplemental answer rendered the first amended original answer good as against general demurrer. On this the latter court is in doubt. The point for investigation is therefore whether the Court of Civil Appeals may consider the first amended original answer as aided by the first supplemental answer in a case where it was not so viewed below.

Under the prescribed practice in the district and county courts the original and the supplemental pleadings "constitute separate and distinct parts of the pleading of each party," the former being for the purpose of stating or defending against the cause of action, and the latter for the purpose of replying to the allegations of the opposing party immediately preceding them; whereas an amendment to either, "as contradistinguished from a supplemental petition or answer," is designed to "add something to, or withdraw something from" the amending party's own pleading, so as to cure its deficiencies. Rules 1 to 15, 142 S. W. xvii, xviii. The practice is suitably designed, and has long been regarded as appropriate, to settle the issues in an orderly manner and with clearness and dispatch, and it is generally understood and easily applied. The observance of it in ordinary cases is therefore a reasonable and useful duty of the district and county courts. The Supreme Court in Cresent Ins. Co. v. Camp et al., 64 Tex. 521, held that the trial court should not have considered a supplemental petition as an amendment to the original, because, "under the rules, the defects in the petition could only be cured by an amendment, whilst the supplement is confined to the avoidance of matter of defense set up in the answer."

On the other hand, the principal purposes of pleading in this state being to advise the court of the facts which are relied upon to sustain or defend the suit, to put each party upon notice of his opponent's claims in that respect, and to furnish record of the issues, and the object of the prescribed practice being "to expedite the dispatch of business," the rules regarding the subject should be construed and applied with these ends in view, and, generally, for those and other reasons, so as to sustain rather than to overturn the discretion of the court that primarily administers them. There are exceptions to literal compliance with them. For instance, though a pleading may be denominated a supplement it may actually constitute an amendment or set up a counterclaim or a cross-action, and, if not excepted to but allowed to stay in the case until judgment, may be considered for all that it means instead of what it is called. Lemp v. Armengol, 86 Tex. 693, 26 S. W. 941; Rains v. Wheeler, 76 Tex. 390, 13 S. W. 324, and authorities following it; Erie Telegraph & Telephone Co. v. Grimes, 82 Tex. 89, 17 S. W. 831; Johnson v. White (Tex. Civ. App.) 27 S. W. 174; and see generally Const. art. 5, § 25; Barnes v. Patrick, 105 Tex. 149, 146 S. W. 154; C., R. I. & G. Ry. Co. v. Pemberton, 106 Tex. 463, 161 S. W. 2, 168 S. W. 126; Clarendon Land Co. v. McClelland Bros., 86 Tex. 179, 23 S. W. 576, 1100, 22 L. R. A. 105.

In the present instance the supplemental answer was not allowed to remain; demurrer was sustained to it. And the first amended original answer also left the case on demurrer. It is not shown that the trial court treated the supplement as a part of the original or acted upon it as such; it is not indicated that either of the parties so acted, or, in that respect, that one demurrer was leveled at both pleadings, and was sustained on that basis. No elements of waiver, estoppel, substantial compliance, theory of trial, exercise of exceptional discretion, or cure, are presented. It is not necessary to consider instances of that sort. The rules and their interpretation in the Camp Case were not departed from by the district court, but were obeyed. There appears to be no reason for disturbing its decision. The reply given to the first question is that the allegations in the supplemental answer are not to be considered by the Court of Civil Appeals as a defense to the cause of action.

The second and fourth questions that are certified are:

(2) "Do the commissioners of appraisement constitute a court of special jurisdiction whose findings of benefits to land and laying of assessments against it constitute decrees and judgments of a court such as may not be collaterally attacked for fraud?"

(4) "If the commissioners of appraisement do not constitute a court in the sense that their orders and decrees, apparently regularly made under the statute, are not to be considered as the judgment of a judicial tribunal, can a suit for the collection of a delinquent assessment, on its face appearing to have been regularly made in conformity with the statutory provisions of chapter 44 of the Acts of the Thirty-Fifth Legislature, be resisted upon allegations of fraud?"

If it should be found that upon collateral attack the same rule applies to ordinary courts and to assessing boards, one answer will suffice for both questions and obviate the decision of whether or not this particular body is a court. For the defense mentioned in both is a collateral attack. Crawford v. McDonald, 88 Tex. 630, 33 S. W. 325; Stanley v. Supervisors, 121 U. S. 542, 7 S. Ct. 1234, 30 L. Ed. 1000; State v. Three States Lumber Co., 198 Mo. 430, 95 S. W. 333; Gaither v. Green, 40 La. Ann. 362, 4 So. 210; Dickey v. People, 160 Ill. 633, 43 N. E. 606.

In this inquiry the nature and functions of the commissioners of appraisement are first to be noticed. The provisions of the act, from that viewpoint, will be summarized, and the important phraseology, and that emphasized by the parties, will be retained in the process. In passing to the subject, it may be observed that, because no similar point was raised in the trial court and none is mentioned in the matter or questions certified, the contentions of appellant, submitted in this court, to the effect that certain provisions of the act are unconstitutional, will not be examined; but the law, for the purpose of this opinion, will be assumed to be valid as written:

The supervisors or managers of the district appoint as commissioners of appraisement three disinterested persons who are not freeholders within the district, but own land elsewhere, and are unrelated within certain degrees to those so selecting them. The commissioners at a first meeting take oath for the faithful and impartial discharge of their duties, elect a secretary to act during their continuance in office, a chairman and a vice chairman. They may at any time call upon the attorney of the district for legal advice, but the supervisors have no power or authority with respect to their proceedings. After their organization the commissioners proceed to view the property within the district, or that will be affected by the fulfillment of its "plan of reclamation," and assess consequent benefits and damages. They also view all lands outside the district that may be acquired for its purposes under the act. This done, they make true report of their findings, showing the owner of...