Realty Trust Co. v. First Baptist Church of Haskell

• Decision Date: 19 February 1932
• Docket Number: No. 949.,949.
• Citation: 46 S.W.2d 1009
• Parties: REALTY TRUST CO. v. FIRST BAPTIST CHURCH OF HASKELL
• Court: Texas Court of Appeals

46 S.W.2d 1009

REALTY TRUST CO. v. FIRST BAPTIST CHURCH OF HASKELL

No. 949.

Court of Civil Appeals of Texas. Eastland.

February 19, 1932.

Appeal from District Court, Haskell County; Clyde Grissom, Judge.

Suit by the Realty Trust Company against the First Baptist Church of Haskell. From the judgment, plaintiff appeals.

Affirmed.

Goggans & Ritchie and Mart W. Reeves, all of Dallas, for appellant.

H. R. Jones, of Haskell, for appellee.

HICKMAN, C. J.

Appellant, as assignee of Tibbetts Construction Company, instituted this suit upon a certificate of special assessment issued by the city of Haskell for the appellee's pro rata part of the cost of improving a portion of a street in Haskell upon which its property abutted. The defendants named were the First Baptist Church, Haskell, Tex., and certain individuals composing the Board of Deacons and governing body of the church. The relief sought was a money judgment against each of the named defendants, and the foreclosure of the assessment lien against the property described. By an order entered of record appellant dismissed as to the individuals named as defendants "as individually." We interpret this order to mean that appellant abandoned its cause of action for a personal judgment against these individuals. It clearly had no cause of action against them, and the order was entered, doubtless, to evidence that a final judgment disposing of all parties had been rendered in the case. Trial was had before the court without a jury, and judgment was entered establishing the indebtedness and foreclosing the lien, but denying any personal judgment against the appellee First Baptist Church. An order of sale was directed to issue. Appellant was dissatisfied with the judgment, in so far as same denied it a personal recovery against the church, and has perfected an appeal. Appellee gave notice of appeal, but did not perfect same. Its brief contains cross-assignments of error.

In fixing the lien upon the property in controversy, the city of Haskell proceeded under chapter 106, Acts of 1927 (1st Called Sess.), shown as article 1105b, Vernon's Annotated Texas Civil Statutes. The provisions of that act were fully complied with, and it necessarily follows that a lien was thereby fixed upon appellee's property, if the act itself is a valid one. It is stated in appellee's brief that the act is unconstitutional, but there is no cross-assignment of error presenting any question of its constitutionality for our decision. We therefore do not determine the validity of this legislation, but, assuming it to be valid, a lien was fixed upon appellee's property.

Appellant's prayer in this court that we render a personal judgment against the appellee cannot be granted. The lower court properly denied this relief. The appellee is an unincorporated association organized for religious purposes only. It is well settled by the decisions in our state that no personal judgment can be rendered against an unincorporated church, as such. It is not a legal entity. Tunstall v. Wormley, 54 Tex. 476; Burton v. Grand Rapids School Furniture Co., 10 Tex. Civ. App. 270, 31...