This is a writ of error sued out by Fenstermaker from a judgment obtained by the city of San Antonio against him for taxes in the sum of $5,651.02. The city of ■San Antonio sued for taxes due by Fenster-maker, and sought to foreclose a lien on lot No. 2, in new city block 110, on north side of West Commerce street, and made Alexander Joske a party to the foreclosure on the ground that he had acquired title to the lot described with notice of the lien of the city for taxes. Exceptions by Joske were sustained on the ground that the claim against him was barred by limitation of two years, and he was dismissed from the suit. Fenstermaker made default, and a judgment for $5,651.-02 was rendered, but the court .declined to foreclose a lien on the property. An interlocutory judgment by default was rendered against Fenstermaker on June 2, 1925; Anal judgment being rendered on June 22, 1925. The writ of error was filed on December 18, 1925, and afterwards, on December 22, 1925, fourteen assignments of error were filed.
The plaintiff in error proceeds in filing and considering his assignments of error as though he had been present at the trial and saved exceptions to certain matters. In a ease of judgment by default no assignment can be presented for consideration, except one that goes to the very foundation of the action, and destroys the vitality and effectiveness of the judgment. If a petition fails to state a cause of action, there would be no basis for the judgment, and the error would be fundamental, and would be considered by an appellate court, in the absence of any assignment of error. It follows that,' if there were no assignments filed herein, this court would inquire into the sufficiency of the petition to sustain the judgment.
The petition alleges the corporate existence of the city of San Antonio under a special charter, the passage of an ordinance declaring the necessity for improving West Commerce street between Main Plaza and Santa Rosa lavenue by straightening and widening it to a certain width, the necessary details such as the city engineer’s plats and specifications, the estimated cost of the improvement, the amount to be paid by the city and the respective owners of property along the street, the assessment of the amounts due by each owner of abutting property, the giving of notices and all the other essentials required by law, and the amount for which plaintiff in error was indebted on the assessment, and the performance and observance *884of all the requirements of the law to fix the lien on the property of plaintiff in error and. create a personal liability on his part for the amount assessed against him. Every in-tendment must be indulged in favor of the sufficiency of the petition, and under that rule a general demurrer would not be efficacious against the petition.
The failure of the petition to allege a cause of action would be the only matter of a fundamental nature presented by the record in this case, and plaintiff in error cannot be heard to present the other matters in his propositions and writ of error sued out under a judgment by default. He was duly summoned to appear more than four months before the appearance day, on which the interlocutory judgment by default was taken against him. All his complaints are either in the nature of special exceptions or in regard to errors that could not for the first time be presented in an appellate court. He delayed the application for a writ of error until within three days of the time when his right to apply for the writ would expire, and, under the circumstances, cannot expect to gain anything by prosecuting the writ of error except time.
Plaintiff in error is in no position to claim anything by reason of limitation, because the plea of limitation is a personal privilege, and cannot avail a'defendant, unless he pleads.it.- The plea of limitation of Alexander (Joske could be of no avail to plaintiff in error, but rather accentuates his failure to plead it in the lower court. The fact that the lien was barred as against a purchaser from plaintiff in error could not release him from personal liability.
While it may be true that there is no direct allegation that the street was widened and straightened, the facts alleged lead to but one conclusion, and that is that the work was done, and that plaintiff in error was liable for his assessment of the cost of the improvement.
The judgment is affirmed.