Hodgkins v. Sansom, 14046.

• Decision Date: 24 November 1939
• Docket Number: No. 14046.,14046.
• Parties: HODGKINS et al. v. SANSOM et al.
• Court: Texas Court of Appeals

135 S.W.2d 759

HODGKINS et al. v. SANSOM et al.

No. 14046.

Court of Civil Appeals of Texas. Fort Worth.

November 24, 1939.

Rehearing Denied January 26, 1940.

Appeal from District Court, Tarrant County; A. J. Power, Judge.

Suit by James Hodgkins and another against M. Sansom, Jr., and others, as trustees of the Rosen Heights Independent School District, to restrain the issuance of bonds, wherein defendants filed a demurrer. From a judgment for defendants, plaintiffs appeal.

Affirmed.

McLean & Scott and Glover Johnson, all of Fort Worth, for appellants.

Greathouse & Swanger and J. Elwood Winters, all of Fort Worth, for appellees.

BROWN, Justice.

On July 8th, 1939, James Hodgkins and Wm. F. Charbonneau, resident citizens and property taxpayers, residing in the confines of Rosen Heights Independent School District, a lawfully constituted public school district, brought suit in the 96th district court of Tarrant County against M. Sansom, Jr., J. R. Swart, C. H. Putnam Fred Hull, C. L. Matthies and E. I. Bearden, alleged to be duly elected, qualified and acting Trustees of said Independent School District, and against J. Earl Hodgkins, alleged to be acting as such Trustee, but that said Hodgkins is not in fact and has not been lawfully elected and that he is and was without power to act.

It is alleged that on May 26, 1939, at a purported meeting of said Trustees, the defendants, Bearden, Hull, Matthies and J. Earl Hodgkins, attempted to make and did make a purported order calling for an election to be held on Saturday, June 17, 1939, at the school house in said district, for the purpose of voting on the question of issuing bonds to erect either an addition to the old school buildings, or to erect a new building, and for making other improvements in and on the school properties.

It is alleged that J. Earl Hodgkins claims to have been elected as such Trustee at the regular school trustee election, held for and in such district on April 1, 1939, but that at the time of such election said Hodgkins "was either not a resident of said school district at the time of said election of April 1st, 1939, or removed from said district on April 4th, 1939, and has continued to reside outside of said district continuously ever since, and as such is either not entitled to be elected to the position of such Trustee at said election of April 1st, 1939, or since April 4th, 1939, has not been qualified to act as such Trustee; and that by reason of the aforesaid disqualification of the defendant, J. Earl Hodgkins, to act as such Trustee there was not a quorum of duly elected, qualified and acting Trustees of said District at the said meeting of May 26, 1939, at which the election for said bond issue was ordered; and that therefore and by reason thereof no valid order has ever been passed by a duly qualified Board of Trustees of said District calling such election."

These allegations are followed by those asserting that the combined maintenance and bond tax now being levied and collected by the said School District is the maximum allowed by law, namely, one dollar per hundred on the assessed values of the properties located in the District and that in order to discharge and pay the indebtedness of the district the assessed value of all property therein has been raised approximately one-third over the state and county assessed values of said property; that at the election held in said district on June 17, 1939, a majority vote was cast favorable to the issuance of the said bonds, "and that the defendants, or some of them, claiming to be a quorum of said Trustees, are planning to issue and negotiate said bonds, so voted, and to put the same in the hands of purchasers thereof."

It is alleged that if the bonds are issued and sold it will naturally result in an increase in the amount of lien created by issuance of the bonds upon the properties belonging to the plaintiffs, and an increase in the amount of taxes to be paid by the plaintiffs, "all of which will be to the great hurt and harm of plaintiffs, for which they have no adequate legal remedy."

The plaintiffs pray for a temporary writ of injunction restraining the defendants from issuing, negotiating and delivering the bonds to anyone, and that upon a final hearing the injunction be made permanent.

Upon presentation of such petition, the trial court granted plaintiffs' prayer for a temporary injunction and ordered a hearing had on July 14, 1939, requiring the defendants to appear and show cause why the injunction should not be granted as prayed for.

At such hearing, the defendants filed a general demurrer, a general denial and specially pleaded that the matters and facts set up in the plaintiffs' petition have been fully determined and adjudged in favor of the defendants by a final, valid judgment rendered by the said 96th district court, on June 16, 1939, in a prior cause entitled Earl Barksdale et al. v. M. Sansom, Jr., et al., and being numbered 25485-A on the docket of said court.

The cause being tried to the court, after hearing the testimony and receiving evidence, the trial court denied plaintiffs the injunctive relief sought, and they have appealed.

It was established before the court that J. Earl Hodgkins, when he was elected a Trustee of said school district, was a resident citizen and tax-payer of the same, but that early in April, 1939, Hodgkins' home burned and he was compelled to look for another place in which to live. Under such conditions and circumstances, Hodgkins found, rented and moved into a house in the same neighborhood, which, he testifies, he later learned was about 150 yards north of the line of the said school district.

It appears that at no time during which the acts complained of by plaintiffs were had and done did Hodgkins know that his then residence was not located within the borders of such school district. Furthermore, Hodgkins testified that it was not his intention to abandon his home site, but that he intended to rebuild as soon as he is financially able to do so.

We find the following situation in the prior suit, on which defendants rely for sustaining their plea of res judicata: Earl Barksdale, S. H. Shipe and J. M. Shaffer brought suit in the 96th district court against M. Sansom, Jr., J. E. Hodgkins, J. R. Swart, C. H. Putnam, Fred Hull, C. L. Matthies, E. I. Bearden, S. E. Watson, J. R. Foster and Rosen Heights Independent School District, and alleged practically the same facts set forth in the petition in the instant suit, and they prayed for a writ of injunction enjoining the defendants from holding the election on the question of the issuance of the bonds in controversy and that such...