Victory v. State

• Citation: 158 S.W.2d 760
• Decision Date: 14 January 1942
• Docket Number: No. 7682.,7682.
• Parties: VICTORY et al. v. STATE.
• Court: Supreme Court of Texas

158 S.W.2d 760

VICTORY et al. v. STATE.

No. 7682.

Supreme Court of Texas.

January 14, 1942.

Rehearing Denied February 11, 1942.

COPYRIGHT MATERIAL OMITTED

Error to Court of Civil Appeals of Eighth Supreme Judicial District; Upshur County.

Suit by the State against A. S. Victory and others to recover delinquent taxes, penalties, interest and costs, and to foreclose tax liens against realty. From a judgment in favor of the plaintiff, the defendants appealed to the Court of Civil Appeals. To review a judgment of the Court of Civil Appeals, 134 S.W.2d 477, correcting, reforming, and affirming, as corrected and reformed, the trial court's judgment, the defendants bring error.

Judgment of Court of Civil Appeals affirmed.

R. E. Minton, of Lufkin, for plaintiffs in error.

E. S. Pritchard and E. G. Aycock, both of Fort Worth, for defendant in error.

SLATTON, Commissioner.

The State of Texas recovered judgment for the sum of $14,168.01, taxes, penalties, interest and costs, and for foreclosure of tax liens against real property situated in Upshur County, belonging to A. S. Victory, Rose Victory and Birdie Victory Milliron. A. S. Victory et al. appealed to the Court of Civil Appeals. The Court of Civil Appeals corrected, reformed and affirmed the judgment. 134 S.W.2d 477. Writ of error of Victory et al. was granted by this court.

The taxes sought to be recovered were assessed against the fee and the one-eighth royalty interest for the years 1932, 1933, 1934, 1935 and 1936, except the taxes assessed against the fee for the year 1932 were paid and hence not in dispute.

In 1932 A. S. Victory, Rose Dorothy Victory and Birdie Victory jointly rendered three tracts of land, 250 acres out of the E. A. J. Evans Survey, 150 acres out of said Evans Survey and 44.14 acres out of the J. M. Pineda Survey, excepting therefrom the one-eighth royalty interest upon the theory that the same was personalty. For the year 1933 A. S. Victory, Birdie and Rose Dorothy Victory rendered two tracts, one of 250 acres out of the Evans Survey and one of 44.14 acres out of the Pineda Survey and Sidney and Rose Victory rendered one tract of 150 acres out of the Evans Survey. For the year 1934 the property was rendered in the same manner as it was rendered in 1933, except the rendition was made through Mr. R. E. Minton as agent for the owners. For the years 1935 and 1936 A. S. and Rose Victory separately rendered his or her undivided interest in five tracts, towit: 100, 50, 50 and 200 acres out of the E. A. J. Evans Survey and 44.14 acres out of the Pineda Survey. Birdie Victory Milliron rendered separately her undivided interest in three tracts of 200 and 50 acres out of the Evans Survey and 44.14 acres out of the Pineda Survey. In each of the years in dispute the board of equalization raised the value upon the property from that given by the owners. Other facts will be stated when necessary to an understanding of the questions raised.

The first assignment complains of the action of the lower courts in sustaining the taxes against the royalty interest for the year 1932 upon the theory of res judicata. In the prior suit plaintiffs in error brought an action in the district court of Upshur County (the same court in which the present suit was brought) against the taxing officials of Upshur County seeking to restrain the collection of taxes assessed against the royalty for the year 1932 and to thereafter restrain the assessment of such property for taxes. The decision of the case involved the validity of the assessment of the royalty interest in land for the year 1932. The assessment was upheld. Victory et al. v. Hinson, Tex.Civ.App., 71 S.W.2d 365, and Id., 129 Tex. 30, 102 S.W.2d 194. The trial court in the present case entertained the opinion that the prior suit was conclusive as to the validity of the tax assessment for the year 1932 upon the doctrine of res judicata even though the former judgment was not pleaded in bar of the instant suit. It is the established law of this state that courts may take notice of their own records and a former judgment may be held to be conclusive in a subsequent action when the record shows a judgment rendered in a cause involving the same subject matter between the same or practically the same parties, even though no plea of res adjudicata was interposed in the subsequent suit. Cochran County et al. v. Boyd et al., Tex.Civ.App., 26 S.W.2d 364, writ of error refused. It is also an accepted rule of law in this court that an appellate court cannot go to the record of another case for the purpose of ascertaining a fact not shown in the record of the case before it. Armendiaz v. De La Serna, 40 Tex. 291. But an appellate court may go to its prior decisions for the law that is applicable to or determinative of the question of law under review. State v. Savage, 105 Tex. 467, 151 S.W. 530, 533. The validity of the assessment for the year 1932 having been sustained by this court, we may take judicial notice of that decision as being "applicable to and determinative of the question of law under review."

