Heath v. City of Abilene

337 S.W.2d 180 | Tex. App. | 1960

PER CURIAM.

The City of Abilene and the Abilene Independent School District filed suit against Millard D. Heath for ad valorem taxes on his automobiles. The plaintiffs filed a motion for a summary judgment. The court granted the motion and entered judgment for the plaintiffs. Heath has appealed from such judgment contending the court erred in granting the motion for summary judgment because “a general issue of a material fact was raised”.

In the defendant’s opposing affidavit to the motion for a summary judgment, he alleged conclusions of fact and of law and alleged that the tax was unconstitutional under the state and federal constitutions. He also alleged in general terms that the plaintiffs had failed to tax many items of personal property in the same class as automobiles, such as sailboats and bank accounts.

The appellant concedes in his brief that the city has made out a prima facie case but contends this does not entitle them to a summary judgment “if the tax has been incorrectly assessed”. The summary judgment statute requires the opposing affidavits to he made on personal knowledge “and shall show affirmatively that the affiant is competent to testify to the matters staled therein”. Rules of Civil Procedure, rule 166-A, Section (e). Appellant’s opposing affidavit only sets forth conclusions and deductions and did not state facts showing that the tax on his automobiles had been incorrectly assessed. See Pentecost v. Travelers Insurance Co., Tex.Civ.App., 238 S.W.2d 978.

Judgment affirmed.