Delk v. City of Dallas ( 1977 )

560 S.W.2d 519 (1977)

Mark DELK, Appellant,
v.
CITY OF DALLAS, Appellee.

No. 8518.

Court of Civil Appeals of Texas, Texarkana.

December 27, 1977.

Mark Delk, Dallas, for appellant.

Lee E. Holt, City Atty., Jerry T. Steed, John E. Kirby, Asst. City Attys., Dallas, for appellee.

ODEN, Justice.

The appeal involves the jurisdiction of the 116th Judicial District Court of Dallas County, Texas. Appellee (City of Dallas) instituted suit against appellant (Mark Delk) for Two Hundred Thirty-two and No/100 Dollars ($232.00) delinquent ad valorem personal property taxes and for foreclosure of a tax lien against certain personal property alleged to be of a value in excess of Five Hundred and No/100 Dollars ($500.00). Mark Delk filed a plea to the jurisdiction in which he alleged that the averments in the petition pertaining to ownership of the personal property were false and fraudulently made for the purpose of conferring jurisdiction. It was stipulated at the hearing on the plea to the jurisdiction that Mark Delk did not own the personal property at the time the City of Dallas instituted these proceedings. The plea to the jurisdiction was overruled and judgment was ultimately entered in favor of the City of Dallas in the amount of One Hundred Ninety-four and 48/100 Dollars ($194.48) and for foreclosure of its tax lien against whatever interest Mark Delk might have in the personal property.

In order for the District Court to entertain jurisdiction in a suit to foreclose a lien on personal property the petition must show that either the amount of the debt or the value of the property being foreclosed on is within its jurisdictional limit. Corsicana Independent School District v. Corsicana Venetian Blind Co., 270 S.W.2d 296 (Tex. Civ.App. Waco 1954, no writ). The allegations in the petition should be accepted as true by the trial court in determining a jurisdictional dispute unless it is made to appear by pleading and proof that such allegations were fraudulently made to confer jurisdiction. Corsicana Independent School District v. Corsicana Venetian Blind Co., supra, and cases cited therein.

The City of Dallas alleged in its petition that the value of the personal property to be foreclosed on was in excess of Five Hundred and No/100 Dollars ($500.00). This was within the jurisdictional limits of the District Court. Tex.Const. art. V, Sec. 8. Mark Delk cannot support his plea to the jurisdiction by simply showing he did not own the personal property at the time the suit was filed. He must plead and prove that the allegations pertaining to ownership of the personal property were not only false but also fraudulently made for the purpose of conferring jurisdiction. There is no evidence in the record to support the charge that the City of Dallas made a fraudulent allegation in its petition in order to confer jurisdiction in the District Court, and, under the circumstances, the District Court had to accept such allegations as true for purposes of determining jurisdiction.

Mark Delk specially excepted to the City of Dallas's petition because it did not specify the statute, charter provision or other legal source which enabled it to assess and/or levy taxes upon his property. The special exception was overruled. The trial court did not err in overruling the special exception because the Dallas Charter is a public act which need not be pled. O'Connor v. City of Laredo, 167 S.W. 1091 (Tex. Civ.App. San Antonio 1914, no writ).

The judgment of the trial court will be affirmed.