Texas Bitulithic Co. v. Henry , 1917 Tex. App. LEXIS 800 ( 1917 )

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.