author: BUCK, J.

text:
    TEXAS BITULITHIC CO. et al. v. HENRY.
    (No. 8661.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 9, 1917.
    On Motion for Rehearing, June 30, 1917.)
    1. Municipal Coepoeations <&wkey;514(2) — Public Impeovbments — Reassessment—Po wee.
    Under Ft. Worth Charter, c. 14, § 13, providing that errors in levying assessments may be corrected by reassessment, the city has right to reassess property to correct errors of description or in name of owner.
    2. Municipal Oorporiation/s <&wkey;564^-PUB-lic Improvements — Enforcement of Assessment — Accrual of Action.
    Since right of city to enforce assessment for paving depends on performance of steps required by law and charter to fix lien against property and personal judgment against owner, cause of action for that purpose does not accrue till those necessary steps are taken.
    3. Municipal Coepoeations &wkey;j514(9) — Public Improvements — Reassessment — Time for Making.
    Where no period of limitations has been fixed either by charter or law, city may make reassessment if it discovers the error in its first assessment and improvement certificate within a reasonable time.
    4. Municipal Coepoeations &wkey;>514(9) — Public -Improvements — Reassessments—1Time for Making.
    In the absence of proof as to the reasons for delay of almost five years in discovering defective description in first assessment and having reassessment made, such delay held not unreasonable.
    On Motion for Rehearing.
    5. Municipal Corporations <&wkey;514(ll) — Public Improvements — Reassessment — Procedure.
    A reassessment proceeding held to constitute substantial compliance with the provisions of Ft. Worth Charter, c. 14, § 13, and rules and regulations relating to reassessment adopted thereunder by ordinance of board of commissioners, and that the omission .in the notice to designate the place and hour of meeting of board for purpose of making reassessment would be supplied by the city charter and ordinance, providing the place and hour of meetings of board of commissioners.
    6. Municipal Coepoeations <&wkey;514(ll)' — Public Improvements — Reassessment-Procedure — Waiver of Irregularities .
    Any possible irregularity in a reassessment proceeding was waived, where it was stipulated between the parties that the original assessment was invalid because the description and the owner’s name were incorrect, and that the failure to have it judicially declared invalid was waived, and the resolution of the board of commissioners recited the necessity for the reassessment of the property in question in the name of the plaintiff, and the owner in her written contest and protest before the board of commissioners and in her petition filed in court below failed to present any question as to the regularity of the proceedings.
    7. Municipal Corporations <&wkey;514(12) — Public Improvements — Reassessments — Time for Making.
    In suit to review action of board of commissioners in levying a reassessment against plaintiff and her property, burden was on plaintiff to show that defendant had been guilty of unreasonable delay in having reassessment made.
    8. Municipal Corporations <&wkey;514(2) — Public Improvements — Reassessment — Time for Making.
    The fact that real owner was made one of parties defendant in the original suit on an improvement certificate against party in whose name property was originally assessed is not sufficient to show that city or contractor knew at that time who was true owner of property, where reason for making her party is not shown.
    Appeal from District Court, Tarrant County; R. B. Young, Judge.
    Action by Mrs. Maude J. Henry against the Texas Bitulithic Company, City of Fort Worth, and others. From a judgment in favor of plaintiff, defendants named appeal.
    Reversed and remanded.
    W. Wilkinson, of Ft. Worth, L. M. Dabney, of Dallas, and T. A. Altman, of Ft. Worth, for appellants. R. G. Johnson and Wad© & Smith, all of Ft. Worth, for appellee.
   BUCK, J.

The appellee herein filed this suit in the Forty-Eighth district court of Tarrant county, Tex., for a review of the action of the board of commissioners of the city of Ft. Worth in levying a reassessment against the appellee and her property for paving the street in front of her property, and creating a lien on said property for the paving done. The original assessment was made February 15, 1910, and the reassessment was made January 26, 1915. In the hearing before the board of commissioners on the question of the right of the city to make said reassessment, and in the trial court, the appellee interposed the pleas of 'the two-year and four-year statutes of limitation. The trial court sustained such pleas, and the defendant city and the Texas Bitu-lithic Company have appealed.

The evidence shows that under the first assessment there was a defective description of the property sought to be charged, and •that the title to said property was alleged to be in A. L. Jackson, instead of in the appel-lee herein, the rightful owner. Suit was filed in the Seventeenth district court of Tar-rant county on October 14, 1912, by the city, for the benefit of the Texas Bitulithie Company, on the improvement certificate issued under the first assessment. This suit was later consolidated with the suit in the Forty-Eighth district court, and the consolidated suit took the number and style of the suit ■originally filed by appellee in the latter court. The following agreement was signed by the attorneys representing the several parties, to wit:

“It is hereby expressly agreed between the parties hereto that the original assessment herein was invalid and unenforceable for the reasons that same was assessed against A. L. Jackson, when the property was owned by Mrs. Maude J. Henry, and the description of the property was bad, and that the failure to have said original assessment judicially determined to be invalid and unenforceable before a reassessment was made is hereby waived and the plaintiff makes no defense on that ground.”

This agreement was made, evidently, in view of section 13, e. 14, of the Charter of the City of Ft. Worth, which reads as follows:

“If any error shall occur in any proceeding .provided for by this article, it shall be the duty ■of the board of commissioners to correct the same, and whenever it shall be finally determined in any suit that any assessment or charge of liability' against any property, or its owner, is invalid or unenforceable, lor any reason, then it shall be the duty of said board at once to reassess against said property and its owner such proportion of the cost of improvement as ■may be proper, lawful and just, and said board shall have the power and it shall be its duty by ordinance or resolution to adopt such rules and regulations for a hearing to said owners before the reassessment as may be necessary legally to bind such owners and property by reassessment, and shall have power to adopt all ■other rules and regulations requisite to such reassessment, or fixing a change of personal liability against such owners.”

The 'fact that appellee, through her attorney, did appear before the board of commissioners at the time the question of reassessment was under consideration, and filed a lengthy protest in writing against such reassessment, would eliminate any defense ■of the absence of notice. In that proceeding, as well as in the trial court and here, the insistence of appellee is primarily directed in support of its plea of limitation. It was claimed there,' and is claimed here, that more than four years had elapsed between the first and the second assessment, and that therefore any right of action the city had against the property owner or her property was barred by either the two-year or four-year statute of limitation. We are of the opinion that neither the two-year nor the four-year statute of limitation would neebs-sarily bar the appellant’s right to recover in this suit.

While in O’Connor v. Koch et al., 9 Tex. Civ. App. 586, 29 S. W. 400, and Glover v. Storrie, 18 Tex. Civ. App. 6, 43 S. W. 1035, the Court of Appeals for the First District held that a cause of action on an improvement certificate issued was barred by the two-year statute, and as in the latter case a writ of error was denied by the Supreme Court, such holding should probably be deemed to be expressive of the views of the Supreme Court with reference to the question involved, still it is not claimed that even two years had elapsed between the reassessment or the issuance of the second certificate which forms the basis for appellant’s cause of action in this suit, and the amendment of appellants which set up the issuance of the second certificate. The right of a city, having a charter provision like the one above quoted, to reassess property in order to correct errors of description or errors in the name of the owner, is sustained in the cases of Gallahar v. Whitley, 190 S. W. 757, writ denied; Jones v. City of Houston, 188 S. W. 688; Cole v. Forto, 155 S. W. 350. The right of appellants herein to recover a judgment depends, not alone upon the paving in front of appellee’s property having been completed in compliance with the contract between the contractor and the city, but also upon the performance of the various steps required by the law and charter to fix a lien against the property, and a personal judgment against the owner. The liability of appellee, if at all, is created by the action of the city under its charter. Glover v. Storrie, supra. Until the necessary steps had been taken, no cause of action against the appellee existed. No period of limitation has been fixed either by the charter or by the law as to the time in which the reassessment provided for in the charter may be made. It then becomes a question of whether the city, within a reasonable time, all the circumstances considered, discovered the error in its first assessment and improvement certificate and caused a reassessment to be made.

2 Page & Jones on Taxation by Assessment, p. 1852, § 1168, says:

“The time at which a statute of limitations begins to run is determined by statute. Limitations does not ordinarily run until a valid assessment has been levied. The period of limitations does not run, in the absence of express statutory provisions to the contrary, until the public corporation has the right to proceed to enforce the assessment. Under some statutes, limitations run only from the time that the work is accepted. If there has been a delay which apparently is the fault of the city, such delay cannot prevent the contractor from enforcing the assessment against the property owner.” Kraut v. City of Dayton (Ky.) 97 S. W. 1101; Breath v. City of Galveston, 92 Tex. 454, 49 S. W. 575.

In the absence of a specific statute applicable thereto, there is no arbitrary period of limitations within which a reassessment must be levied. Page & Jones, supra, § 972. There it is stated:

“It has been said to be sufficient if the reassessment is levied within a reasonable time. A long delay, owing to protracted litigation over the validity of the original assessment, does not prevent a reassessment, or the issuing of new tax bills. Even if no statutory period of limitations exists, a delay of eleven years in levying a reassessment after the original assessment is held invalid is excessive, and a reassessment cannot then be levied." Wood v. Strother, 70 Cal. 545, 18 Pac. 766, 9 Am. St. Rep. 249; Dollar Savings Bank v. Ridge, 183 Mo. 506, 82 S. W. 56; Transfer Ry. Co. v. District Court of Ramsey County, 68 Minn. 242, 71 N. W. 27; Flewellin v. Proetzel, 80 Tex. 191, 15 S. W. 1043.

