Hotman v. State

• Decision Date: 16 February 1949
• Docket Number: No. 9767.,9767.
• Citation: 217 S.W.2d 890
• Parties: HOTMAN et al. v. STATE et al.
• Court: Texas Court of Appeals

217 S.W.2d 890

HOTMAN et al. v. STATE et al.

No. 9767.

Court of Civil Appeals of Texas. Austin.

February 16, 1949.

Rehearing Denied March 2, 1949.

Appeal from District Court, Fayette County; J. R. Fuchs, Judge.

Suit by the State and others against Frieda Hotman, Milton H. Hotman, Lillian Hamblen and Joe Zdaril, and others, for collection of delinquent taxes on certain realty. From the judgment, defendants Frieda Hotman, Milton Hotman and Lillian Hamblen appeal.

Judgment affirmed.

Wm. H. Hamblen, of Edna, for appellants.

John C. Marburger, of La Grange, for appellees.

ARCHER, Chief Justice.

This is a tax suit brought by the State of Texas, Fayette County and its political subdivisions, whose taxes are collected by the County Assessor-Collector of Taxes, and by the City of Fayetteville, against Frieda Hotman and others for the collection of delinquent taxes for the years 1929, 1930, 1931, and 1933, on fraction of Block 37, Munger Addition to the City of Fayetteville. Trial was before the court and resulted in a judgment fixing the taxes due and unpaid; determining the amount on each of two portions, and providing for a plan of division and for payment of the taxes.

Defendant Joe Zdaril has since the rendition of the judgment paid the amount of the taxes adjudged against him and his part of the property; and this appeal is by Mrs. Frieda Hotman, Milton H. Hotman and Lillian Hamblen, who complain of the error of the court in several particulars.

By their assignments Nos. 1 and 2 error is alleged to have been committed by the court in foreclosing a tax lien on the entire block, but since the taxes have been paid by Zdaril on his one-third of the property, and the appellants having agreed in court that they are liable for two-thirds of the legal taxes, these assignments are rendered moot. Victory v. State, 138 Tex. 285, 158 S.W.2d 760; 40 Tex.Jur., p. 125; Art. 7172, R.C.S.

Assignments Nos. 3, 4, 5, 6, 7 and 8 are directed to the admission of certain testimony by the court.

Evidence was offered as to the inability of the City of Fayetteville to produce some original tax records; those offered were offered as the best evidence then available, and we believe they are admissible under the circumstances. Doubtless the records could have been shortened by an agreement as to the pertinent facts, but the trial was before the court, and the presumption is that he considered only those portions that were material and no harm resulted to the appellants....