City of Corsicana v. Kerr , 89 Tex. 461 ( 1896 )

This suit was commenced in the District Court of Navarro County by C.P. Kerr and a number of other persons to enjoin the City of Corsicana, a municipal corporation organized under the general laws of the State of Texas, Jenk Evans, mayor, and J.H. Wood, W.W. Ballew and J.R. Goodman, the Pavement Committee, and aldermen of the said city, from selling certain lots set forth and described in the petition, for the payment of assessments made thereon by the City of Corsicana for paving streets upon which the said lots abut. The writ of injunction was granted as prayed for, and upon a trial before the District Court the said injunction was dissolved and judgment was entered in favor of the City of Corsicana against each of the plaintiffs, for the amount assessed against each lot, and foreclosing the lien claimed by the city upon each of said lots, directing that an order of sale issue to the sheriff or any constable of Navarro County, commanding him to sell each of the lots for the amount adjudged as a lien thereon and, in case any lot should not sell for sufficient to pay the amount adjudged against it, the balance be made out of the property of the owner as on execution.

From this judgment the plaintiffs in the court below appealed to the Court of Civil Appeals, which reversed the judgment of the District Court and remanded the cause for further trial.

The City of Corsicana made application to this court for writ of error under section 8 of article 941, Revised Statutes, alleging that the decision of the Court of Civil Appeals practically settles the case. The writ was granted under the said article of the Revised Statutes as matter of course, the party being entitled to the writ upon such allegation.

The evidence introduced in the District Court showed that at the time the City of Corsicana determined to make the improvement upon the streets in question a committee was appointed, as required, to make the assessment of the cost of the work in accordance with articles 474 and 475 of the Revised Statutes, but did not show that the committee made the assessment, but that after the work was done an assessment was made. The City of Corsicana upon the trial in the District Court offered to prove by parol evidence that the committee did make an assessment of the cost of the work against each lot as required by law and that said committee made a report thereof in writing which was deposited with the secretary of the city, but did not offer to show that the report so made was accepted and approved by the city council. The testimony thus offered was excluded by the District Court, to which ruling the city excepted, saved a bill of exceptions in due form, and presented the ruling by cross assignment in the Court of Civil Appeals.

The Court of Civil Appeals held that the evidence offered was properly excluded and that the assessment required by the law to be made, the making of the report by the committee, and its acceptance and approval by the city council, were conditions precedent to the letting of a contract for the work, and that, this not having been done in this case, the assessment made upon the property of the plaintiffs was void, constituted no ground for a recovery by the city, and furnished no authority for the city to sell the property of the plaintiffs. We think that the Court of Civil Appeals properly construed the articles referred to, and we affirm the judgment of that court in reversing the judgment of the District Court. We deem it unnecessary to add anything to the opinion of the court in this case. In accordance with the statute we proceed to enter judgment as follows:

It is ordered, that the defendants in error have judgment against the City of Corsicana perpetuating the injunction granted by the Judge of the District Court enjoining the said city, its officers and committee, from advertising, selling or making deeds to any of the lots named under or by virtue of the said assessments, and that the defendants in error each recover of the said City of Corsicana all costs in this behalf expended in each and all the courts; that this opinion and the judgment of this court be certified to the District Court of Navarro County for observance.

Affirmed and judgment rendered.