
    TYPER & KNUDSON v. TOM et al.
    (Court of Civil Appeals of Texas.
    Oct. 15, 1910.)
    1.Taxation (§ 628) — Delinquent Taxes— Actions — Costs — Constbuction of Statute.
    Sayles’ Ann. Civ. St. 1897, art. 5232i, provides that the county attorney shall represent the state and county, in suits against delinquent taxpayers, and that the compensation of such attorney shall not be greater than $3 for the first tract in one suit and $1 for each additional tract, if more than one tract be embraced in the same suit, and that other specified officers shall be entitled to certain costs and fees for duties performed by them in connection with such suit. Held, that the costs provided for would be assessed in the same manner where a delinquent taxpayer paid his taxes without a suit therefor, as' where a suit had been instituted to collect them.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 981; Dec. Dig. § 528.]
    2. Taxation (§ 528) — Delinquent Taxes— Actions to Collect — Costs.
    Under the statute, where delinquent taxes were owing on several lots owned by the same person, unimproved and situated in the same town, the lots should be grouped into one group and the costs, upon payment, taxed against them collectively, limiting each officer performing a service mentioned in the statute to one charge for the entire group; and where the lots had been purchased in four groups from four different persons, if any of the costs are legally taxable against the former owner, the rule for taxing the costs against all the lots collectively would apply to the group of lots purchased from such person, and such costs should be taxed against the group as a whole.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 981; Dec. Dig. § 528.]
    3. Taxation (§ 543) — Acts to- Recover Costs — Sufficiency of Petition.
    In an action by a delinquent taxpayer to recover costs collected upon payment of the taxes, upon the theory that but one charge should have been made by each -officer performing services enumerated in the statute for all the lots collectively, instead of for each one separately, where plaintiff alleged that a certain sum was the highest sum collected on any one lot and offered to allow defendants a credit for that amount, and alleged that the lots were all owned by plaintiff and were unimproved and all situated in the same town, and alleged the sum total paid the collector and the difference between that sum and the amount averred as the highest sum collected on any one lot, as the amount sued for, the petition was sufficient, though neither the costs alleged to have been wrongfully collected, nor those which defendants had lawful authority to collect, were itemized, nor the names of officers other than the tax collector for whom costs were collected were alleged, nor the amount tendered by plaintiff to the tax collector, nor that the amount legally due was tendered.
    [Ed. Note. — For other cases, see Taxation, Gent. Dig. § 1012; Dec. Dig. § 543.]
    4. Evidence (§ 158) — Best and 'Secondary Evidence — Payment of Taxes.
    In an action by a delinquent taxpayer to recover costs alleged to have been illegally exacted upon payment of the taxes, parol testimony as to the amount of costs paid to the collector is admissible.
    [Ed. Note. — For other cases, see Evidence, Gent. Dig. § 473; Dec. Dig. § 158.]
    5. Evidence (§ 334) — Documents — Certificates — Payment of Taxes.
    In such an action, redemption certificates from the office of the Gomptroller of the state, duly authenticated, purporting to show the amount of costs paid, were admissible in evidence under Sayles’ Ann. .Civ. St. 1897, art 2308, making the certificate of such officer as to facts contained in papers on record in his office admissible in evidence in all cases in which the originals would be evidence, and article 2316, providing that the certificate of the Comptroller of the payment of taxes, as shown by the records of his office, shall be admissible in evidence to prove such fact.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1266-1272; Dec. Dig. § 334.*]
    6. Evidence (§ 333) — Documents—Tax Rec-oeds.
    To show the amount of costs paid by plaintiff, the official stubs of tax receipts found in the county collector’s office, which were prepared under his supervision, showing the amount of costs collected by him on the property in controversy, were admissible.
    TEd. Note. — For other cases, see Evidence, Cent. Dig. § 1251; Dec. Dig. § 333.]
    Appeal from District Court, Martin County ; S. J. Isaacs, Judge.
    Action by Typer & Knudson against Charley Tom and others. Judgment for defendants, and plaintiffs appeal.
    ¿Reversed and remanded.
    R. N. Grisham and T. F. Grisham, for appellants. Jno. B. Littler, for appellee Konz. A. L. Green and Jno. B. Howard, for ap-pellee Tom.
    
