Travis County Water Control and Imp. Dist. No. 12 v. McMillen
| Decision Date | 16 November 1966 |
| Docket Number | No. A-11258,A-11258 |
| Parties | TRAVIS COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. 12, Petitioner, v. John Lee McMILLEN, Respondent. |
| Court | Texas Supreme Court |
John Davenport, Austin, for petitioner.
James R. Sloan, Austin, for respondent.
This is an appeal from a summary judgment rendered in a suit for delinquent taxes in favor of the respondent, John Lee McMillen. The Court of Civil Appeals has affirmed. 397 S.W.2d 540. We reverse the judgment of the Court of Civil Appeals and remand the cause to the district court for a trial.
Petitioner Water District sued respondent McMillen to recover ad valorem taxes for 1960 through 1963 in the principal sum of $2576.00 alleged to be owing it by reason of respondent's ownership of 342 acres of land lying within the District.
Respondent moved for summary judgment, denying that his property was ever included within the District. In his supporting affidavit he stated that he had examined the records of the Water District and knew that the 342 acres in question were not included in the District upon its original organization; he did not find nor has he been shown any petition for inclusion subsequent to its formation, nor has he or anyone else filed any such petition since he acquired ownership of the property in question. He further stated that he found no minutes reflecting such a petition, or any action by the Board of Directors to include said land within the boundaries of the District, and that he has examined the records of the County Clerk of Travis County, Texas, and found no filing of any petition to add such land to the District.
Petitioner filed two controverting affidavits, one by Otto Olle, one of the grantors of the property in question to respondent John Lee McMillen, the other by Cal Williford, a former member of the board of directors of the Water District. Olle stated that, prior to conveying said tract of land to respondent, he filed a petition for inclusion of the tract in the district with the board of directors, said petition describing the tract of land by metes and bounds. Williford stated that at the time the petition was presented the board of directors found that it would be to the advantage of the District to grant, and did in fact grant said petition. He further stated that the petition was among the minutes of the board of directors in January of 1960 when all of such records were turned over to respondent John Lee McMillen, the newly elected secretary of said District.
Petitioner contends that the two affidavits presented to controvert respondent's motion for summary judgment raised a fact issue as to whether a petition for inclusion within the District had been filed with and acted upon favorably by the Board. The Court of Civil Appeals held to the contrary for two reasons: First, the affidavits of Olle and Williford are secondary evidence of the contents of the purported petition and minutes of the board of directors, which matters are directly in issue, and therefore inadmissible under the best evidence rule; second, even if the affidavits are admissible they are insufficient to show a substantial compliance with Vernon's Tex.Civ.Stat.Ann. Art. 7880, Sec. 75, which sets forth the requirements for adding land to a water district.
Texas Rules of Civil Procedure, rule 166-A(e) requires that affidavits supporting or opposing motions for summary judgment set forth such facts as would be admissible in evidence. Secondary evidence of the contents of a document directly in issue is inadmissible unless nonproduction of the original document is accounted for. Hill v. Taylor, 77 Tex. 295, 14 S.W. 366 (1890); Coleman v. Smith, 55 Tex. 254 (1881); Dikes v. Miller, 24 Tex. 417 (1859); Guadalupe & San Antonio Rivers Stock Ass'n v. West, 76 Tex. 461, 13 S.W. 307 (1890).
The production of the original document is excused when it is established to the satisfaction of the court that the document in question has been lost or destroyed. Schultz v. Shatto, 150 Tex. 130, 237 S.W.2d 609 (1951); Hotman v. State, 217 S.W.2d 890 (Tex.Civ.App.1949, no writ). Loss or destruction may be established by proof of search for the document and inability to secure it. Clifton v. Lilley, 12 Tex. 130 (1854); Ruby v. Von Volkenberg, 72 Tex. 459, 10 S.W. 514 (1889); De Garcia v. Johnson, 265 S.W.2d 692 (Tex.Civ.App.1954, writ ref'd). Where petitioner's affidavits state that a petition was filed, granted and among the minutes...
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