Realty Trust Co. v. Lindsey, 1676-6847.

• Decision Date: 19 May 1937
• Docket Number: No. 1676-6847.,1676-6847.
• Citation: 105 S.W.2d 210
• Parties: REALTY TRUST CO. v. LINDSEY et al.
• Court: Texas Supreme Court

105 S.W.2d 210

REALTY TRUST CO. v. LINDSEY et al.

No. 1676-6847.

Commission of Appeals of Texas, Section B.

May 19, 1937.

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

Suit by the Realty Trust Company against J. E. Lindsey and others. To review judgment of the Court of Civil Appeals, 75 S.W.(2d) 322, reversing judgment for the plaintiff and rendering judgment for the defendants, the plaintiff brings error.

Judgment of Court of Civil Appeals reversed, and judgment of trial court affirmed.

Goggans & Ritchie and Mart W. Reeves, all of Dallas, for plaintiff in error.

Ratliff & Ratliff, of Haskell, for defendants in error.

TAYLOR, Commissioner.

In this suit Realty Trust Company seeks to recover on a paving certificate the amount of a special assessment for paving a portion of Hughes street in the city of Haskell and to foreclose the assessment lien levied by the city pursuant to the provisions of what is now article 1105b of Vernon's Texas Statutes 1936. The suit is upon the certificate evidencing the lien, and is against J. E. Lindsey and Albena Lindsey, owners of abutting property, for their pro rata part of the cost of the improvement. The case was tried before the court without a jury and resulted in a judgment for the company for the amount of its debt and for foreclosure. Upon appeal by the Lindseys the Court of Civil Appeals reversed the judgment of the trial court and rendered judgment that the assessment sued on was void and that the company take nothing. 75 S.W.(2d) 322.

The Lindseys defended upon the ground, among others, that article 1105b, supra, is in effect an amendment of the paving statutes existing at the time the amendment was enacted, and that its enactment was in violation of the requirement of section 36 of article 3 of the Constitution of the state with respect to the enactment of an amendment to existing law.

It is not necessary to discuss this ground of defense, for the reason that the question thereby presented has recently been settled. In West Texas Construction Co. v. Doss et ux., 59 S.W.(2d) 866, the Court of Civil Appeals held that the act in question was not an amendment of the paving statutes, but was a general paving law complete within itself, and cumulative of the then existing statutes on the subject. This court affirmed and adopted the opinion of the Court of Civil Appeals, holding that article 1105b, supra, is valid and was available in that case to the city of Colorado. Doss v. West Texas Construction Co. (Tex.Com.App.) 96 S.W.(2d) 1116.

The Lindseys defended also upon the ground that the purported notice of assessment, a necessary prerequisite to the validity of the assessment, published by the city, was invalid. It was upon this ground that the Court of Civil Appeals declared the assessment void and of no effect, and accordingly rendered judgment against the company.

The proceedings looking to the making of the paving improvements in question were had under the terms of article 1105b, supra. Section 9 of this article stipulates what shall constitute sufficient notice that cities of the class here involved propose to construct such improvements. Following immediately the stipulation that notice "shall be by advertisement inserted at least three times in some newspaper published in the city * * * at least 10 days before the date of hearing," is the provision that "such notice shall be sufficient" if it describes in general terms the nature of the improvements proposed, states the highways, or portions thereof, to be improved, states the estimated amount per front foot proposed to be assessed against the owners of abutting property, states the estimated total cost of the improvements on each such highway, or portions thereof, and states the time and place at which such hearing shall be held. (Italics ours.)

An ordinance embodying all of the requirements necessary to make the notice provided for sufficient in all of the respects stipulated, was passed and approved by the city council on January 26, 1928. It describes in general terms, and in detail, the nature of the improvements, designates the streets and portions thereof to be paved, states the estimated amounts to be assessed against abutting property and the owners thereof, both per...