Also, as in point, might be cited the cases of Cody v. Town of Cicero, 203 Ill. 322, 67 N. E. 859; Kline v. Board, 152 Ind. 321, 51 N. E. 476; Murray v. City of Chicago, 175 Ill. 340, 51 N. E. 654. While in these last three cases special reference was made to the statutes of the states in which the decisions were rendered, yet they discuss and announce the General rule as above indicated.

There is no evidence in the record as to the cause or causes of the delay in discovering the defective description, etc., in the first assessment and improvement certificate and in not having a reassessment made, and, in the absence of proof as to the reasons for the delay, we do not feel justified in concluding that a delay of the period here shown was an unreasonable one, and that the city had been guilty of laches in not discovering the error before it did. While we recognize the rule laid down in 25 Oyc. 1198, and approved in Smith v. Wise Co., 187 S. W. 705 (writ denied), to the effect that, “where plaintiff’s right of action depends upon some act to be performed by him preliminary to commencing suit, and he is under no restraint or disability in the performance of such act, he cannot suspend indefinitely the running of the statute of limitations by delaying the perform-, anee of the preliminary act; if the time for such performance is not definitely fixed, a reasonable time, but that only, will be allowed therefor” — still, as before stated, we are not prepared, under the circumstances, to hold, as a matter of law, that the delay shown was an unreasonable one. The evidence on this issue not having been developed, in our opinion the judgment of the trial court should be reversed and the cause remanded, and it is so. ordered.

Reversed and remanded.

On Motion for Rehearing.

Two grounds are urged by appellee in her motion for rehearing why the order and judgment of reversal should be set aside and the judgment of the trial court affirmed, to wit:

(1) That the city of Ft. Worth failed to follow the necessary procedure to fix a lien under a reassessment proceeding.

(2) That this court erred in holding that the record failed to support the conclusion that an unreasonable delay had been shown in making such reassessment after appellant had discovered, or by the exercise of reasonable diligence should have discovered, the error in the original assessment.

We will .discuss these two grounds urged in the order in which they are presented.

1. Pursuant to the authority given in the city’s charter (chapter 14, § 13), quoted in the original opinion, the city commissioners by ordinance (chapter 4, Revised Ordinances) provided the rules and regulations to be followed and observed to establish a legal reassessment. Said ordinance provides that: (a) Before any such reassessment shall be made the board of commissioners shall by resolution declare the necessity therefor and the name or the names of the owners affected thereby; and shall give a description sufficiently identifying the property to be reassessed, and the nature of the defect or irregularity to be corrected; (b) that said resolution shall set a time and place for a hearing to be given the owner, and provide for notice to be given as in case of original assessment; (c) that the hearing shall be had, and that any objections to such reassessment shall be given in writing, etc.

It is shown in the statement of .facts that a petition was filed by the Texas Bitulithic Company with the board of commissioners asking for reassessment of certain property described, including the lot under' consideration, and setting up that there was an error in the description of this lot and in the name of the owner, and furnishing a correct description and the correct name of the owner, appellee here. This petition was granted by the board of commissioners, and the city engineer was ordered to make a correct report of such property tó be reassessed, together with the correct names of owners. The engineer’s report, giving such correct information as to description of the property and the names of owners, with estimate of cost of paving per front foot, was approved by the board in its resolution, and notice of hearing was given; said resolution reciting “said hearing to be held before the board of' commissioners of the city of Ft. Worth, on the 19th day of January, 1915.” This notice is shown to have been published in the Star-Telegram, a newspaper of general circulation published in Ft. Worth, for five days ending January 11, 1915. It is further shown that a hearing was had in pursuance of the said notice, and that appellee by her attorney appeared before the board and contested in writing such proposed reassessment as to appellee’s property, and that thereafter the reassessment as to appellee and her property was by ordinance made. We are of the opinion that under the showing made the reassessment proceeding constituted a legal and substantial compliance with the provisions of the charter and tne ordinances relating to reassessment, anu that no successful attack has been made against the same. The charter and ordinance of the city provide that the meetings of the board of commissioners shall be held at the city hall, unless otherwise designated, and at 9 o’clock a. m. Hence the omission to designate the place of meeting other than at Et. Worth, and the failure to designate the hour of same, would be supplied by such charter provision and ordinance.

Moreover, we think that in view of the written agreement between counsel, quoted in the original opinion, as to the existence of the defects as to description and the name of the owner, and in view of the fact that such error of name was called to the attention of the board of commissioners in the petition for reassessment filed by the Bitulithic Company, and in view of the resolution reciting, in its preamble, the necessity for reassessment and the reassessment of this particular property in the name of appellee, and in view of the fact that in her written contest and protest before the board of commissioners she failed to present any question as to the regularity of the proceedings here assailed, any possible irregularities or defects in the proceedings or reassessment were waived by appellee. In the amended petition filed by plaintiff in the court below, and on which she went to trial, no allegations were contained as to the irregularities in the proceedings by and before the board of commissioners in the respect urged in this motion. Therefore we conclude that she is in no position to assert such alleged irregularities at this late date.. Gallahar v. Whitley, 190, S. W. 757, writ denied.

2. As to the second ground, we are of the opinion that the burden of proof was on the appellee, plaintiff below, to show that defendant’s claim was in. the nature of a stale demand, and that defendant had been guilty of an unreasonable delay in having the reassessment made. Petitioner sought to have the reassessment and the certificate issued thereon declared null and void, and the defendants enjoined from attempting to reassess the property involved, or to fix any lien thereon, or any personal liability against the owner. Hence she assumed the laboring oar. The fact that appellee was made one of the parties defendant. in the original suit against A. L. Jackson et al., filed in the seventeenth district court, October 14, 1912, would not, in itself,' in our opinion, support the conclusion that at that time the city or the Bitulithic Company had knowledge of who was the true owner of the property, and that the assessment against said Jackson as owner was an error. The original petition is not set out in the transcript, nor is it set out in the statement of facts. Hence we are not advised as to the reason shown for making Mrs. Henry a defendant in said suit. The improvement certificate on which the first suit was predicated was issued against Jackson alone. Two other persons named were made parties defendant in this original suit; but as to them, likewise, there is no evidence or showing as to the reason for their being made parties defendant. Against these two other parties no assessment or reassessment seems to have been ever sought. Since the evidence on this controlling issue of whether appellants were guilty of an unreasonable delay in not seeking sooner a reassessment was not developed in the trial court, and since without such evidence the judgment of the trial court cannot, .in our opinion, be sustained, we are of the opinion that our original judgment was the proper one to be rendered.

The motion for rehearing is overruled.
      <©s»For other cases see same topic and KBY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

license: Public Domain

text:
    TRIMBLE v. HAWKINS.
    (No. 8812.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    June 30, 1917.)
    1. Appeal and Error &wkey;>614^-STATEMENT op Facts — Authentication.
    Where an instrument purporting to be a statement of facts is not signed by counsel or approved by the trial judge, the appellate court cannot consider it for any purpose.
    2. Appeal and Eeeok &wkey;a659(6) — Review — Ceetioraei to correct Record.
    A motion for certiorari to correct the record filed subsequent to submission alleging that the purported petition contained in the record, though beaming the file mark of the district clerk, was not in fact the petition on which the judgment was rendered, but was an amended petition that was not filed until after the hearing, and that appellee did not know of such instrument until after submission, will be denied where the original petition attached to the commission contained substantially the same allegations as the amended petition in the record, and in view of the fact that it would be impracticable to dispose of the cause at the current term should the motion be granted, and it is not made to appear that any substantial advantage would accrue to appellant and no amended record is tendered for filing by the motion.
    3. Injunction <&wkey;76 — Grounds — Election Fraud.
    An allegation in a petition that fraud or misrepresentation was made by a live stock inspector and those interested in securing the passage of the quarantine law as applied to a county in an election held for that purpose does not present a legal; ground for an injunction restraining the inspector from requiring cattle to be dipp.ed.
    4. Animals <&wkey;29 — Contagious Diseases — Statutory Regulations — Construction,
    Acts 35th Leg. c. 60, § 3, authorizes the commissioners’ court to make an appropriation for public dipping vate for the eradication of fever-carrying ticks. Section 2 provides that for this purpose the commission is empowered and directed to establish special quarantine districts where such diseases are known to exist, and to quarantine the premises or pastures located in such districts and the domestic live stock therein when to their knowledge such pastures or premises are infected. Section 4 makes it the duty of the commission to investigate any disease of which they have reason to believe, or have notice, and to quarantine when they have reason to believe, it exists. Held that, before the live stock sanitary commission or its agents or inspectors are authorized to require cattle to be clipped, an inspection must be had under the authority of such commission of the county, district, or premises cattle from which are required to be dipped, and that such inspection shall disclose the presence of such _ ticks and the necessity for such dipping, and in the absence of such inspection one required to dip cattle is entitled to injunctive relief.
    5. Injunction <&wkey;>119 — Action tor Injunction-Answer — Sufficiency.
    An allegation of defendant’s verified answer denying the material allegations made by plaintiff as to his cattle and premises being free from ticks, and alleging the facts to be that he has inspected a large number of cattle in M. county, and has convinced himself that many cattle in said county have fever ticks, and that other representatives and agents of the commission in said county have also inspected many cattle and found the same conditions to exist, and that the live stock sanitary commission of Texas has declared all premises within M. county to be infected with or exposed to contagious and communicable diseases common to live stock, and alleging that the dip used has been according to tbe “legal formula,” although not definite or in orderly sequence in support of the judgment, in the absence of special exception sufficiently averred that the sanitary live stock commission, after an investigation and inspection by the inspector and the commission’s other agents, had quarantined the county and declared all cattle and premises therein to be unclean, and had required such cattle to be dipped.
    6. Appeal and Error <&wkey;544(l) — Injunction <&wkey;119 — Answer— Sufficiency.
    The allegations of the petition that plaintiff was the owner of cattle at premises free and dean fronr fever ticks and all infection, and that he had been required to have his cattle dipped, although no inspection had been made by the inspector or his agents to determine the presence of ticks, were sufficiently denied by an answer alleging that the commission after investigation and inspection had quarantined the county and required the cattle therein to be dipped, and in the absence of a statement of facts the court’s action in refusing injunctive relief will not be disturbed.
    7. Pleading <&wkey;253 — Answer after Amendment — Necessity of Repetition.
    A denial of material allegations in an original petition would not have to be repeated because such allegations are repeated in the amended petition.
    8. Injunction <&wkey;119 — Answer — General Denial — Effect.
    Under Yernon’s Sayles’ Ann. Oiv. St. 1914, art. 4663, providing that defendant in injunction may answer as in other civil actions, but no injunction shall be dissolved before final hearing because of material allegations of the petition unless the answer denying the same is verified, even a general denial under oath puts in issue the allegations of a petition for injunction and requires the plaintiff to sustain the allegations by proof.
    9. Pleading i&wkey;253 — Answer—General Denial-Repetition in Oase of Amendment.
    Under the direct provisions of Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 1908, a general denial is not required to be repeated when plaintiff amends his pleading.
    10. Appeal and Error &wkey;>854(2) — Review-Reasons for Judgment.
    Where a judgment was correct, it will not be disturbed, although all the reasons assigned by tbe trial court in support of it are not applicable or pertinent.
    Appeal from District Court, Montague County; O. P. Spencer, Judge.
    Suit fon injunction by W. S. Trimble against T. W. Hawkins. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    J. D. Rudy, of Bowie, for appellant Speer & Donald, of Bowie, for appellee.
   BUCK, J.

