Murray v. Reagan, 2050 - 6835.

• Decision Date: 03 March 1937
• Docket Number: No. 2050 - 6835.,2050 - 6835.
• Citation: 102 S.W.2d 202
• Parties: MURRAY v. REAGAN.
• Court: Texas Supreme Court

102 S.W.2d 202

MURRAY v. REAGAN.

No. 2050 - 6835.

Commission of Appeals of Texas, Section A.

March 3, 1937.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Suit by the City of Floydada, which was subsequently dismissed from the suit, and the North Texas Trust Company, for which Owen M. Murray, as receiver, was substituted, against Dora Reagan and another. Judgment for plaintiff against the named defendant was reversed and the cause remanded by the Court of Civil Appeals [74 S.W.(2d) 314], and plaintiff brings error.

Judgment of Court of Civil Appeals reversed and judgment of District Court affirmed.

Bartlett, Thornton & Montgomery, of Dallas, for plaintiff in error.

H. D. Payne, of Floydada, for defendant in error.

HICKMAN, Commissioner.

Plaintiff in error will be called plaintiff, and defendant in error defendant. The suit is upon a special assessment certificate for paving issued by the city of Floydada and to foreclose the paving lien against a lot abutting upon the improved street. In the trial court plaintiff introduced the certificate and defendant introduced minutes of the city counsel. The minutes failed to disclose by what vote the ordinances by which the council determined the necessity of such improvement and levied the assessment were passed. The trial court rendered judgment in favor of plaintiff. On appeal the Court of Civil Appeals reversed that judgment and remanded the cause. 74 S.W.(2d) 314.

It was the view of the Court of Civil Appeals that the burden was upon plaintiff to establish affirmatively that the ordinances were passed by a vote of two-thirds of the aldermen present in accordance with the provisions of R.S. art. 1082.

The paving was done and the certificate issued under authority of the 1927 paving act, chapter 106, Acts 1st. Called Session, 40th Legislature, Vernon's Ann.Civ.Stat. art. 1105b. The certificate contained the following recital: "That all the proceedings with reference to making such improvements have been regularly had in compliance with the law and that all prerequisities to the fixing of the Assessment Lien against the property described in this Certificate and all prerequisities to the fixing of the personal liability evidenced by this Certificate, have been duly performed."

Article 1105b, Vernon's Ann.Civ.Stat. § 6, provides: "If any such certificate shall recite substantially that the proceedings with reference to making the improvements therein referred to have been regularly had in compliance with the law and that all prerequisites to the fixing of the assessment lien against the property described in said certificate and the personal liability of the owner or owners thereof have been performed, same shall be prima facie evidence of all the matters recited in said certificate, and no further proof thereof shall be required."

The same article in section 9 provides for notice and opportunity for hearing and for an appeal within 15 days from the time assessment is levied and then provides: "* * * and anyone who shall fail to institute such suit within such time shall be held to have waived every matter which might have been taken advantage of at such hearing, and shall be barred and estopped from in any manner contesting or questioning such assessment, the amount, accuracy, validity, regularity and sufficiency thereof, and of the proceedings and contract with reference thereto and with reference to such improvements for or on account of any matter whatsoever. And the only defense to any such assessment in any suit to enforce the same shall be that the notice of hearing was not published or did not contain the substance of one or more of the requisites therefor herein prescribed, or that the assessments exceed the...