Alderete v. City of El Paso

WALTHALL, Justice.

On March 18, 1930, the city of El Paso, Tex., sued Frank G. Alderete, appellant herein, for the taxes alleged to be due on lots Nos. 22 and 23, in block No. 1, Magoffin Homestead addition to the city of El Paso, El Paso county, Tex., and in said petition and the exhibit attached thereto stated the several years for which the taxes were due and delinquent, from the year 1915 to and including each year thereafter to the year 1928, both years included, and stating therein the penalty and interest due for each year, the total amount of the taxes stated to be due is $1,-259.34; the total amount sued for being $2,-259.57. The record shows the issuance and service of citation. Judgment by default was taken in favor of the plaintiff, city of El Paso, appellee here, in the total sum of $2,259.57. In said judgment the plaintiff’s tax lien was foreclosed, and thereafter, in due time, order of sale was issued, the property was sold, and bought in by the city of El Paso for the amount of the judgment.

On October 23, 1933, the plaintiff, city of El Paso, applied to the judge of the district court wherein said case had been tried and judgment entered for a writ of possession and an order, to show cause.

On November 2, 1933, plaintiff, city of El Paso, filed in said cause what is designated a • “trial amendment” to an application to a writ *720of possession, requesting, in the alternative, a writ of assistance.

To said application to show cause appellant filed his “original answer” in which he alleged that “the judgment in the case was void for the reason that the original citation issued and served upon him in- the case alleged that the defendant owed taxes in the amount of $1,256.34, and the judgment entered in the case was for the sum of $2,367.33, which is null and void, also the amounts due for each year is not shown in the citation. Wherefore, premises considered, this defendant prays that the notice to show cause be denied.”

■ On November 2, 1933, the court entered an order granting a writ of assistance commanding the sheriff cf- El Paso county “to forthwith enter upon and take possession of the above described property and deliver the possession of the same to the plaintiff herein.”

Appellant,’ in due time, filed assignments of error and gave a supersedeas bond, and the case is here on appeal.

Opinion.

Appellant presents several propositions questioning the sufficiency of the original citation to support the judgment rendered.

We have concluded from the record presented here that no appeal to this court lies from the interlocutory order of the trial court granting the application for a writ of assistance, and for that reason this court is without jurisdiction.

The appeal is dismissed.