Stair v. Smith

• Citation: 299 S.W. 660
• Decision Date: 26 October 1927
• Docket Number: (No. 7002.)
• Parties: STAIR v. SMITH, County Judge, et al.
• Court: Court of Appeals of Texas

299 S.W. 660

STAIR v. SMITH, County Judge, et al.

(No. 7002.)

Court of Civil Appeals of Texas. Austin.

October 26, 1927.

Appeal from District Court, Caldwell County; M. C. Jeffrey, Judge.

Proceeding by O. F. Stair against M. U. Smith, County Judge, and others for an injunction. From a judgment for defendants, plaintiff appeals. Affirmed.

C. F. Richards and E. B. Coopwood, both of Lockhart, and Hart, Patterson & Hart, of Austin, for appellant.

Fred L. Blundell and Tom Gambrell, both of Lockhart, for appellees.

BLAIR, J.

By this proceeding appellant sought to enjoin the board of equalization, the tax assessor, and the tax collector of Caldwell county from taking any action to enforce and from the collection of taxes on certain property owned by him in that county, at the valuation fixed by the board for the year 1925, alleging: First, that he assessed the property at $15,000, but that the board of equalization, "without the introduction of any testimony," and without evidence or proof, arbitrarily and illegally increased the assessment to $32,000; and, second, that appellant's one-eighth royalty interest in the oil produced and saved from the realty involved, which constituted the basis for the increased assessment, was not taxable as an interest in or a part of the real estate, and therefore could not be taken into consideration in determining the fair market or intrinsic value of the real estate for taxation purposes.

A trial to the court without a jury resulted in a judgment denying the injunctive relief prayed for. We sustain the judgment.

In reference to the question that the increase of the assessment was made "without the introduction of any testimony," etc., the gravamen of the complaint here is that no sworn testimony was introduced at the hearing to raise the assessment, in violation of article 7212, R. S. 1925, which provides that witnesses "shall testify under oath" at hearings before boards of equalization seeking to increase or diminish the valuation of property for taxation purposes. But appellant, who appeared in person and by attorneys at the hearing, made no objection that witnesses giving testimony, including himself, were not sworn, and will be held to have waived the fact that witnesses were not sworn.

It is well settled in this state that, "a party, who permits without objection a witness to testify who has not been sworn, thereby waives all objection to his evidence based on the failure to swear him." Trammell v. Mount, 68 Tex. 211, 4 S. W. 377, 2 Am. St. Rep. 479; Cauble v. Key (Tex. Civ. App.) 256 S. W. 654.

We are also of the opinion that the trial court correctly concluded under the evidence in this case that the board of equalization did not arbitrarily and illegally raise appellant's assessment without evidence, but, to the contrary, it is shown that appellant had all the hearing on his contest that he demanded or was entitled to, and that the board of equalization, in honest exercise of intelligent judgment, increased the valuation of appellant's property, which action of the board is final under provision of article 7212, R. S. 1925; Allen v. School District (Tex. Civ. App.) 283 S. W. 674. It is undisputed that the board of equalization met in compliance with article 7206, R. S. 1925, and proceeded to perform the duties required of them by that statute. They heard sworn testimony, and had filed with them documentary evidence concerning the value of appellant's property, and determined that it was their duty to raise the assessment from $15,000 to $40,000. They notified appellant of their action, and cited him, as provided by article 7212, R. S. 1925, to appear on July 2, 1925, and show cause why the increase should not be made. He appeared on the day appointed with his several counsel, at which time an informal hearing of the matter was had. We will not undertake to state all that transpired at the hearing, but the following will suffice to amply support the trial court's judgment on the issues raised. One of appellant's attorneys testified as follows:

"At that time no witnesses were sworn. It was heard more or less informally, before the court; Mr. Stair and yourself (Mr. Richards) and I all made statements before the commissioners' court, and answered questions."

"I think I was there when the records were offered, showing what the total runs were for the year, on his and the other tracts of land in the county. As I remember it, the records were offered showing the total runs. As to the records also being offered showing monthly production, I think Mr. Stair offered his records, as well as the court offering like records. I mean by `offering' it, that they were there and that the different ones were read; as to whether they were offered in evidence or not, I am not saying. Anyway, they were all read to the court there. A number of questions were asked Mr. Stair by Judge Smith, and perhaps some by yourself. No objection was made, that I heard, by Mr. Stair or by any attorney representing him there, to answering those questions, on the ground that he was not sworn."

Another of appellant's attorneys testified:

"I was present when Mr. Stair's matter — the matter of his assessment — was taken up in conjunction, and at the same time Mr. Proctor's assessment was taken up. That is Mr. George Proctor. Both were taken up at the same time.

"I was present all the time that that court was considering and hearing testimony on those two items. I made a statement to the court as to the status of the property, the royalty, or oil rent, out of this land. When the matter of Mr. Stair's and Mr. Proctor's came up, they were both taken up informally about the same time. * * * I advised the court that our proposition was that royalty was not assessable at all; that we claimed under the oil and gas lease that had been executed by Mr. Stair long prior to 1925, that the title to the...