61 S.W.2d 853 | Tex. App. | 1933
Appellee, Royse City, is a municipal corporation incorporated under the general laws of the state. Appellant, W. H. Adams, owns four separate pieces of real estate within ap-pellee’s corporate limits. Appellant became delinquent in his city taxes for the year 1928; and appellee instituted this suit to recover said delinquent taxes, interest, and penalties, in the total sum of $172.97, and prayed for the foreclosure of its tax lien as well as for personal judgment in the above amount. A trial before the court without a jury resulted in judgment in favor of appellee, and appellant has duly perfected an appeal to this court.
At the request of appellant, the trial court made a supplemental finding of fact as follows: “In the eighth'finding of fact, filed in this cause on October 14, 1931, the court found that the evidence failed to show that a city ordinance was not passed by the City of Royse levying the balance of said taxes for the year 1928, and in addition to said finding, the court finds that there was no affirmative evidence that an ordinance was passed levying taxes for the year 1928, except the ordinance set out in the court’s seventh finding of fact, filed in this cause on October 14, 1931, and that which might be inferred from the recitals of the approved tax rolls for the year 1928.”
Appellee’s petition states a cause of action against appellant for the recovery of the amount sued for and for a foreclosure .of the tax lien on appellant’s property. The only portion of the petition which is attacked for insufficiency reads: “That the taxes, interest, penalties and costs charged and set out herein and itemized and set out in the said exhibit ‘A’ (the rendition certificate), and said delinquent tax record of said City, have accrued and have been taxed against the above described property in the maimer and form required by law; that the legal officers of said City, at Royse City, Texas, between the first day of March, 1928, and the 31st day of July, 192S, and prior to said date, levied said taxes in accordance with law and assessed same on the 14th day of June, 1928, and valued, rendered and reported the above described property of defendant, as required by law, for the respective amount of taxes, interest, penalties and costs. '* * * ”
It is claimed that the above allegation is insufficient, in that it does not show that the taxes were assessed by virtue of a levy by an ordinance adopted- at a regular session of the city council of the city with a quorum present, during the year 1928. Other alleged deficiencies are pointed out,which we do not find necessary to discuss. A similar contention was made in the ease of Lockhart v. City of Houston, 45 Tex. 323, and overruled. The ■petition alleges, in effect, that the legal officers of appellee, . between the 1st day of March, 1928, and the 31st day of July, 1928, and prior to said time, levied said taxes in accordance with law, assessed same on the 14th day of June, 1928, and had attached a certificate of assessment against appellant as an exhibit to the petition and made it a part, thereof. The law clearly and.specifically" prescribes the various steps to be taken by the governing body of a city to make a valid assessment of taxes within said city, and the phrase, “levied said taxes in accordance with law,” necessarily alleges all the legal steps to be taken for a valid assessment. This contention is overruled. ’
It is true, as contended by -appellant, that a city cannot make a valid assessment of taxes except by the passage of . an ordinance duly making the levy! Earle et al. v. City of Henrietta, 91 Tex. 391, 43 S. W. 15. Article 7326, Rev. St. 1925, in a provision applicable to this case, declares that: “All delinquent tax records of said, county in any
Prior to the year 1926, as shown by the court’s seventh finding of fact, an ordinance was passed by the city of Royse levying a tax of $.60 on the $100 valuation of all property in the city of Royse for each year thereafter, to take care of a bonded indebtedness. This levy was in force in the year 1928, as shown by said finding of fact. No subsequent -ordinance was necessary for the levy of this tax as long as this bonded indebtedness was outstanding, and no question can be made of appellee’s right to recover that portion of the taxes. City of Odessa v. Elliott (Tex. Com. App.) 58 S.W.(2d) 34.
Finding no reversible error, it is our opinion that the judgment of the lower court should be affirmed.
Affirmed.