It is contended that the trial court abused his judicial discretion in allowing the state to file trial amendments. The first trial amendment reduced the amount of taxes, interest and penalties which the state sought to recover. The second trial amendment consolidated the first tract of 200 acres and the second tract of 50 acres into one tract of 250 acres out of the Evans Survey, according to the method used in rendering the property by the owners for the years 1932, 1933 and 1934, and consolidated the third tract of 100 acres and the fourth tract of 50 acres out of the Evans Survey and the one tract in accordance with the renditions made as above stated. The third trial amendment simply grouped the taxes, penalties, interest and costs claimed to be due against each of said tracts for the respective years. These amendments raise no additional issues in the cause and could not possibly result in any injury to plaintiffs in error. The filing of a trial amendment is within the sound discretion of the trial court and unless the trial court clearly abuses that discretion no reversible error is shown. Lipscomb v. Perry, 100 Tex. 122, 96 S.W. 1069.

The contentions of plaintiffs in error as shown through the third assignment of error are submitted in two propositions. The first proposition relates to the assessment of the royalty interest for the year 1932. We have ruled that our prior decisions settled the validity of that assessment and for that reason we need not notice that phase of the case. The second proposition under the third assignment complains of the action of the lower courts in sustaining the taxes for the year 1933 because the tax assessor erroneously consolidated the 250 acre tract out of the Evans Survey belonging to Birdie, A. S. and Rose Victory with a tract of 150 acres out of the same survey belonging to A. S. and Rose Dorothy Victory and placed the property on the tax rolls in the name of J. T. Victory (the deceased predecessor in title of the present owners). The property was assessed by the owners for the years 1932, 1933 and 1934 as above stated, and in addition to the above assessment Birdie, A. S. and Rose Dorothy Victory rendered 44.14 acres out of the J. M. Pineda Survey. All of the property was placed upon the rendered roll. The taxing officials, the commissioners court and the board of equalization considered the tracts in the process of assessing, valuating and equalizing the taxes as the tracts were described and rendered by the owners, the only irregularity appearing in the entire process being that such property was placed on the rolls as the property of J. T. Victory and not in the name of the true owners, and the acreage out of the E. A. J. Evans Survey was listed on the rolls as 400 acres. Article 7171 of Vernon's Annotated Civil Statutes is as follows: "All real property subject to taxation shall be assessed to the owners thereof in the manner herein provided; but no assessment of real property shall be considered illegal by reason of the same not being listed or assessed in the name of the owner or owners thereof."

Under the above-quoted statute the erroneous listing of the property in the name of J. T. Victory as owner did not invalidate the assessment. Coleman v. Crowdus, Tex.Civ.App., 178 S.W. 585, writ refused; Taber v. State, 38 Tex.Civ.App. 235, 85 S.W. 835, writ refused; Denman et al. v. State, Tex.Civ.App., 85 S.W.2d 252. The owners, having rendered their property, could not be misled by the fact that it appeared upon the tax rolls in the name of J. T. Victory. Neither could they be injured in virtue of the tax assessor and collector having erroneously consolidated the 250 acre tract as rendered and the 150 acre tract as rendered, both out of the Evans Survey, into one tract of 400 acres. The taxing authorities separately valued and assessed the taxes upon the first tract of 250 acres out of the Evans Survey as such tract was rendered by its owners and separately valued and assessed the second tract of 150 acres out of the Evans Survey as it was rendered by the owners. The erroneous consolidation by the assessor and collector of the two tracts as rendered upon the tax rolls as one 400 acre tract could not have the legal effect of making the taxes due against one of the tracts and the lien securing the same extend to the other tract. Holt v. Wichita County Water Imp. Dist. No. 2, Tex.Com.App., 63 S.W.2d 369. The owners of the respective tracts had the right to tender their just proportionate part of the taxes (which could have been easily ascertained by a simple mathematical calculation) to the tax collector, and it would have been his official duty to issue an official tax receipt. Richey v. Moor, 112 Tex. 493, 249 S.W. 172.

It is insisted that the state was allowed foreclosure for taxes, interest, penalties and costs due against each of the three tracts of land when...