McCarthy v. City of Denison

Appellee, the city of Denison, a municipal corporation operating under a special charter, brought this suit for the use and benefit of the Kaw Paving Company, a corporation, against C. C. McCarthy, appellant. The suit was predicated upon five special assessment certificates issued by the city under a contract with the paving company to cover the cost of paving in front of live separate lots owned by appellant and fronting on North Houston street and West Morton street in said city. The improvement certificates bore interest at the rate of 8 per cent. per annum, and aggregated the principal sum of $3.569.41. Appellee, by appropriate allegations, also sought to recover a reasonable attorney's fee and to foreclose an improvement lien against the said lots. There was a jury trial, but to the decision of the jury was submitted only the question of the amount of a reasonable attorney's fee, which the jury found to be the sum of $371.10. The court thereupon rendered judgment for $3,720.32 as the amount of the principal and interest of the said improvement certificates, and the additional sum of $371.10 as attorney's fee, together with a foreclosure of the alleged liens. Appellant duly filed an amended motion for a new trial, in which he made the assignments of error that are hereinafter discussed. The court overruled this motion for a new trial, and appellant has duly perfected his appeal to this court. Appellee's petition was sufficient in all respects to sustain the judgment rendered. Appellant answered by a general demurrer and a general denial Except on the issue of an amount that would constitute a reasonable attorney's fee, appellee supported the allegations in its petition only by the introduction in evidence of the said five improvement certificates, and relied on the recitals in said certificates to the effect that all the necessary proceedings had been taken by appellee previous to issuance of these certificates to fix a valid indebtedness against appellant and a valid lien against each of his said pieces of property to sustain the allegations in its petition. It was the theory of appellant that these necessary facts could not be established by the recitals in said certificates, but that independent proof of appellee's acceptance of chapter 11, title 22, of the Revised Statutes of Texas, in the form and manner therein prescribed for such acceptance, and that the performance of all other proceedings therein prescribed as prerequisites to creating the indebtedness and lien against appellant must be shown to have been had by independent proof before the law could give any legality to such certificates, and before they could be introduced in evidence. In line with such contention appellant did not offer any evidence, and, upon the conclusion of appellee's case, requested peremptory instruction in his favor, and duly excepted to the submission to the jury of the issue of a reasonable attorney's fee. This contention of appellant is duly presented by various assignments of error supported by propositions of law. Appellant's contention is unquestionably correct, unless the special rule of evidence for cases of this character prescribed in article 1011 sustains the action of the court in rendering judgment on the evidence alone of the said certificates. Article 1011, after clothing the governing body of a city with power to cause to be issued in the name of the city assignable certificates declaring the liability of owners of property abutting on the street improved for the payment of the assessments made against the property and the owner for that purpose, declares a special rule of evidence to be observed by the courts in the trial of such cases as follows: *Page 831 "If any such certificate shall recite that the proceedings with reference to making such improvements have been regularly had in compliance with law, and with all prerequisites to the fixing of the assessment lien against the property described in said certificate, and the personal liability it shall be prima facie evidence of the facts so recited, and no further proof thereon shall be required in any court." The certificates in the instant case recited that all the proceedings with reference to making such improvements had been properly had in compliance with the charter and ordinances of the city of Denison, and in compliance with chapter 11, title 22, Revised Statutes of Texas, and that all prerequisites to the fixing of the lien and claim of personal liability evidenced by said certificates had been performed; that said paving and improvements had been completed in compliance with the terms of said contract, and had been acknowledged by the city of Denison. It will thus be seen that each certificate recited that all those steps and proceedings necessary to fix the indebtedness and the lien against appellant and his property had been duly performed by appellee. In other words, the recitals in the certificate included all those things that appellant contends should have been established by evidence independent of the said certificates. These improvement certificates are instruments in writing, solemnly executed by public officials under their oath of office and in their official capacity They represent an indebtedness of the owner of property for a valuable consideration given to him in the street improvement