State v. Hoffman

• Decision Date: 20 December 1916
• Docket Number: (No. 5824.)
• Citation: 190 S.W. 1163
• Parties: STATE v. HOFFMAN.
• Court: Texas Court of Appeals

190 S.W. 1163

STATE v. HOFFMAN.

(No. 5824.)

Court of Civil Appeals of Texas. San Antonio.

December 20, 1916.

Rehearing Denied January 17, 1917.

Appeal from District Court, Duval County; V. W. Taylor, Judge.

Suit by the State of Texas against Charles Hoffman for taxes, together with interest, penalties, and costs. Judgment for the State for the taxes alone, and it appeals. Affirmed.

J. F. Clarkson, of San Diego, for the State. Dougherty & Dougherty and G. C. Robinson, all of Beeville, for appellee.

FLY, C. J.

This is a suit by appellant to recover the taxes due by appellee for the year 1913, together with interest, penalties, and costs. The cause was tried, without a jury, and judgment was rendered in favor of appellant for the taxes without penalties, interest, or costs.

On January 28, 1914, appellee tendered to the tax collector of Duval county all taxes due by him, but the collector refused to accept the taxes because a tax of 20 cents on the $100, levied for courthouse and jail purposes, was not tendered. The collection of the last-named tax was enjoined by the district court on January 30th, and an order issued directing the tax collector to accept the sums of money tendered by appellee and his coplaintiffs. The bond for injunction was filed on January 31st, and the writ issued, and on February 2, 1914, the amount of the taxes was again tendered, but refused because a 10 per cent. penalty was not tendered. Afterwards, on October 23, 1915, taxpayers, among the number being appellee, obtained an injunction restraining the county attorney from suing for the courthouse and jail tax. No appeal was taken from that order or the final order, and it is not contended in this case that the collection of the taxes should not have been enjoined. The full amount of the taxes demanded in this suit were tendered into court.

The contention of appellant is that the court erred in not rendering judgment in its favor for the penalty, interest, and costs. The taxes for the year 1913, alleged to amount to $2,140.34, less the courthouse and jail tax, were sued for, with penalties, interest, and costs. The taxes for 1913 could have been paid, without a penalty, at any time before February 1, 1914. On January 28, 1914, appellee tendered the collector of taxes for Duval county the identical taxes sued for in this case, but he refused to accept the same, and that tender protected appellee against all penalties, interest, and costs that might have been assessed against him for a failure to pay the taxes. By his first tender he had fully protected himself, and such penalty, interest, and costs could not again accrue. The writ of injunction was served on the tax collector on the afternoon of January 31, 1914, the same being Saturday, and on Monday, February 2d, the legal taxes were again tendered and again refused. It is not seriously contended that the first tender did not protect appellee against the imposition of penalties, interest, and costs; but it is insisted that, because the tax was not paid on the afternoon of January 31st, the penalties, interest, and costs again arose. The proposition amounts to the assumption that, if appe...