Hinton v. Uvalde Paving Co.

• Decision Date: 27 October 1934
• Docket Number: No. 11479.,11479.
• Citation: 77 S.W.2d 733
• Parties: HINTON et al. v. UVALDE PAVING CO.
• Court: Texas Court of Appeals

77 S.W.2d 733

HINTON et al. v. UVALDE PAVING CO.

No. 11479.

Court of Civil Appeals of Texas. Dallas.

October 27, 1934.

Rehearing Denied January 5, 1935.

Appeal from District Court, Kaufman County; Joel R. Bond, Judge.

Suit by the Uvalde Paving Company against Mrs. Eva Hinton, who was joined pro forma by W. R. Hinton, her present husband, wherein defendants filed cross-action. Judgment for plaintiff, and defendants appeal.

Affirmed.

Ashworth, Crisp & Ashworth, of Kaufman, for appellants.

Bartlett, Thornton & Montgomery, of Dallas, for appellee.

LOONEY, Justice.

The Uvalde Paving Company sued Mrs. Eva Hinton (joining pro forma W. R. Hinton, her present husband), administratrix of the estate of her late husband, D. H. Mitchell, to recover balance due on two street paving certificates, issued by the city of Terrell, and to establish the statutory liens on the benefited property, being lot 3 in block 51 of said city, fronting 125 feet on the east side of Catherine street and 125 feet on the north side of College street. Appellants answered by general denial and special pleas, to the effect that the certificates were void, in that precedent requirements of the charter and ordinances of said city were not complied with; that the certificates were in excess of benefits derived from the improvements; that the lot in question was the homestead of Mrs. Hinton and her former husband, D. H. Mitchell, at the time of said improvements and the alleged accrual of the liens; and in a cross-action appellants alleged that, in making the improvements, appellee placed dirt, excavated from the streets, in and upon the lot in question, causing water to run under the foundation of the house thereon, damaging the property in the sum of $1,500, for which they sought judgment against appellee.

At the conclusion of the evidence, the court submitted but one issue to the jury; that is, as to the amount of the attorney fee that should be allowed appellee, which the jury found to be $120. On other issues, the court found from undisputed evidence that the certificates were issued according to law and created valid liens upon the land in question; that at the time the lien was created D. H. Mitchell and his wife (now Mrs. Hinton) owned a place on Pacific avenue, in the city of Terrell, upon which they resided, and that, "the evidence being conclusive that the property on Pacific Avenue was the homestead of D. H. Mitchell and wife, such lien against the property involved in this suit (Catherine Street lot) cannot be defeated by the plea of homestead exemption"; also found that the cause of action for damages, urged by appellants in the cross-action, was barred by the statute of two years' limitation, therefore rendered the judgment appealed from, which awarded appellee recovery of the amount due upon the certificates, principal, interest, and attorney fee, established the statutory lien upon the Catherine street property, and denied recovery on the cross-action for damages.

Under provisions of article 1105b, § 6, Vernon's Ann. Civ. St., the certificates constituted prima facie evidence of all the matters recited therein, i. e., that the proceedings in regard to the improvements were regularly had in compliance with law, and that all prerequisites to the fixing of the assessment lien against the property and the personal liability of the owners had been performed; this being true, appellee was not required, in order to make out a prima facie case, to introduce the supporting ordinances and proceedings; however, appellee saw fit to introduce them, to which appellants urged sundry objections, and assigned errors on the action of the court in admitting same over their objections.

We find no error in the action of the court in the admission of these proceedings; therefore overrule all assignments and related propositions in regard to this phase of the case.

Over appellants' objection, the court permitted appellee to read from the deed records of Kaufman county a document purporting to be a homestead designation, dated July 10, 1925, regularly executed by D. H. Mitchell and wife (now Mrs. Hinton), designating as their homestead the Pacific avenue place, their residence at the time the street improvements were made; the contention being that the record of this document was not admissible, in the absence of an agreement permitting the introduction of the instrument in this manner, no certified copy of the record having been filed and notice given, as required by article 3726, R. S. We think the objection should have been sustained. The execution of the designation by Mitchell and wife was not proven, and no attempt was made to comply with the provisions of the statute in regard to the filing of a certified copy; however, in view of the remaining undisputed evidence, which conclusively shows that the Pacific avenue property, at the time the liens accrued, was the homestead of the Mitchells, the error of the court, in admitting the evidence, became harmless, hence the assignment in regard to this matter is overruled.

In support of the homestead plea, appellants offered in evidence an order of the probate court of Kaufman county, of date July 11, 1932, setting aside to Mrs. Hinton, discharged of any and all debts of whatever kind and character, the Catherine street place as her homestead, which was excluded on objection by appellee, and the action of the court in this respect is assigned as error. We do not think the court erred in excluding the probate court order; in the first place, appellants did not base their homestead right upon such order, but upon other and different facts; but, if the issue had been properly pleaded, the alleged error of the court in excluding the order, not having been complained of by appellants in their motion for a new trial, was waived. See Universal Life, etc., Co. v. Armstrong (Tex. Civ. App.) 63 S. W.(2d) 225. Again, if the issue had been properly pleaded, and the action of the court properly assigned and presented for review, nevertheless we would be compelled to sustain the ruling of the trial court. The statute (article 3492, as amended by Acts 1931, c. 236, § 1 [Vernon's Ann. Civ. St. art. 3492]) does not authorize the probate court to set aside to a widow and minor children, as exempt, property upon which there exists a valid subsisting lien or appropriate same to make up allowances in lieu of exemptions discharged of existing liens, to the loss or detriment of a lienholder. Prior to its amendment by the Forty-Second Legislature, the statute (...