Robinson v. State

• Decision Date: 29 June 1940
• Docket Number: No. 12889.,12889.
• Parties: ROBINSON v. STATE et al.
• Court: Texas Court of Appeals

143 S.W.2d 629

ROBINSON v. STATE et al.

No. 12889.

Court of Civil Appeals of Texas. Dallas.

June 29, 1940.

As Corrected on Denial of Rehearing October 5, 1940.

Appeal from District Court, Dallas County; Sarah T. Hughes, Judge.

Action by H. Reid Robinson against the State of Texas and others, to set aside a tax judgment. From an adverse judgment, the plaintiff appeals.

Judgment affirmed.

Read, Lowrance & Bates, of Dallas, for appellant.

L. L. McGuire and Lenore B. McGuire, pro se, both of Dallas, for appellees.

LOONEY, Justice.

Appellant, H. Reid Robinson, instituted the present proceedings, denominated a motion, but, in our opinion, an independent action, to set aside a tax judgment rendered below in cause No. 29,976-A, styled The State of Texas v. H. Reid Robinson et al. On April 9, 1931, the State filed suit to recover delinquent taxes due the State and County of Dallas, amounting to $41.30, and to foreclose the tax lien upon the west 55 feet of Lot 8 in Block 2751/9 in the City of Dallas, owned by appellant.

On March 4, 1931, the attorney representing the State filed an affidavit for citation by publication, alleging that the residence of appellant was unknown to the affiant. The citation was duly issued and published, and on April 12, 1932, the court appointed an attorney to represent appellant. The attorney ad litem filed an answer containing a general demurrer and general denial, and, on same day, the court tried the case and rendered judgment establishing, as due and unpaid, the taxes sued for, but failed to adjudge appellant personally liable for its payment; also decreed foreclosure of the tax lien on the real estate involved; and on April 27, 1932, a statement of the facts adduced at the hearing was duly prepared, signed by counsel, approved by the court, and filed as a part of the record.

On December 1, 1936, the sheriff of Dallas County sold the property under an order of sale issued on the judgment; L. L. McGuire purchasing same on his bid of $100. Subsequently, McGuire paid $105.55, the amount of taxes accruing subsequently, and it appears that, at the time of sale, there also existed against the property unpaid taxes due the City of Dallas, amounting to $145.06. Later, L. L. McGuire quit-claimed the property to his mother, Mrs. Lenore McGuire.

On January 26, 1939 (nearly seven years after the rendition of the tax judgment), appellant instituted the present proceedings against the State, L. L. McGuire and Mrs. Lenore McGuire, contending, for reasons hereinafter stated, that the judgment, order of sale, sheriff's sale, the deed to L. L. McGuire, and his quit-claim deed to Mrs. Lenore McGuire, were void and clouds upon his title. However, appellant admitted his liability for the taxes and court costs properly chargeable, offered to pay same; praying that the tax judgment and all proceedings thereunder, and the documents just named, be canceled and removed as clouds on his title. The husband of Mrs. Lenore McGuire was duly cited, but failed to answer. The material defenses pleaded by the State and the McGuires, answering separately, were general denials and the statutes of limitation of two and four years.

For reasons which will be shown hereafter, we do not think the tax judgment was void upon the face of the record; hence, before appellant was entitled to have it set aside, he was required to exhibit a meritorious defense to the State's action. But he made no such showing, nor does he contend here, that he has a meritorious defense to the action; on the contrary, admits liability for the taxes; alleged his willingness to pay same and the accrued court costs; and, subject to the court's orders, offered to place the necessary amount in the court's registry; praying that, on final hearing, the tax judgment be set aside and that he be permitted to pay said taxes, costs, etc.

As appellant admits the justice of the State's cause of action, we do not think he is in any position to ask the court to indulge in the useless circumlocution of setting aside the judgment already rendered, in order to again render judgment, or else afford appellant an opportunity to pay the taxes sued for and accrued court costs without judgment. See 25 Tex.Jur., § 221, p. 633; Snell v. Knowles, Tex.Civ.App., 87 S.W.2d 871, 879.

In view of what has just been said, we think the State's connection with the suit could end at this point, as we do not think the State has a justiciable interest in either of the other issues involved. However, as the State and the other appellees urged other and common defenses, the questions presented will be discussed and disposed of during the further progress of this opinion.

It is obvious that, in asking that the judgment and all subsequent proceedings had thereunder be canceled, appellant sought equitable relief, to which, in our opinion, the four-year statute of limitation (Art. 5529) was applicable. As heretofore shown, the judgment sought to be canceled was rendered on April 12, 1932; the present proceedings were begun on January 26, 1939, nearly seven years later. To avoid the bar of limitation, appellant contends that, he had no knowledge of the suit or of the judgment, until on December 13, 1939, when he ascertained that L. L. McGuire had placed a "For Sale" sign on the lot; but he does not excuse his failure to sooner ascertain the facts. It is disclosed that, for twelve years, 1927-1938, appellant failed to either render the property or pay taxes thereon. Cognizant of his repeated delinquencies, and charged with a knowledge of the controlling statutes, appellant must have realized the probability that public officials, charged with the duty, would endeavor, with the means at hand, to collect the delinquent taxes. In view of this situation, we think it obvious that, if appellant had been reasonably diligent in the discharge of his duty as taxpayer, and regardful of his own interest, he could and would have acquired full knowledge of the existence of the judgment and of the proceedings had thereunder; therefore, we think that his cause of action was barred under the four-year statute. 25 Tex.Jur., § 227, pp. 643, 644; Griggs v. Montgomery, Tex.Civ.App., 22 S.W.2d 688, 694; Snell v. Knowles, Tex.Civ.App., 87 S.W.2d 871, 881.

However, we will discuss the other questions presented, one being that the judgment was void because the State's petition was fatally defective, and insufficient to support the judgment, in that the delinquent taxes sued for were alleged to have accrued on impossible dates; that is, for the years 27, 28 and 29, the century not being identified.

The State's petition adopted and made a part of its allegations, the delinquent tax notice issued by the tax collector of Dallas County, dated September 5, 1930. Under the heading "Years Sold or Delinquent", there appears in the notice the numerals "27, 28 and 29". The notice named appellant as owner, properly described the land in question, and, in detail, stated the amount of taxes due the State and County.

We think the petition sufficiently identified the years involved. It will be presumed that the notice issued by the collector on September 5, 1930, followed the due order of procedure prescribed by statute for the collection of taxes, and had reference only to recent preceding years. Besides, we think it a familiar colloquial expression to designate years as was done in the petition and in the tax notice. However, the particular years involved were rendered certain by evidence adduced at the trial, as shown by the statement of...