made for the benefit of his property and secured by a lien on his said property. They are permitted by law, prima facie, to speak their own validity, because, under the law, they can only be issued by the lawful authorities of a city, after such city, through its governing body, has accomplished every proceeding and legally performed every prerequisite prescribed by law as necessary to their validity. Acting on the presumption that public officials would perform their duty and faithfully observe the law in the issuance of such certificates, the Legislature has declared through said statute that in a suit to recover the indebtedness and foreclose the lien evidenced by these certificates all courts shall receive the recitals in said certificates as prima facie evidence of the facts therein stated. The statute does not make the recitals in the certificates conclusive of the facts stated therein, but only that their evidence makes such a case as will warrant a Judgment in favor of the plaintiff, unless defendant is able by rebuttal evidence to make an issue as to the correctness of the recitals in said certificates. The verity of all the facts shown to exist in the recitals in these certificates rests in the public records of appellee, and were easily accessible to appellant, if these records could serve his purpose to disprove any of the recitals in the certificates. In its last analysis the special rule of evidence prescribed by this statute is simply a presumption of law that public officials have performed their official duty if they certify to such fact. It is argued that, because article 1016 of the Revised Statutes provides a special manner in which proof of the fact that a municipality had accepted the benefits of said chapter 11, title 22, may be made, it necessarily follows that the recitals in the improvement certificates "that the proceedings with reference to making such improvement have been regularly had in compliance with law and that all prerequisites to the assessment lien" etc., do not include the "proceeding" adopting the benefits of said chapter, and do not refer to such adoption as one of the prerequisites to fixing the lien. Of course, in making such contention it is not intended to convey the idea that the adoption of the benefits of said chapter is not a proceeding referring to the making of the improvement and is not a necessary prerequisite to the fixing of the lien and the indebtedness evidenced by the certificates, yet this is the logical result of such an argument. The language of this provision of article 1011 is broad enough to include every proceeding that is a necessary prerequisite to fixing a valid indebtedness and lien, and to make the exception contended for would be to limit the broad significance of the language employed by the Legislature to the extent of making an exclusion from its provision. This exclusion is not warranted by the broad language of the statute. It is not mandatory on the governing body of a municipality to issue these certificates, and, in a suit against a property owner in which no certificates have been issued, this proof would have to be made. Other conditions might arise requiring this proof to be made, and so the Legislature, without repealing any of the provisions of article 1011, merely enacted an additional special rule of evidence prescribing another manner of making this proof. A clear and simple construction of this provision of article 1011 is that it was intended by its enactment to make these certificates, when issued in the manner prescribed by law, prima facie evidence of the existence of both the indebtedness and lien which they evidence, and we so construe it. Appellant contends that, because it is necessary to allege in a petition in a suit to recover the amount of a special assessment certificate, independent of the recitals in the certificate, the performance of every prerequisite made necessary by the law to fix the indebtedness and lien, it necessarily follows that proof must also be made independent of the recitals in the certificate. The vice in *Page 832 this reasoning is that the provision of said article 1011 applies only to evidence and does not purport to give a special rule for pleading. This is the effect of the two decisions holding that a petition in such a suit only alleging the issuance of the certificate and the recitals therein made is insufficient and subject to a general demurrer. Wooten v. Texas Bitulithic Co. et al. (Tex.Civ.App.) 196 S.W. 601; Blair v. City of Houston (Tex. Civ. App) 252 S.W. 882. It appearing that the special assessment certificates in this case had been regularly issued by appellee after the completion of the work of street paving, it is held that the special rule of evidence provided for in article 1011 authorized their admission in evidence and established a prima facie case in behalf of plaintiff. Appellant offered no evidence in rebuttal of this prima facie case. There was no issue in respect thereto to be submitted to the jury, and the trial court was authorized to enter the judgment against appellant for his pro rata cost of the pavement as shown by the said assessment certificates. It is also held that the court was warranted in entering the judgment against appellant for the amount of attorney's fee found by the jury. Finding no reversible error, the case is affirmed. Affirmed.