      
       For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DUNKLIN, J.

J. L. Typer and Jacob Knudson, composing the partnership firm of Typer & Knudson, sued Charley Tom, tax collector of Martin county, to recover $848.-50, which plaintiffs alleged Tom had wrongfully collected of them as costs on certain unimproved lots situated in the town of Stanton and owned by the plaintiffs. At the instance of defendant Charley Tom, Paul Konz, county clerk of Martin county, was made a party defendant upon the allegation that Tom paid over to Konz a portion of the costs collected, and Tom prayed for judgment over against Konz in the event of a recovery by plaintiffs. From a judgment in favor of defendants, plaintiffs have appealed.

According to the allegations in the petition no taxes had been paid on the lots for several years immediately preceding the year 1907, and during the latter year plaintiffs were by the collector required to pay $875.80 as costs, by reason of such delinquencies. It was further alleged that the lots had never been sold under judgment, nor otherwise, for said delinquent taxes, interest, penalties, and costs, and that no suit had been instituted by the state or county to recover the same. The contention presented in the petition was that the only costs that could have been lawfully demanded by the collector under the circumstances already mentioned were the fees allowed the tax collector and the county clerk by Sayles’ Ann. Civ. St. 1897, art. 5232i, which reads:

“The county attorney, or district attorney in counties where there is no county attorney, shall represent the state and county in all suits against delinquent taxpayers that are provided for in this chapter, and all sums collected shall be paid immediately to the county collector.

“In no ease shall the compensation for said county attorney be greater than three dollars for the first tract in one suit, and one dollar for each additional tract, if more than one tract is embraced in same suit to recover taxes, interest, penalty, and costs; provided, that those county attorneys who may have heretofore or may hereafter institute said suits shall be entitled to an equal division with their successor in office of the fees allowed herein on all suits instituted by them, where the judgment had not been obtained prior to the vacation of their office. The collector of taxes, for preparing the delinquent list and separating the property previously sold to the state from that reported to be sold as delinquent for the preceding year, and certifying the same to the commissioners’ court, shall be entitled to a fee of one dollar for each correct assessment of the land to be sold, said fee to be taxed as costs against the delinquent. The sheriff shall be entitled to a fee of one dollar for selling and making deed thereto to each purchaser of land that he sells under judgment for taxes, which fee shall be taxed as costs of suit, and the district clerk shall be entitled to a fee of one dollar and fifty cents in each case, to be taxed as costs of suit. And the county clerk, for making out and recording the data of each delinquent assessment, and for certifying the same to the commissioners’ court for correction, and for noting the same in the minutes of the commissioners’ court and for certifying the same, with corrections, to the comptroller, and noting the same on his delinquent tax record, shall receive the sum of one dollar, to be taxed as costs against the land in each suit; provided, that in no case shall the state or county be liable for such fees, but in each case they shall be taxed as costs against the land to be sold under judgment for taxes and paid out of the proceeds of sale of same after the taxes, penalty, and interest due therebn to the state are paid; provided, that where two or more unimproved city or town lots belonging to the same person and situated in the same city or town shall all be included in the same suit and costs, except those of advertising, which shall be twenty-five cents for every ten lots, or any number less than ten, taxed against them collectively just as if they were one tract or lot; and, provided, further, that where suits have been brought by the state against delinquents to recover tax due by them to the state and county, the said delinquent may pay the amount of the tax, interest, penalties, and all accrued costs to the county collector during the pendency of such suit, and the county attorney shall receive as compensation therefor two dollars for the first tract and one' dollar for each additional tract embraced in said suit; and the district clerk shall receive only one dollar, and the sheriff only one dollar in each case; but these fees shall be in lieu of the fees provided for such officers where suits are brought as hereinbe-fore provided.”