Appellant applied to the district judge of Montague county for a writ of injunction to restrain appellee, alleged to be the inspector in and for said county and acting under the live stock sanitary commission of Texas, from requiring appellant’s cattle to be dipped. A hearing was had upon the law questions involved, and presumably some testimony was introduced. We say presumably, for there is among .the papers in this case an instrument purporting to be a statement of facts, but it is not signed by counsel or approved by the judge. Hence we cannot consider it as a statement of facts, or for any other purpose. From an order and judgment denying the relief sought, plaintiff has appealed.

.Both parties have filed briefs, and appel-lee has, subsequent to the submission' of this cause, presented to this court a motion to set aside the submission and for a writ of cer-tiorari to correct the record,' alleging that the purported petition contained in the record, though it bears the file mark of the district clerk as of date May 28, 1917, is not in fact the petition upon which the judgment was rendered; that in fact such purported amended petition was never filed in the district clerk’s office until after the hearing, and that neither appellee nor his counsel knew of such instrument having been filed until subsequent to the filing of the record in this court. It is further alleged that the district clerk’s true file mark, as shown on this amended petition, on file in the district clerk’s office, is of date June 4, 1917, instead of May 28, as it appears in the record. Attached to this motion is what is alleged to be the original petition upon which the hearing was had.

We have concluded that this motion should be overruled, inasmuch as such attached original petition contains substantially the allegations of the amended petition, even though we are authorized to entertain the motion for certiorari filed subsequent to submission. Owing to the fact that this is the last week of our term, it would be impracticable for the cause to he disposed of at this term, should we grant appellee’s motion. Moreover, it is not made to appear that any substantial advantage would accrue to appellee or appellant should we grant the motion, or that the record would be in such shape that we could pass more intelligently or with more light on the questions presented. No amended record is tendered for filing by the motion. Hence we have concluded that the motion should be overruled.

The petition for injunction is rather lengthy, but, penetrating through the somewhat tropical verbiage by which the allegations of fact in the petition are at times obscured, it appears that the plaintiff alleged:

(1) That he was the owner of nine head of cattle all free from and clean of ticks and of all infectious and communicable diseases, that said cattle have not been exposed to ticks or such diseases, and that the premises on which said cattle are kept are also free from ticks.

(2) That the vats provided for the dipping of these cattle and other cattle in Montague county are filled with a liquid poison, injurious and dangerous to stock if dipped therein, and that said dip so used and proposed to be used had not been prepared by any competent person qualified to determine the requisite ingredients to be used, or the requisite proportions to be observed.

(3) That appellee had required plaintiff to have his cows dipped by the sheriff of Montague county, and had driven them a distance of eight miles and back within four hours’ time; that no inspection had been made in Montague county by defendant or his agents to determine the presence of ticks on the cattle or premises.

(4) That said defendant proposes and threatens to dip said alleged clean cattle again; that said dipping causes their noses, udders and around their horns to become blistered and cracked and sore; their milk to be greatly diminished, and many of the cattle so dipped have died as a result thereof.

(5) That plaintiff has mo adequate legal remedy, that defendant is insolvent, and that plaintiff has suffered and will suffer monetary damages.

(6) That fraud and misrepresentation were made by appellee and those interested in securing the passage of the quarantine law as applied to Montague county in the election held for that purpose.

(7) That the county commissioners had appropriated $5,000 to provide dipping vats and dipping fluid, without charge to owners of cattle, but the defendant had caused and procured, forced, and compelled the citizens' of Montague county to prepare dipping facilities at their own expense, etc.

We think that portion of the petition attacking the election does not present a legal ground for the injunctive relief sought. Nor do we think it necessary to consider the question of the appropriation by the county, or the authority of the county commissioners’ court to make such appropriation to provide vats and dipping fluid, except to say that in our opinion it is questionable whether the authority contained in section 3, p. 109, of the Acts of the Thirty-Fifth Legislature of 1917 authorizes the commissioners’ court to make an appropriation for constructing or leasing necessary public dipping vats within their county for the eradication of fever-carrying ticks. The disease for which this appropriation is authorized seem to be limited to anthrax, hog cholera, glanders, etc., as mentioned in said section. But in this appeal we are not called upon to decide, and therefore do not decide, whether such authorized appropriation may be legally made to cover expenses incident to the dipping of cattle against ticks.

It is only necessary for us to state that in our opinion, before the live stock sanitary commission, or its agents or inspectors, are authorized to require cattle to be dipped for the purpose of eradicating the fever-carrying tick, it is a prerequisite that an inspection be had under the authority of said live stock sanitary commission of the county, district, or premises cattle from which are required to be dipped, and that such inspection shall disclose the presence of such ticks and the necessity for such dipping. Section 1 of this act. Section 2 of the act provides that for the purpose of eradicating the obnoxious tick the live stock sanitary commission, hereinafter called commission— “is empowered and directed to establish special quarantine districts, where such diseases, or infections of such diseases, are known to exist. * * * The live stock sanitary commission shall have the power to quarantine the premises or pastures located in said special quarantine districts and the domestic live stock thereon situated in such quarantine districts or elsewhere, when to their knowledge such pastures or premises, or the live stock located,thereon are infected with or have been exposed to, a malignant, contagious, infectious, or communicable disease, or the infection thereof.”

Section 4 of the act further provides that it is the duty of the said commission—

“whenever they have reason to believe, or shall receive notice that any malignant, contagious, infectious, or communicable disease, or infection thereof, exists among any domestic animals in this state, to immediately investigate, and if such disease is found to exist, or if they have reason to believe such disease exists, to immediately quarantine such animals and the premises upon which they are located.”

While we do not believe that the act, whose construction is involved, requires the commission to have inspected each head of cattle or every farm or pasture, or other place where cattle are kept, in order to determine whether a quarantine is proper and justifiable as to any county, district, or area, yet we are of the opinion that as to any quarantine of such county, district, or area ordered inspection or investigation by said commission, or those working under its direction, should be made, and that this is a prerequisite to the establishment of a quarantine and the enforcement of the requirement that all cattle within such area shall be dipped. Hence we conclude that on the face of plaintiff’s petition he disclosed sufficient grounds for injunctive relief.

But defendant’s verified answer filed May 26, 1917, and directed to plaintiff’s original petition, denies the material allegations made by plaintiff as to his cattle and premises being free from ticks, an'd alleges the facts to be that Jie has inspected a large number of cattle in Montague county, and has convinced himself that many cattle in said county have lever ticks, and that other representatives and agents of the commission in said county have also inspected many cattle, and found the same conditions to exist, and that the live stock sanitary commission of Texas have declared all premises within Montague county to be infected with or exposed to contagious and communicable diseases common to live stock, and alleges that the dip used, has been according to the “legal formula.”

