Laughlin v. Smith Bros.

294 S.W. 915, 1927 Tex. App. LEXIS 312

• Court: Court of Appeals of Texas
• Decided: April 8, 1927
• Docket: No. 1527.
• Status: Published

Opinion

WALKER, X

(after stating the facts as above),. Prom the quoted sections of the charter of the city of Port Arthur, the city had no authority to issue the certificates sued on in this case. Prom the terms of the charter itself it is clear that the certificates provided for therein could be collected only through the due assessment and collection of taxes, which, as appellee’s petition discloses, were not the conditions of the certificates herein involved. It may be that the charter of the city of Port Arthur has been amended since 1911, but no such presumption can be indulged against the allegations of this petition, for the charter of 1911 is specially pleaded as the authority for these certificates and as the source of the lien as foreclosed. The authorities for the involuntary obligation sued upon here must necessarily be found in the provisions of the city charter, and, as the petition on its face directly excludes the authority under which these certificates were issued, they are void on the face of the petition and constitute neither a personal obligation against appellant nor a lien on his property.

Appellant has questioned the sufficiency of the petition in other respects, but, as these objections may and should be met upon another trial, we do not further discuss them. Appellee has moved to strike out appellant’s brief on the ground that it was not filed in time. This motion is well taken, and the brief is accordingly stricken. But, since the assignments go to the very foundation of the judgment rendered and are fundamental in their nature, the errors assigned must be reviewed. Reversed and remanded.