The amount of costs paid by plaintiffs on each of the lots was specifically alleged, and according to the allegations $27.30 was the highest amount charged against any one lot. The contention was made that as all the lots were owned by the plaintiffs and were all unimproved and situated in the same town, they should have been grouped into one group and the costs taxed against them collectively ; thus limiting each officer performing a service mentioned in the statute above quoted to one charge for the entire group, which in no event could be a greater sum than $27.30.

Appellees insist that the provision of the statute made the basis of the contention just noted, by its terms, has application when a suit has been instituted to collect the delinquent taxes, but has no application when such taxes are paid without a suit, and that the construction invoked by appellants would be unreasonable, in that its effect would be to impose upon the tax collector the duty to examine the deed records, or else procure abstracts of all titles to real estate in order to determine the names of the owners thereof. We have been .cited to no statute, and have found none, other than the statute above quoted, which allows the fees enumerated in that statute. To hold that a delinquent taxpayer would be required to pay a greater sum as costs if he pays delinquent taxes without a suit, than he would be required to pay if suit should be instituted, would be to place a premium upon a further delay in such payments. This would be contrary to sound public policy and an unjust discrimination against the diligent taxpayer in favor of one who refuses to pay, unless forced to do so by the courts. • In enacting that statute, we think the Legislature intended to extend the same benefits to one who settled his delinquent taxes without the necessity of a suit to enforce their collection, as were expressly given to a defendant in a suit to collect the same..

Several exceptions to plaintiffs’ petition were sustained, and upon these rulings of the trial court appellants have assigned error. These exceptions were, that neither the costs which plaintiffs alleged were wrongfully collected, nor those the defendants had lawful authority to collect, were itemized; that the names of officers other than the tax collector for whom costs were collected were not alleged, and that there was.no allegation of the amount tendered by plaintiffs to the tax collector, or that they tendered the amount legally due. Notwithstanding the plaintiffs’ failure to amend after the exceptions were sustained, the suit was not dismissed, but heard and determined on its merits, and it does not seem that plaintiffs were denied the privilege of proving their cause of action by reason of lack of proper pleadings. However, in view of another trial, we deem it proper to say that we think the court erred in sustaining the special exceptions noted above. Plaintiffs alleged that $27.30 was the highest sum collected on any one lot, offered to allow defendants a credit for that amount, and alleged that the lots were all owned by them, and that they were unimproved lots and all situated in the town of Stanton. Further, the total sum paid the collector was alleged, and the difference between that sum and $27.30; the highest sum collected on any one lot, was the amount sued for. No claim was made of any illegality in the costs collected, except upon the theory that but one charge should have been made by each officer performing services enumerated in the statute quoted for all the lots collectively.

Upon the trial, plaintiffs proposed to prove by parol testimony how much costs they paid to the collector. Numerous objections were urged to such proof by the defendants and sustained by the court, some of which were that the questions were leading; others that the tax receipts and tax records were the best evidence. These) rulings were erroneous. McDonough v. Jefferson Co., 79 Tex. 535, 15 S. W. 490.

Plaintiffs also offered in evidence redemption certificates from the office of the Comptroller of the state, duly authenticated, purporting to show the amount of costs paid on the lots, but the evidence was excluded on the objection that they were secondary evidence and not shown to have been signed by defendant Tom; that the costs collected, shown in the certificate, were not itemized, and because not specifically alleged in the petition. This evidence should have been admitted. Sayles’ Ann. Civ. St. 1897, arts. 2308, 2316; Holmes v. Coryell, 58 Tex. 680.

We are of opinion, further, that the court erred in excluding the official stubs of tax receipts found in defendant Tom’s office, which were prepared under his supervision, showing the amount of costs collected by Tom on the property in controversy. Webb County v. Gonzales, 69 Tex. 455, 6 S. W. 781.

The lots owned by plaintiffs at the time of payment of costs consisted of four groups which had been purchased from four different individuals. If it be shown upon another trial that any costs collected against any group of lots were legally taxable against the former owner, then as to such costs the rule for taxing the costs against all the lots collectively, as fixed by the statute above quoted, would apply to that group. This theory of right to recover was presented in plaintiffs’ alternative plea.

For the errors indicated, the judgment of the trial court is reversed, and the cause remanded for another trial.  