While the allegations are not as definite as they might properly be, nor perhaps given in the orderly sequence, yet we are of the opinion that, in support of the judgment, and in the absence of any special exception directed thereto, we should hold that said allegations substantially aver, and are reasonably intended to state, that the sanitary commission, after an investigation and inspection by the appellee and its other agents, had quarantined Montague county and had .declared all the cattle and premises therein to be unclean and had required the cattle thereon to be dipped. Whaley v. Thomason, 41 Tex. Civ. App. 405, 93 S. W. 212.

If this be a reasonable construction of the answer, and we think it is, the essential allegations contained in plaintiff’s petition are denied, and, in the absence of a statement of facts, we are not prepared to say that the court was not authorized to refuse the injunctive relief sought.

While the answer of defendant, appearing in the record, shows to have been filed prior to the filing of the amended petition, and no answer is filed to said amended petition, yet a denial of the material allegations in the original petition would not have to be repeated, because said allegations are repeated in the amended petition.

Even a general denial under oath puts in issue the allegations of the petition for injunction and requires the plaintiff to sustain his allegations by proof. Murphy et al. v. Smith et al., 38 Tex. Civ. App. 50, 84 S. W. 678.

Nor is the general denial required to be repeated if the plaintiff should amend his pleadings. Articles 1908 and 4663, Vernon’s Sayles’ Texas Civil Statutes. From the recitations and allegations in the defendant’s answer, even though we should not consider the purported original petition attached to appellee’s motion for certiorari, it is evident that the original petition did contain essentially, though not in so amplified a form perhaps, the allegations presented in the amended petition.

Hence we are of the opinion that we cannot disturb the judgment rendered by the trial court, though we may not believe that all of the reasons assigned by the court in support of such judgment are applicable or pertinent. A judgment may be correct, though the reason given therefor is not good. 4 C. J. § 2557; Calvin v. Neel, 191 S. W. 791.

We conclude, therefore, that the judgment should be affirmed; and it is so ordered.
      otlier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ©soFor other eases see same topic ana KEY-NUMBER in ail Key-Numbered Digests and Indexes 197 S.W. — 15


author: CONNER, C. J.

text:
    SIKES et al. v. FIRST STATE BANK OF DECATUR.
    (No. 8651.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 26, 1917.
    On Motion for Rehearing, June 30, 1917.)
    1. Fraudulent Conveyances <&wkey;210 — Recording Deed — Constructive Notice.
    Rev. St. 1911, art. 6828, provides that any instrument proved according to law may be recorded, and when delivered to the clerk to be recorded shall take effect and be valid as to all subsequent purchasers and creditors, but “nothing in this [article] shall be construed to make valid any instrument which was at the time of its execution from any cause invalid.” Article 6S42 provides that the record of instruments so authorized to be recorded shall be taken and hold as notice to all persons. Plaintiffs in a suit in the nature of a creditors’ bill sought to establish a lien against property, legal title to which was in the name of debtor’s wife and daughter. Held that, as the conveyances to the wife and daughter had been recorded prior to the giving of credit by plaintiffs, they would not be heard to say that they had no notice of the conveyances.
    2. Fraudulent Conveyances &wkey;>70 — Subsequent Hazardous Speculations.
    Where a voluntary conveyance is made in contemplation of the grantor’s entering upon hazardous speculations and with a view to protect him from subsequent creditors in the event his ventures should result disastrously, it is fraudulent as against subsequent creditors.
    3. Fraudulent Conveyances <&wkey;210 — Subsequent Creditor, with Knowledge of Conveyance.
    As a general rule a subsequent creditor who acquired his claim with knowledge or notice of the conveyance sought to be annulled cannot attack it as fraudulent.
    4. Fraudulent Conveyances <&wkey;298(4) — Evidence — Sufficiency.
    In a creditors’ suit seeking to subject land of wife purchased with community funds to payment of debts of husband, evidence held insufficient to show fraud invalidating the title of wife as to subsequent creditors.
    5. Fraudulent Conveyances <&wkey;298(4) — Evidence — Sufficiency.
    In a creditors’ suit seeking to subject improvements placed on minor daughter’s land with community funds to payment of debts of her father, evidence held insufficient to show that improvements were placed on the land with intent to defraud subsequent creditors.
    6. Fraudulent Conveyances i&wkey;69(l) — Evidence — Sufficiency.
    The fraud that will invalidate title must have existed at 'the very time the conveyance was made and at the very time the improvements were placed upon the lot.
    7. Fraudulent Conveyances <&wkey;278(l) — G-ood Faith — Evidence.
    That the father made his home upon the lot of his daughter, who was very young and unmarried, insured the property, and paid the taxes in his own name was entirely consistent with good faith.

      Appeal from District Court, Wise County; F. O. McKinsey, Judge.
    Suit by the First State Bank of Decatur against C. O. Sikes and others, in which the First National Bank of Decatur and another intervened. Judgment for plaintiff, and in-terveners and the unnamed defendants appeal.
    Reversed and rendered.
    Ratliff & Spencer, of Decatur, for appellants. McMurray & Gettys and R. E. Cars-well, all of Decatur, for appellees.
   CONNER, C. J.

This suit is one in the nature of a creditors’ bill instituted by the First State Bank of Decatur against C. O. Sikes and his wife, Tennie Sikes, and their daughter, Olga Sikes, seeking to establish an attachment lien theretofore adjudged in the county court against C. O. Sikes. Later the First National Bank of Decatur and the firm of Lillard & Co., of the same place, intervened in the suit, each alleging that they were creditors of C. O. Sikes and had likewise secured attachment liens which they sought to have established. All of the asserted liens rested upon two certain houses and lots situated in Decatur, the legal title to one of the houses and lots appearing to be in Tennie Sikes, while the legal title to the other appears to be in Olga Sikes. The creditors alleged, however, that the property covered by the liens was at all times the community property of C. O. Sikes and his wife, Tennie Sikes, and subject to the imposition of the liens described in the creditors’ pleadings.

The defendants appeared, and C. O. Sikes by his answer disclaimed any interest in the property in controversy. The defendants Olga Sikes and Tennie Sikes answered, setting up the conveyances under which they claimed their respective lots, one being a deed from S. P. Smith to Tennie Sikes, reciting payment of the consideration out of her separate property, and the other being a deed from C. O. Sikes and wife, Tennie Sikes, to Olga Sikes, purporting to convey the lot claimed by her.

To these special answers the plaintiff in the suit alleged that the conveyances under which Olga Sikes and her mother claimed had been executed with intent to defraud the future creditors of C. O. Sikes, and that the property was being held by said Tennie and Olga Sikes in secret trust for the benefit of the community estate of said O. O. Sikes and wife. It was further alleged by the plaintiff that after the conveyance to Olga Sikes O. O. Sikes and wife had expended and invested the community funds in improvements on the lot claimed by Olga Sikes to the extent of $1,500, and that such improvements had been so invested and placed with the purpose of defrauding the future creditors of O. O. Sikes, and that the same in fact were held by Olga Sikes for the benefit of the community.

The cause was tried before a jury, and resulted in a judgment against O. O. Sikes in favor of the plaintiff and each of the inter-veners for the amount of their debts as respectively claimed by them and established the liens asserted as against all interest own-ed in the property claimed by Tennie Sikes and against the improvements to the extent of $1,500 upon the lot claimed by Olga Sikes, and accordingly ordered the sale of the properties mentioned and the proceeds thereof to be applied in the payment of the plaintiff’s and intervener’s claims in the order of their priority as fixed in the judgment, and Olga Sikes and Tennie Sikes have appealed.

The deed to the lot claimed by Tennie Sikes, and upon which a small dwelling house was situated, was made on the 11th day of June, 1902, and duly. recorded in the Deed Records of Wise County on the 11th day of April, 1911. It recited a consideration of $50 “paid out of her separate property.” The evidence, however, authorizes the conclusion that the consideration in fact was out of the community property of C. O. Sikes and wife, Tennie Sikes. The deed to Olga Sikes for the lot claimed by her was made on the 21st day of March, 1908, reciting a consideration of $50 cash in hand paid, was in due form, and duly recorded in Wise county on the day of its execution. The improvements in controversy on the lot of Olga Sikes were placed thereon some time during the year 1911, and paid for, as we are authorized to conclude from the evidence, out of the community estate of C. O. and Tennie Sikes. It is undisputed, however, that the indebtedness of C. O. Sikes to the plaintiff and to the interveners all arose after the conveyances to Tennie and Olga Sikes and after the improvements referred to had been erected upon the lot of Olga Sikes, with the possible exception of about $35 due to Lillard & Co. The indebtedness of the several banks did not arise until in October, 1913, and that of Lillard & Co. originated in an account opened in April, 1911. S. A. Lillard testified, however, that:

“I do not know what part of this went in to that house down there (the house built upon Olga Sikes’s lot). I think about $35.”

We have therefore the question presented of whether under the circumstances the verdict and judgment subjecting the properties claimed by Olga and Tennie Sikes to the payment of the plaintiff’s and interveners’ claims is authorized. Appellants insist under the first assignment that the court should have given the peremptory instruction requested by them, and we have concluded that the assignment must be sustained. The question of whether a subsequent creditor can successfully attack a conveyance of his debtor on the ground of fraud has been the subject of much discussion in the courts. We have examined many authorities on the subject, but we find it unnecessary to refer to any but our own.' 'Title 118, Revised Civil Statutes, relating to the subject of registration, after providing for the record of conveyances affecting the title to land, provides (article 6828) that:

When any such instrument “which shall have been acknowledged, proved or certified according to law, may be recorded in the county .where .the land lies, and when delivered to the clerk of the proper court to be recorded shall take effect and be valid as to all subsequent purchasers for a valuable consideration without notice, and as to all creditors from the time when such instrument shall have been so acknowledged, proved, or certified, and delivered to such clerk to be recorded, and for that time only.”

