On Motion fo-r Rehearing.
The hearing below was upon exceptions and a plea in abatement in the nature of an exception, in that it was based on matters appearing in the petition. The trial court was of the opinion that for reasons set forth in the exceptions and the plea in abatement, the petition stated no basis for the granting of the relief sought foy appellants and accordingly dismissed the suit. Upon review we necessarily accepted the allegations of the petition as true. See, Article on Pleading, 8 Tex.Jur., 10 year Supp., 200, §§ 139, 140 and '141. We make this statement in deference to appellees’ request that the original opinion be clarified in this particular. No disputed fact issues are involved upon this appeal.
In Noguess v. Peveto, Tex.Civ.App., 297 S.W. 1100, 1101, it is said that: “Appellants have filed no brief in this cause challenging the judgment appealed from on any ground, and, so far as we have been able to discover, there is no fundamental error apparent upon the face of the record for which we would be authorized to reverse this judgment. It has therefore been ordered that the judgment be affirmed.”
The opinion specifically states that the record was examined for fundamental error. The court necessarily passed upon the authority of citizens and taxpayers to maintain the suit as this was, a matter apparent upon the face of the pleadings. The case of Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979, contains a discussion of the difference between the concept of “fundamental error” before and after the adoption of the 1941 Rules of Civil Procedure.
We adhere to the views set forth in our original opinion and appellants’ motion for rehearing is overruled.