48 S.W. 213 | Tex. App. | 1898
Lead Opinion
The appellee in this case by its pleadings endeavored to fix the liability of appellant for certain bonded indebtedness of appellee that was outstanding in 1887, and for certain other debts, when appellant and the counties of Buchel, Foley, and Jeff Davis were created out of territory belonging to Presidio County. The demand for a pro rata of the bonded indebtedness was, however, abandoned, and at the trial nothing was sought but to fix the liability of appellant for the pro rata amounts due by Buchel and Foley counties, on floating indebtedness that accrued prior to the formation of the counties aforesaid in 1887, and which had been paid by appellee. This cause was tried by the court and the following judgment was rendered for appellee:
"On this the 31st day of March, 1898, came on to be heard the above styled and numbered cause and the plaintiff and defendant appeared and announced ready for trial. The plaintiff made known to the court that it would no longer prosecute the suit as to the bonded indebtedness and as to all other indebtedness existing March 15, 1887, and not paid by Presidio County and still unpaid and outstanding, and asked that as to said indebtedness said cause be dismissed without prejudice. It is therefore ordered and adjudged, that as to the bonded indebtedness outstanding and unpaid indebtedness mentioned in plaintiff's petition the same is dismissed from this case without prejudice. No jury having been demanded, the matters at issue as well those of fact as of law were submitted to the court, and after hearing the pleadings, the evidence, and argument of counsel, the court finds as follows:
"1. The correct total value of property assessed on the rolls of Presidio County for the year 1887 to be $2,382,050.
"2. The correct total value of property assessed on the tax rolls of Brewster County for the year 1887, $1,688,049.
"3. The correct total value of property assessed on the tax rolls of Jeff Davis County for the year 1887 to be $1,544,530.
"4 The correct total value of property assessed on the tax rolls of Buchel County assessed by the Comptroller and by Brewster County for the year 1887 to be $1,257,226.
"5. The correct total value of the property of Foley assessed on the tax rolls of said county by the Comptroller and by Brewster County for the year 1887 to be $781,459.
"6. That on the 2d day of February, A.D. 1887, and the 15th day of March, 1887, at the time the counties of Jeff Davis, Brewster, Buchel, and Foley were created out of the territory of Presidio County, there was an outstanding unpaid legal liability, indebtedness owed by Presidio County as said county existed before said date, amounting to the sum of $29,394.03.
"7. That since the said 15th day of March, 1887, the county of Presidio as the same exists since said date has alone paid and discharged of said liabilities and indebtedness the sum of $23,796.54.
"8. That the proportion of Foley County of the liabilities and legal indebtedness of Presidio County as it existed at the date of the creation *640 of Foley County for which Foley County is bound to pay, according to the proportionate value of the property in the excised territory of Foley County to the value of the property remaining in Presidio County, amounts to the sum of $2429.73.
"9. That the proportion of Buchel County of the liabilities and legal indebtedness of Presidio County as it existed at the date of the creation of Buchel County for which Buchel County is bound to pay, according to the proportionate value of the property in the excised territory of Buchel County to the value of the property remaining in Presidio County, amounts to the sum of $3909.
"10. That the following was the territory of the county of Buchel as it existed at the time of its creation in 1887: Beginning at the northeast corner of Brewster County (as it existed under the Act of February, 1887, by which said county of Brewster was created), on the Presidio and Pecos County line; thence south with the east line of Brewster County six miles; thence east to the Rio Grande River; thence down said river with its meanders to the Pecos County line; thence in a northwesterly direction along said Pecos County line to the place of beginning.
"11. That the following was the territory of the county of Foley as it existed at the time of its creation: Beginning at the southwest corner of Brewster (as the same existed at the time of its creation by the Act of February 2, 1887); thence east along the south line of said county thirty miles to the southeast corner of said Brewster County; thence north along the east boundary line of Buchel County; thence east along the south line of Buchel County to the Rio Grande River; thence up the Rio Grande River with its meanders to a point due south of the beginning; thence north to the place of beginning.
"12. That by the Act of the Legislature the counties of Buchel and Foley have been disorganized and the territory of said two unorganized counties included and made a part of said Brewster County. It is therefore ordered, adjudged, and decreed by the court that said plaintiff the county of Presidio do have and recover of and from the defendant Brewster County $6338.73, with interest on said amount from this date at 6 per cent per annum, to be collected and paid by said defendant by levy of a special tax on all property in that part of the territory of defendant formerly included in the said Buchel and Foley counties, and now a part of said defendant Brewster County in the following proportions: there shall be levied and collected on all the property in the territory formerly in said county of Buchel a special tax sufficient to pay of said amount the sum of $3909.