The article referred to, however, among other things, provides:

“That nothing in this [article] shall be construed to make valid any instrument which was at the time of its execution from any cause invalid.”

A further article (6S42) provides that the record of any such instrument so authorized to be recorded “shall be taken and held as notice to all persons of the existence of such grant, deed or instrument.”

Appellees therefore cannot be heard to say, as some of them testify, that they had no notice of the several deeds to Tennie Sikes and Olga Sikes. In law it must be held that they had knowledge of these conveyances at and before the time they extended credit to O. O. Sikes, and it would seem that save for the proviso in article 6828, which we have quoted, that appellees, being without dispute subsequent creditors of O. O. Sikes, would be wholly precluded from questioning those conveyances. For the express wording in the body of the article is that when such instrument has been delivered to the clerk of the proper court to be recorded it “shall take effect and be valid * * * as to all creditors,” whether with or without notice, from the time the instrument shall have been recorded.

Appellees, however, seek to invalidate the deeds mentioned upon the ground of fraud. It is insisted that they were executed with the design and for the purpose of hindering persons who might thereafter extend credit to O. O. Sikes. No creditor is named; no specific person is designated; there is only the general allegation. It is true fraud will invalidate such an instrument, but to come within the proviso of article 6828 it must exist “at the time of its execution.” And it is only upon this ground that appellees can have any standing in this case. On this subject our Supreme Court in the case of Cole v. Terrell, 71 Tex. 549, 9 S. W. 668, quotes with approval the following from Bump on Fraudulent Conveyances, to wit:

“The simple fact of a subsequent indebtedness is not sufficient to make a transfer fraudulent. There must exist at the time, on the part of the grantor, a fraudulent view, and until this fraudulent purpose is established, either by positive proof or the exhibition of such facts as justify the inference of its actual existence, the conveyance cannot be set aside.”

The strictness with which this rule has. been enforced may be illustrated by the case of Lewis v. Simon, 72 Tex. 470, 10 S. W. 554. In that case it appears that Simon in 1885 had conveyed to his wife certain land to which a subsequent creditor asserted claims by virtue of a sale under an attachment lien. In disposing of the case, among other things, it was said:

“In order to maintain his defense the appellant introduced the testimony of but one witness. Presenting' this testimony in the light most favorable to defendant, it would have authorized the jury to find that Simon was indebted at the time of the conveyance to his wife in an amount in excess of the value of his assets; that after this time he continued his regular business, and also engaged in the purchase of mules or other speculations upon an extensive scale for a man of his means, and that within ten months after the deed to his wife he failed, being indebted to a large amount.”

It was further said:

“It has been held that where a voluntary conveyance is made in contemplation of the grantor’s entering upon hazardous speculations and with a view to protect it from subsequent creditors in the event his ventures should result disastrously it is fraudulent as against such subsequent creditors. Wait’s Fraud. Oonv. §§ 100, 101, and cases cited.
“But the author cited also says: ‘As a general rule a subsequent creditor who acquired his claim with knowledge or notice of the conveyance sought to be annulled cannot attack it as fraudulent.’ Id. § 106; Baker v. Gilman, 52 Barb. (Mass.) 89. This rule has been recognized in former decisions in this court. Lehmberg v. Biberstein, 51 Tex. 457; De Garca v. Galvan, 55 Tex. 53; Van Bibber v. Mathis, 52 Tex. 406. The creditor knowing that the grantor has voluntarily parted with his property, we fail to see the device or deceit by which he can claim to have been defrauded. We conclude there was no evidence to 'warrant a verdict for the defendant, and that the court did not err in instructing the jury to find for the plaintiff.”

In the ease before us no evidence whatever is pointed out nor have we found any, to the effect that O. O. Sikes was insolvent or even indebted at the time that he caused the conveyance of the lot claimed by his wife, Tennie Sikes, to her. And this is true substantially of the situation at the time he placed the improvements upon the lot claimed by’his daughter, Olga. There is no testimony indicating that at this time he was insolvent or in bad repute in financial circles; on the contrary, the testimony indicates that his credit was at least fair during these periods. The lot to his wife, as well as that of the daughter, was at the time of the several conveyances thereto of small value. The recited consideration In 'each deed was but $50, and it seems unreasonable to suppose that in 1902, when he caused the execution of the deed to his wife of the lot now claimed by her, that he did so with the purpose of defrauding creditors who became such in 1911 at the earliest and for the most part in 1913. The proof further shows without dispute that there was a small house upon the lot claimed by the wife in which O. O. Sikes and his family lived until the lot of Olga Sikes was improved; whereupon the improved premises were occupied by O. O. Sikes and his family. If it be admitted that the lot and the improvements constituted community property in 1911, the fact that it was occupied and used and exempt undfer our laws as a homestead for several years thereafter would seem to refute the idea that there could have been any then intention in the mind of 0. O. Sikes to defraud creditors. Nor does the evidence show that O. O. Sikes after these conveyances and after such improvements engaged in any ' specially hazardous undertakings. So far as the evidence indicates, he continued to pursue his regular occupation as a carpenter and builder. The credit extended to him by the plaintiff and interveners in this case were so done without requiring security. It is undoubtedly true that the conveyance to Tennie Sikes, made as it was at the instance of the husband and for her separate use and benefit, is to be construed as a gift at least, even though acquired with the proceeds of community property, and would have the effect of vesting in her the sole and separate right thereto, free from the debts asserted in this case. So too, do we think it must be held with reference to the improvements put upon the lot of Olga Sikes. The improvements consisted of a dwelling house that undoubtedly became a fixture and part of the lot, and there is no evidence that the improvements were so placed under an agreement or with an« understanding that Olga Sikes was to account therefor, or that they might be removed without her consent, or that her lot would stand charged with their value. The evidence is simply .silent upon these issues, save that appellees insist upon evidence to the effect that O. O. Sikes rendered his daughter’s property in his own name, insured the property in his own name, and paid taxes thereon in his own name. It further appears, however, that Olga Sikes was an only daughter; that she was in fact a minor at the time the improvements were placed upon her lot, having attained her majority about the time they were completed 'in 1911. So far as the record shows, she remained at home. She testified that her father attended to all of her business; that she had no occasion to and did not inquire into such matters. It also appears that some time in 1915 O. O. Sikes removed to New Mexico owing the debts in controversy in this suit, and since which time Olga and his wife claimed the property in question, as well also as some household effects left by O. O. Sikes in his home at the time of his removal. It further appears that since his removal to New Mexico O. O. Sikes had collected the rents as his own for the several houses in question, and perhaps at times referred to the property as his. But all of these circumstances, in our judgment, are insufficient to authorize a divestiture of the title theretofore fixed in the wife and daughter.

The fraud, if any, that will invalidate these titles must have existed at the very time the conveyances to the wife and daughter were made and at the very time the improvements were placed upon the lot.

And the circumstance that O. O. Sikes, while in Decatur and living upon the lot of his daughter as his home, insured the property and paid the taxes in his own name, is entirely consistent with good faith when we consider that his daughter was very young, unmarried, and living with him. Within themselves we do not think they are sufficient to establish with that degree of certainty required by the law fraud invalidating the title of Olga Sikes, and, unless so, the fraud of. Sikes subsequently manifested in 1915 when he removed to New Mexico will not alter the case.

We conclude that the court' erred in giving the peremptory instruction, and that the judgment should be reversed, and here rendered for Olga Sikes and Tennie Sikes. See in addition to the cases we have before cited De Garca v. Galvan, 55 Tex. 53; O’Neal v. Clymer, 61 S. W. 546; Kane v. Ammerman, 148 S. W. 815; Lehmberg v. Biberstein, 51 Tex. 457; Bavouset v. York, 18 Tex. Civ. App. 428, 46 S. W. 61.

Reversed and rendered.

On Motion for Rehearing.

Appellees present a very earnest and forceful motion for rehearing. It is particularly insisted that we were in error in our conclusions as to the title of Mrs. Tennie Sikes, the contention being that the undisputed proof shows that the lots claimed by Mrs. Tennie Sikes were originally owned by J. O. Sikes, the father of C. O. Sikes, husband of Tennie Sikes; that J. O. Sikes left surviving him three sons and one daughter, a Mrs. Gibbons, who inherited the property; that Paul Smith, who conveyed the lots to Tennie Sikes, had only the title acquired by him from one of the heirs; that later the heirs of Mrs. Gibbons conveyed to Tennie Sikes, without recitation therein that it was conveyed as her separate property and without proof that it was paid out of her separate funds, thus leaving a one-fourth interest in one of J. O. Sikes’ sons, which, so far as the record shows, has never been conveyed, and also the one-fourth interest inherited by O. O. Sikes, to which, so far as the record shows, no formal transfer has been made. The proof is as ¿stated in the contention just noted. We nevertheless, on original hearing, were, and are still, of the opinion that as against the appellees, the subsequent creditors of O. O. Sikes, Tennie Sikes is entitled to hold the property claimed by her free from, the appellees’ attachment liens, and in view of the earnestness and ability with which appellees present their contention, it is perhaps due them that we should state the reasons for our original conclusions in this respect with more particularity.

