Wilson v. Carter

• Decision Date: 01 November 1913
• Citation: 161 S.W. 411
• Parties: WILSON et al. v. CARTER.
• Court: Texas Court of Appeals

161 S.W. 411

WILSON et al. v. CARTER.

Court of Civil Appeals of Texas. Galveston.

November 1, 1913.

Appeal from District Court, Liberty County; L. B. Hightower, Judge.

Suit by Mark M. Carter against Charles Wilson and others. From an order appointing a receiver for the City of Dayton in Liberty County, defendants appeal. Affirmed.

Marshall & Harrison, of Liberty, for appellants. Carter & Wilson, of Dayton, for appellee.

McMEANS, J.

This is an appeal from an order of the district judge of the Ninth judicial district, made in vacation, appointing a receiver for the city of Dayton, in Liberty county. The appointment was made on the petition of Mark M. Carter, the appellee, who alleged in substance that the city of Dayton had been duly incorporated on the 17th day of April, 1911, under chapter 11, tit. 18, Revised Statutes of Texas, as containing more than 1,000 and less than 2,000 inhabitants, and that the corporation was thereafter abolished by an election duly held on the 29th of August, 1911, and that during the existence of the corporation it incurred debts, and that he was its creditor to the amount of $302.25. Charles Wilson and W. B. Jones, by permission of the court, intervened and resisted the appointment of a receiver, pleading that there never was a valid incorporation of the so-called city of Dayton for the reason that the city, as attempted to be incorporated, included a superficial area of more than two square miles, and further that under the facts the city of Dayton was never a de facto corporation and had no authority to incur indebtedness.

On the issues thus joined the following facts were proved: That on the 10th day of February, 1911, an election was held by qualified voters in the town of Dayton, to determine whether or not the town of Dayton should be incorporated under title 11, c. 18, of the Revised Statutes of the State of Texas, as a city having more than 1,000 and less than 2,000 inhabitants. All prerequisites and formalities were duly and legally complied with save and except that the proposed area or territory of the proposed city embraced and included 400 acres in excess of two square miles. That all qualified voters living in said territory participated in said election. That thereafter the city council ascertained that more than two square miles was included within its limits, and by an ordinance or resolution passed reduced the area or territory of the said city of Dayton to two square miles. And that thereafter the said city of Dayton, acting through its duly elected and qualified city officers, proceeded to exercise the functions of a city under title 18, c. 11, of the Revised Statutes of the State of Texas, until the 29th day of August, 1911, on which date an election was duly held, having been ordered by the county judge of Liberty county, Tex., for the purpose of abolishing said city of Dayton, and the qualified voters of the said city of Dayton, by a majority of votes abolished said city of Dayton as an incorporated city under title 18, c. 11, of the Revised Statutes of the State of Texas, and upon the result of said election having been duly declared by the county judge of Liberty county, Tex., the said city of Dayton ceased to exercise any functions of an incorporated city. The evidence further showed that the applicant, Mark M. Carter, is a creditor of the said city of Dayton, in the sum of $302.25, and that there is approximately $1,100 indebtedness due and owing by said city of Dayton, incorporated as aforesaid, which includes the $302.25 due the applicant, Mark M. Carter. The said indebtedness was contracted during the time said city of Dayton was operating and acting as a city. It is further proved that the interveners herein, Charles Wilson and W. B. Jones, are residents of the original incorporation and the reduced incorporation of the said city of Dayton, and owned real estate within the limits of the original incorporation and the reduced incorporation subject to taxation, and that they are qualified voters under the Constitution and laws of the state of Texas.

We will not consider appellants' assignments of error in detail.

The city sought to be incorporated had a population of less than 2,000 inhabitants and included a territory of more than two square miles; and the incorporation of this area was not authorized by article 386a, Sayles' Civil Statutes. After the attempted incorporation, the city council of Dayton caused a survey to be made, and, upon ascertaining that the area included 400 acres more than two square miles, attempted to reduce the area by eliminating therefrom the 400 acres improperly included. This was not authorized by law. Article 386b, Sayles' Civil Statut...