"There shall be levied and collected on all the property in the territory formerly in said Foley County a special tax sufficient to pay the sum of $2429.73. It is therefore further ordered, adjudged, and decreed that the Commissioners Court of said defendant Brewster County, composed of said defendant county judge and commissioners and collector of said county, levy a special tax on all the property in that part of the territory of said defendant formerly constituting Buchel County sufficient *641 to pay said sum $3909, and if the first levy be insufficient, then to make said levy annually until the amounts of $3909 is paid and satisfied. It is further ordered, adjudged, and decreed that the Commissioners Court, composed of said county judge and the commissioners of said county of said defendant Brewster County, levy and collect a special tax on all the property in that part of the territory of said defendant county formerly constituting Foley County sufficient to pay said sum of $2429.73, and if the first levy be insufficient, then to make levy annually until said amount of $2429.73 is paid and satisfied. That when said special taxes are collected by defendant the same shall be paid over to said plaintiff. The plaintiff shall recover of and from the defendant its costs in this behalf incurred."
The facts stated in the judgment are established by the record, and are adopted by this court as its conclusions of fact.
The first assignment sets up error in the action of the court in overruling appellant's plea to the jurisdiction, which claim is based on article 1194, section 19, of the Revised Statutes, and which is to the effect that "suits against any county shall be commenced in some court of competent jurisdiction within such county." It is admitted by appellant that article 764, in which it is provided that a parent county may sue a newly created county out of excised territory for its proportional share of the liabilities of the old county incurred before the new was formed, either in the old county or the new, is applicable to this case, but it is insisted that the right to sue in the parent county has been lost by reason of the fact that suits had been brought in Brewster County against that county and Buchel and Foley counties, the latter two being unorganized, and had been dismissed. It is provided, in said article 764, that its provisions "shall not apply to any county the claims against which have already been placed before courts having jurisdiction thereof and tried or dismissed under laws that were at such time constitutional." As before stated, this suit was prosecuted to recover the proportional share of the liabilities of the parent county that rested upon the territory formerly known as Buchel and Foley counties. At the time that the suits were brought against Buchel and Foley counties, they had no legal corporate existence, and were incapable of suing or being sued. It is true that they were attached to Brewster County for judicial purposes, but this was merely to provide a means for the administration of laws and the protection of the citizens in the unorganized territory, and did not authorize suits against them. There was no one upon whom citation could be lawfully served, no authority being given for having such unorganized counties cited through the officers of the county to which they were attached for judicial purposes. The statute has not made any provision for suits against an unorganized county, and in the absence of such provision we are constrained to hold that such suits can not be entertained. The suits in Brewster County against Buchel and Foley counties had no standing, and at no time from 1887 until 1897, when the two counties were made *642
a part of Brewster County, was there any judicial tribunal before which Presidio County could appear and present its demand for the sums due by such excised portions of its territory. It is true that Brewster County had the authority to levy and collect such taxes from the inhabitants of the unorganized counties as were necessary to pay for their proportional part of the expenses of the county and State governments, but there is no law authorizing the organized county to pass upon claims against the excised territory in favor of the parent county, or to levy taxes to pay off any such claims. As said by the Supreme Court in Cattle Company v. Faught,
It is contended by appellant that the claim of appellee should not have been entertained because it had not been presented to and rejected by the Commissioners Court of Brewster County. This point has been conclusively settled against appellant by the Supreme Court. Mills County v. Lampasas County,
The judgment will be affirmed.
Affirmed.
Addendum
It is contended in this motion, by appellant's counsel, that we erred in holding that appellee's action was not barred by the statute of limitations; and also in holding that the demand sued upon had not theretofore been placed before a court having jurisdiction thereof, and dismissed under laws that were at such time constitutional. The ground upon which we based both holdings is that from the time Buchel and Foley counties were created up to the time they were abolished, and the territory which composed them incorporated into Brewster County, no action could have been brought to establish the demand sued upon against either Buchel or Foley County. Our opinion grounded on this reason was not, as the motion would imply, hastily formed, but reached after giving the facts of the case, the statutes, and opinions of the Supreme Court deemed applicable by us, careful, patient, and mature consideration, and we thought we had plenty of time, and had given to it a mature consideration of the questions involved in this case. With no other purpose in view than to correct our former opinion, if it should be by us deemed erroneous, we have, with the assistance of the argument of counsel, embodied in this motion, again thoroughly considered the questions involved, and have found no reason for changing our opinion as formerly expressed upon any of them. Was it necessary, after Buchel and Foley counties were created, for Presidio County to bring an action to establish the demand sued upon, and, if necessary, against whom should such an action have been brought? In Mills County v. Lampasas County,
Having found that it was necessary for Presidio County to bring *645
action to establish its demand against Buchel and Foley counties, the next question is against whom should it have brought such action. One against whom a debt is sought to be established is ordinarily a necessary party to a suit for its establishment, and, if he has no representatives authorized to appear and defend such suit, he is a necessary party before judgment can be obtained. The law did not, while Buchel and Foley counties were unorganized, and attached to Brewster, give the last named county authority to appear and defend a suit brought against either of such unorganized counties. Nor was any one given authority to represent them in such a suit. Therefore it seems clear to us that to fix such demand by judgment the suit therefor would necessarily have to be brought against Buchel and Foley counties. But they were unorganized, and were therefore not bodies corporate, invested with rights and powers, and charged with responsibilities and duties, and had no legal existence (Reeves County v. Pecos County,
Overruled.
Writ of error refused.