The deed from Paul Smith was executed on the 14th day of June, 1902. It was a general warranty deed, and for the consideration therein stated purported to convey the entire title, free and absolute, to Tennie Sikes as her separate property and estate. Presumably, as originally stated, this was done with the full assent and at the direction of' O. O. Sikes, the husband, which in legal effect and so far as C. O. Sikes was concerned constituted the property the separate property of Tennie Sikes. The deed from the heirs of Mrs. Gibbons was also a general warranty deed, dated on May 20, 1911, and duly acknowledged and filed for record July 8, 1911; the Smith deed having been recorded April 11, 1911. In view of the facts shown by the record that thereafter C. 0. Sikes and Tennie Sikes occupied the premises together as their homestead for years before the accrual of the debts upon which appellee sued without any complaint on the part of the husband and without evidence of a claim by him of title in the lots as against the separate interest of his wife, but with a formal disclaimer of title on his part filed in the court below, we think, as between husband and wife, that it should ije held that the Gibbons deed was secured in the way of perfecting the wife’s title, and that the Smith and Gibbons deeds, together, under the circumstances, and as against the husband and as against his subsequent creditors, vested in Tennie Sikes full and absolute title to all interest in the premises save that shown by the single remaining heir of J. O. Sikes, from whom no conveyance appears. See Peters v. Clements, 46 Tex. 124; Tison v. Gass, 46 Tex. Civ. App. 163, 102 S. W. 754; Speer on Law of Marital Rights, § 358 et seq.

■ In other respects we deem it to be unnecessary to attempt to add to what was originally said by us, save that we should perhaps say that in reversing and rendering the judgment, as we did, in favor of Tennie and Olga Sikes, it was not our purpose to reverse the judgment in favor of appellees as against the defendant C. O. Sikes. C. O. Sikes answered in the case below, suffered judgment, and prosecuted no appeal.

The judgment, therefore, as against him will not be disturbed, but in other respects the motion for rehearing is overruled.
      <gc»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J. W. J.

text:
    GRAY v. S. T. WOODRING LUMBER CO. et al.
    (No. 8758.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 19, 1917.
    Rehearing Denied June 23, 1917.)
    1. Injunction &wkey;>122 — Pleading—Verification — Sufficiency.
    In suit for injunction against city officers to restrain their action, a petition verified only on information and belief is insufficient, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4649, stating the requisites of a petition for an injunction.
    2. Injunction <&wkey;>12 —Right — Extent of Relief.
    In suit to restrain erection of alleged fire hazard buildings in close proximity to plaintiff’s buildings, where plaintiff admitted that, if constructed at a given distance, his hazard would not be increased, he was in no position to complain of denial of the injunction, which sought a still greater removal of the buildings.
    3. Constitutional Law <&wkey;70(3) — Statutes —ORDINANCES — MOTIVES OF LEGISLATIVE Body.
    In passing upon the question of the reasonableness of an act of the Legislature, or an ordinance of a municipal corporation, the good faith or motives of the legislative body cannot be questioned by the court called upon to construe the statute, such not being a matter of judicial inquiry, and this rule applies to legislative acts of municipal corporations, and not to ministerial acts.
    4. Municipal Coepoeations <&wkey;122(2) — Ordinances — Enjoining Enfokcement — Bub-den of Proof.
    The burden of establishing the unreasonableness or discriminatory character of an ordinance is upon the party seeking to enjoin its enforcement.
    5. Injunction <&wkey;34 — Fike Hazards — Storing Shingles — Rights of Owner.
    The mere fact that storing shingles near building of another owner would tend to increase his fire hazard does not warrant enjoining such use of his premises, since such hazard is largely an incident to the owfPfership of urban property.
    Buck, J., dissenting in part.
    Appeal from District Court, Johnson County ; O. L. Lockett, Judge.
    Suit by W. J. Gray against the S. T. Wood-ring Lumber Company and others. From the decree rendered, complainant appeals.
    Affirmed in part, and in part reversed and remanded.
    H. P. Brown, Warren & Russell, and S. C. Padelford, all of Cleburne, for appellant. Walker & Baker and W. E. Myers, all of Cleburne, for appellees.
   BUCK, J. W. J.

Gray filed Suit in the district court of Johnson county against the S. T. Woodring Lumber Company, a corporation, and the city of Cleburne, represented by its council, alleging that he was the owner of certain lots in the city of Cleburne; that said lots were located near the public square, and had on them a two-story building used as a hotel, and other improvements; that prior to February 17, 1917, there existed and was in force an ordinance including the entire block in which plaintiff’s lots were located within the fire limits, and prohibiting all owners of lots within said block from erecting any buildings except such as were constructed of brick, concrete, or stone, or a combination thereof, or from moving thereon buildings not so constructed; that on said last-named date the defendant lumber company purchased the south one-half of said block, and entered into possession thereof with the purpose of operating thereon a lumber yard; that just prior to said purchase, the said lumber company—

“by and through certain evilly disposed persons, and for the private and individual use and benefit of the defendant, the said S. T. Woodring Lumber Company, applied to the other defendants, sitting as the common council of the city of Cleburne, for the purpose of changing the said ordinance fixing the fire limits of said city of Cleburne, so that the private property of the said defendant S. T. Woodring Lumber Company would be exempted from said fire limits and obligations placed upon those within said fire limits, and would be placed without said fire limits, and that the said defendant the city of Cleburne, by and through its common council, as alleged above, for the purpose of accommodating the said defendant S. T. Woodring Lumber Company * * * repealed that portion of the ordinance of the city of Cleburne fixing the fire limits as alleged above and excluded the south portion of said block No. 10 from within said limits.”

It was further alleged that the passing of said amended ordinance was effected for no public purpose, .but for the purpose of injuring plaintiff, and of enabling the lumber company to erect other wooden buildings, nearer and closer to the buildings of the plaintiff, thereby rendering plaintiff’s buddings more liable to fire hazard. It was alleged that the ordinance as passed was discriminatory, and a writ of injunction was sought to restrain the enforcement of said ordinance by the city of Cleburne and the erection of wooden buildings on the south half of said block by the lumber company.

After general demurrer and special exceptions, the defendants, the lumber company and the city .of Cleburne, answered in separate pleadings, denying that any improper motives had actuated the council of the city of Cleburne in passing the ordinance and denying that the lumber company had conspired with the members of said council to secure the passage of said ordinance, and denying that the enforcement of the ordinance would increase the fire hazard of the plaintiff, or subject his property to an increased rate of insurance. It was further pleaded that the city of Cleburne was specially authorized by the statutes of this state to locate and establish the fire limits of the city of Cleburne and to modify or alter the same at its discretion, and that the charter of the city of Cleburne specially conferred similar powers upon the council, and that the discretion of the council in so establishing, modifying, or altering the fire limits was not subject to the control of the courts, or to an investigation or attack on the ground that the ordinance might be discriminatory or unreasonable.

The lumber company specially denied that it had commenced, or was about to commence, the erection of wooden sheds or structures, or contemplated the erection of such structures on its lot further north than the original sheds thereon, but that, on the contrary, the sheds it was then erecting were further south than the original sheds, and more than 30 feet from the north line of its property. It further alleged that it was placing a roadway or driveway on the north line of its lot along the south line of plaintiff’s lot, and that the same would be kept free from buildings or other structures, and would in no wise interfere with the plaintiff’s property, depreciate its value, or increase the fire hazard or insurance rate, etc. It further alleged that the hotel building owned by the plaintiff was situated on the north end of his lot, and more than 30 feet from his south line, and that other improvements on his property consisted of worn-out and dilapidated sheds, horse stalls, barns, etc., all composed of wood, and very unsightly, and that the same constituted a constant and definite fire menace to the whole neighborhood. It further alleged that the defendant lumber company was proposing to conduct a large retail lumber business on its lot, and that the same would draw trade to that block and the surrounding blocks and prove very beneficial to persons engaged in business in that neighborhood. Attached to its sworn answer were affidavits from R. E. Pitts and O. H. Warren, both engaged in the fire insurance business in Cleburne, stating that the fire hazard of plaintiff’s property 'would not be increased or the insurance rates raised by the erection of the new sheds on defendant lumber company’s property.

Defendant city of Cleburne answered, adopting, in part, the answer of the lumber company, and further averring the ordinance in question had been duly and legally passed by the city council of said city, and that in its passage said council had exercised the broadest discretion, looking alone to the public good and welfare of the inhabitants of said city; that said ordinance was duly and legally adopted in the mode and manner provided by law and under the authority given said city in article 15 of its charter.

Plaintiff by supplemental petition demurred generally and specially to defendant lumber company’s answer, and in a general way denied the allegations contained in said answer, and specially alleged that, though defendant had removed its sheds further south from plaintiff’s property, it was using said property for storing highly combustible matter and material, consisting of shingles, etc., and that the storing of such combustible material near to plaintiff’s property would increase its fire hazard. He further admitted that the wooden sheds, horse stalls, etc., on the south end of his lot were somewhat dilapidated, but stated that he had been desirous of improving the same, and had applied to the mayor of the city of Cleburne for the privilege to improve the same with material other than brick or such as would be fireproof, and had been denied such privilege.

Perhaps sufficient pleadings have been noted to meet the requirements, of the discussion hereinafter to follow, 'though the pleadings, especially of the plaintiff, were rather voluminous.

The cause was heard by the court in chambers, being apparently submitted on the pleadings and accompanying affidavits alone, and the court granted an injunction, restraining the lumber company “from permanently storing or keeping any lumber, shingles, or inflammable material of any character in the rear of the plaintiff’s lots within 25 feet of his south line.” In all other respects the injunction sought was denied. Both plaintiff and the defendant lumber company excepted and gave notice of appeal and filed their appeal bonds, which were duly approved, but the plaintiff, having applied for transcript, is treated in the record as the appellant, and will be so styled and regarded here.

The south boundary line of the fire district as designated by the amended ordinance cuts off some 4 feet of plaintiff’s claimed property, though the pleadings of the lumber company alleged the ownership of said south 4 feet to be in said company, and that plaintiff was holding the strip adversely to defendant in an effort to procure title to same by limitation. The north line of defendant lumber company’s half block coincides in the main with the south boundary of the fire district, the principal portion of the said half block extending 4 feet beyond and north of plaintiff’s alleged south line. This is mentioned for the reason that some importance seems to be attached by appellant to the fact that the south line of the fire district divides his lots, leaving all but 4x105 feet (the lots each being 52% feet wide) within the fire limits.

Both parties complaining of the judgment, we will first consider appellant’s contentions. Appellant’s original petition is verified only upon information and belief. This form of verification has been held many times insufficient in this character of proceeding. Abilene Independent T. & T. Co. v. S. W. T. & T. Co., 135 S. W. 356, 359; Lane v. Jones, 167 S. W. 177, 179; Clarey v. Hurst, 136 S. W. 840, 843; article 4649, Vernon’s Sayles’ Texas Civil Statutes. Hence plaintiff’s original petition, not being properly verified, was insufficient to justify any injunctive relief thereon. If the supplemental petition, which was properly verified, be looked to for such authority, and if there be supplied from the original petition the essential allegations as to parties, etc., which the supplemental petition omits, yet, inasmuch as the latter petition admits that the defendant lumber company has erected its sheds 30 feet from plaintiff’s south line, and admits that plaintiff agreed with the lumber company, if the latter would donate ’ 10 feet, that thp plaintiff would donate 10 feet, the 20 feet to be used as .a public alley, and that by said plan and arrangement plaintiff’s insurance rates would not be increased or the fire hazard to his property enhanced, we are unable to see that plaintiff is in position to complain of the denial of the broader relief sought. It is true he alleged that the defendant lumber company had stored, and was threatening to store, shingles and other combustible material within the space, which, he says, if left open would protect his property from increased fire hazard, yet, as the judgment granted him a fuller relief than he claimed was sufficient to protect his property, any equitable rights shown have been guarded by the judgment. Hence we have concluded that at least so much of the judgment as denied plaintiff further relief must be sustained. Further, by article 965, Vernon’s Sayles’ Texas Civil Statutes, it is provided:

“The city council, for the purpose of guarding against the calamities of fire, may prohibit the erection, building, placing, moving, or repairing of wooden buildings within such limits within said city as they may designate and prescribe,” etc.

Article 15, § 116, of the special charter granted the city of Cleburne confers upon that municipal corporation the power to create and establish fire limits, and also to modify, alter, or change the same. While there is ample authority for the contention that where the Legislature has granted special authority to pass ordinances of a specified purpose and defined character, if the power thus delegated does not conflict with the Constitution, the validity of an ordinance passed thereunder cannot be impeached because it would have been regarded as unreasonable if it had been passed under the incidental powers of the corporation (2 McQuillin on Mun. Corp. § 725; Chimene v. Baker, 32 Tex. Civ. App. 520, 75 S. W. 330, citing Dillon on Mun. Corp. § 328), yet it appears from an examination of Texas authorities that our courts have not ■ uniformly observed this distinction, though in many instances they have recognized it. See H. & T. C. Ry. Co. v. Dallas, 98 Tex. 396, 84 S. W. 648, 70 L. R. A. 850.

But it is undoubtedly true that in passing upon the question of the reasonableness of an act of the Legislature, or an ordinance, of a municipal corporation, the good faith or motives of the legislative body cannot be questioned by the courts called upon to construe the statute, such not being a matter of judicial inquiry. McQuillin on Mun. Corp. vol. 2, p. 1527, § 703 et seq. This rule applies to legislative acts of municipal corporations and not to ministerial acts. Id. § 704.

But if the act on its face is unreasonable or discriminatory, of it is shown to be so by the circumstances attending its attempted enforcement, it may be so declared by the courts and .held void. But the burden of establishing the unreasonableness or discriminatory character of an ordinance is upon the party seeking to enjoin its enforcement. Milliken v. Weatherford, 54 Tex. 388, 38 Am. Rep. 629; Mills v. Railway Co., 94 Tex. 242, 59 S. W. 874, 55 L. R. A. 497. The last-cited case restates the proposition that if the ordinance be expressly authorized by the Legislature and be a regulation which the Legislature itself has the power to adopt and enforce, the courts cannot inquire into its reasonableness. It seems we are justified in holding, further, that the judgment against plaintiff below -must be sustained upon the ground that the Legislature has conferred upon the city of Cleburne, both by statute and by special charter, the power to pass an ordinance determining and fixing the fire limits, and that no judicial inquiry as to the reasonableness of such exercise of power is permissible. Raffetto v. Mott, 60 N. J. Law, 413, 38 Atl. 857; Railway Co. v. City of Dallas, 98 Tex. 396, 84 S. W. 648, 70 L. R. A. 850. Moreover, in our judgment, the pleadings of appellant, as controverted by the pleadings of defendant and affidavits, do not sustain his claim of discrimination, and the judgment should bo upheld on the theory that defendants have sworn away any grounds for equitable relief shown by appellant. So upon all of these grounds we hold the judgment, so far as complained of by appellant, must be sustained.

Appellee complains of the injunction restraining it from storing shingles and other combustible material within 25 feet of- appellant’s south line. The majority are of the opinion that this contention should be sustained, and the portion of the order and judgment adjudging plaintiff such relief should be reversed, in order that that issue alone may be determined upon a hearing on the meritsthat since the trial court did not find, nor was it justified in finding, that the ordinance in question was unreasonable, appellee should not be deprived of such use of its property as is not prohibited by law. The majority are of the opinion that it is not shown that the storing of shingles and other lumber on the north 25 feet of appellee’s lot is an unreasonable exercise of the right of domain of the owner of said lot, and that, even though it should be conceded that thereby appellant’s property will be subjected to a greater fire hazard, such consequences are only the natural result flowing from the ownership of property in a city or town, where improvements on and uses of land must necessarily affect, in a measure, those owning or occupying adjoining premises. The general rule is that the owner of land has the right to make any reasonable use of it he sees fit, and if injury result to an adjoining landowner, it is damnum absque injuria. I. C. J. p. 1292. This text uses the following language:

“The test as to whether the particular use of the premises is a reasonable one is whether or not it is such a use as, under the circumstances, an ordinary man would make of his premises, taking into consideration the importance of the use to the owner, as well as the extent of damage to be inflicted upon his neighbor, and if he uses ordinary care therein to prevent unnecessary injury to adjoining landowners, the fact that the use is one which will inevitably produce injury to such adjoining owners does not necessarily make it negligence.”

The case of G., C. & S. F. Ry. Co. v. Oakes, 94 Tex. 155, 58 S. W. 999, 52 L. R. A. 293, 86 Am. St. Rep. 835, which involved the planting of Bermuda grass on the railway company’s right of way and the consequent spreading thereon onto appellee’s land, lays down the rule in the following language quoting from the syllabus:

“In determining what is the proper use of land by its owner, with reference to adjacent lands, the importance of the use to the owner, as well as the damage to be inflicted upon his neighbors, must be taken into consideration, and the rights of the parties are to be adjusted in a practical way, the question being whether the proposed use is a reasonable one, under all the circumstances.”

Applying the rule as above stated to the instant case, it should be noted that in ap-pellee’s answer to appellant’s supplemental petition, it is said:

“That it is not true that the defendant threatens to keep any combustible material near the south line of the plaintiff’s property, as alleged in the sixth paragraph of the supplemental petition, or that the use -this defendant is making of its property, or any contemplated use, would result in raising the insurance rates on plaintiff’s property, or upon any structures which might be erected thereon. That the building material and other property located on the north side of its property will be removed as soon as the sheds are completed,” etc.

In the opinion of the writer the trial court was authorized to find, as he evidently did, that the “shingles and other combustible material” placed within 25 feet of plaintiff’s south line would endanger his property. While defendant denied its intention to leave such material there permanently, yet plaintiff had so alleged, and the injunction merely restrained the defendant from doing that which it disclaimed any intention of continuing to do. The fact that appellee is complaining of this restriction in the use of its property supports the evident conclusion of the trial court that it did so intend. Therefore the writer is of the opinion that the judgment should, in all things, be affirmed. But in line with the views of the majority, the judgment, in so far as it denies to plaintiff the injunction restraining the defendant lumber company from erecting on its land other than fire proof buildings, and denying injunctive relief against the city of Cleburne, is affirmed, and the injunction granted, restraining appellee lumber company from storing shingles or other combustible material within 25 feet of appellant’s south line, is reversed, for the purpose of having that issue tried on its merits by the trial court.

Affirmed in part; reversed and remanded in part.

BUCK, J., dissenting in part as indicated in opinion.
      (g^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGHTOWER, C. J.

text:
    AMERICAN NAT. INS. CO. v. FULGHUM.
    (No. 242.)
    (Court of Civil Appeals of Texas. Beaumont.
    June 30, 1917.)
    1. Appeal and Error @=51003 — Review — Verdict.
    While it is the duty of the Appellate Court to reverse a judgment and remand the case where the evidence so clearly preponderates against the verdict as to show that the jury was influenced by prejudice or sympathy, unless the court is able to say from the evidence, considered as a whole, that it does so overwhelmingly preponderate, or that from the evidence the verdict is clearly wrong, it must sustain the verdict.
    2. Evidence @=>219(1) — Failure to Call Witnesses.
    In an action against a railroad for injuries alleged to have been sustained when struck by projection on a train, where plaintiff had first testified that he did not read a deposition signed by him and introduced by defendant, in which he •stated that the injury was received while he was attempting to hoard a moving train, failure of the defendant to produce at the second trial the persons who witnessed this document was to be considered by the jury in favor of the plaintiff’s contention.
    3. Appeal and Error @=>1006(3) — Review— Second Verdict.
    Where two verdicts had been found in favor of plaintiff and both trial judges upheld the verdict, on second appeal the court will not hold that the evidence is so clearly against the verdict as to authorize its reversal.
    Appeal from District Court, Harris County ; Henry J. Dannenbaum, Judge.
    Action by Tom Fulghum against the American National Insurance Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Williams & Neethe, of Galveston, and Lane, Wolters & Story, of Houston, for appellant. Barkley & Green and 'Dave D. Hughes, all of Houston, for appellee.
   HIGHTOWER, C. J.

We take the following statement from appellant’s brief, showing the nature and result of the suit, which is not questioned by appellee, and which we find to he substantially correct:

The suit was brought by Tom Fulghum, ap-pellee here, in the district court of Harris county, against the American National Insurance Company, appellant here, on an accident and life policy, claiming a benefit of $1,000 for the loss of an arm, alleged to have occurred in a railroad accident, and also for 12 per cent, damages and attorney’s fees, under the statute in this state providing for such. This is the second appeal of this case. On the former appeal (177 S. W. 100S), which was also from a judgment in favor of appel-lee and against appellant, the judgment of the lower court was reversed and the cause was remanded for a new trial, on the ground, as stated by the appellate court, that the evidence was insufficient to support the finding by the jury in 'favor of appellee. The opinion on the former appeal will be found reported in the case of American National Insurance Co. v. Tom Fhlghum, 177 S. W. 1008. The opinion in that ease was by the Court of Civil Appeals at El Paso, and the statement of the cause of action asserted by appellee, Fulghum, and all defenses interposed thereto by appellant, as well as the evidence introduced, is sufficiently full to give a clear understanding of the pleadings and evidence, and the pleadings of the parties and the evidence introduced are practically the same here as on the former appeal, and, for the sake of brevity, we refer to the opinion of the Court of Civil Appeals on the first appeal.

Appellant’s first assignment of error is, in effect, that the verdict of the jury in favor of appellee is clearly against the great preponderance of the evidence, and is therefore not supported by the evidence, and that the evidence so clearly preponderates against the verdict as to show that the jury was influenced by prejudice against appellant or sympathy for appellee, etc. If this contention, of appellant he correct, in the opinion of this court, then it becomes the duty of the court to reverse the judgment and remand the case. But, unless the court is able to say from the evidence, considered as a whole, that the same does so overwhelmingly preponderate against the verdict as to indicate prejudice or sympathy as claimed by appellant, or that from the evidence introduced the verdict of the jury is clearly wrong, then it becomes the duty of the court to sustain such verdict.

We have carefully read the opinion of the Court of Civil Appeals on the former appeal, and have concluded that that court, in reversing and remanding the case on the ground of insufficient evidence to support the verdict on that appeal, was influenced largely by the fact that Fulghum had made two written statements at different times as to the cause of his injuries, which statements were clearly contradictory of each other in material respects. ' It is true that there were introduced in evidence two different statements made by appellee to the assistant claim agent of the Wabash Railway Company, detailing how appellee’s injuries occurred. It is undisputed that the injury was sustained on the 13th day of August, 1912, at the little station of Hahn, on the Wabash Railroad in the state of Michigan, and resulted in the loss of ap-pellee’s arm. The evidence shows that he was confined in the hospital in consequence of such injuries, and that on the 22d day of September, 1912, while still confined in the hospital, he was approached by said claim agent of the Wabash Railway Company for a statement as to how he was injured, and he thereupon made a written statement, In which, among other things, he stated that he was struck by some object projecting from a freight train of the Wabash Railway Company while he (Fulghum) was walking along in the yards at the station of Hahn before mentioned, 'which statement in that respect substantially corresponds with his evidence as given on the trial below in this case. Thereafter, however, on February 11, 1913, appellee made to said claim agent another written statement, so it is claimed, by appellant, and this statement was introduced in evidence below, from which it appears that appellee stated to the claim agent at that time that he was attempting to catch a moving train of said railway company at the time of his injury, and that he failed in his attempt to board said train and fell therefrom, and was run over and injured, and, among other things, that he was a trespasser in the railroad company’s yards, and in attempting to get on its train, and that he was to blame for his injury.

Now, the vital issue for determination on the trial below was whether appellee was struct by some object which projected from a moving train, as he claimed, or whether -his injury was sustained while he was attempting to board a moving train, and the jury determined this issue and found that appellee was not injured while attempting to board a moving train. The case was submitted on special issues, and issue No. 1 was as follows:

“Was or not the plaintiff injured while attempting to board a moving train? If you answer this question in the affirmative, and then only in such event, you will answer the other questions.”

The jury answered: “He was not.” Judgment was entered upon this verdict in favor of appellee, as hereinbefore stated. The record before us discloses that the appellee himself and appellant’s witness Louis Mann were the only persons who testified at the trial below who attempted to tell how the injury occurred, or claimed to know how the injury occurred. The witness Louis Mann was a telegraph operator at the time the injury occurred, and was in the employ of the Wabash Railway Company at the station of Hahn, Mich., and testified, in substance, that he saw appellee at the time he was injured, and that appellee sustained his injury while attempting to catch a moving train that was running through.the station yards at said station, and failed in the attempt, and fell under the train. This witness testified by deposition. He was flatly contradicted on this point, however, by ap-pellee. The statement that was made to the assistant claim agent, or claimed to have been made to him by appellee of date February 11, 1913, purports to have been signed by three persons who signed the same as witnesses to such statement claimed to have been made by appellee. Appellee on the trial below testified that this statement bore his signature, but that he did not read the statement, and tliat he did not know of its contents, and further testified, in substance, that the same was prepared by the claim agent of the railway company, which is undisputed, and that he, appellee, understood that the same was only to be a receipt for §50 then paid him by the railroad company’s claim agent, with the promise of employment when he should be able to go to work. The deposition of this claim agent, whose name is Z. T. Dungan, was in evidence, and, among other things, he testified that said statement was read over to appellee before he signed it, and that it was read to appellee in the presence of three other persons whose signatures appear as witnesses to said statement. In view of the fact that it is admitted by appellant that the testimony of appellee on the last trial was substantially the same as on the first trial, it is apparent to us that appellant was aware that in all probability appellee, when the case should be retried, would, testify as he had done on the first trial, and we are at a loss to understand why appellant did not attempt to procure the evidence by some means of these three disinterested persons whose names appear to this damaging statement as witnesses to the fact that said statement was in fact read over to appellee at the time he signed the same, as claimed by said assistant claim agent, Dungan. It seems to us that, in view of the conflict between the said Z. T. Dun-gan, the claim agent, and appellee, as the same developed on the first trial on the point as to whether appellee signed this second statement knowing the contents of same, appellant ought to have shown some reason why the testimony of these three witnesses to the statement was not produced in contradiction of appellee. We think these were matters to be considered by the jury in favor of appellee’s contention below.

It is contended by appellant that the state of the evidence was such, after the case was developed below, that ordinary and reasonable minds could not have come to any other conclusion than that appellee wa¿¡ injured while attempting to get on a moving train, and that his claim that he was struck by some object projecting from a train, while walking along the track, was a pure fabrication, and ought to have been so decided by the jury. It has transpired, however, that 24 jurors at different times have passed on this issue, and each of them found in favor of the contention of appellee, and two different trial judges have upheld the verdict of such jurors. Under such circumstances, we have concluded that we ought not to hold on the second appeal in this case that the evidence is so clearly against the jury’s verdict as to clearly show that the same is wrong, and we therefore overrule the assignment of error on this ground. Construction Co. v. McCall, 167 S. W. 811; Camp v. Smith, 166 S. W. 23; Hutchinson v. Murray, 169 S. W. 640; Western Assurance Co. v. Hillyer-Deutsch-Jarratt Co., 167 S. W. 821.

There are other assignments of error, all of which we have considered. While we shall not attempt to discuss them, we have concluded that none of them point out any reversible error, and the same should he overruled.

It therefore follows that the judgment of the trial court should be affirmed; and it is so ordered.

       — ?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes