The opinion
On Motion for Rehearing.
Two grounds are urged by appellee in her motion for rehearing why the order and judgment of reversal should be set aside and the judgment of the trial court affirmed, to wit:
(1) That the city of Ft. Worth failed to follow the necessary procedure to fix a lien under a reassessment proceeding.
(2) That this court erred in holding that the record failed to support the conclusion that an unreasonable delay had been shown in making such reassessment after appellant had discovered, or by the exercise of reasonable diligence should have discovered, the error in the original assessment.
We will .discuss these two grounds urged in the order in which they are presented.
1. Pursuant to the authority given in the city’s charter (chapter 14, § 13), quoted in the original opinion, the city commissioners by ordinance (chapter 4, Revised Ordinances) provided the rules and regulations to be followed and observed to establish a legal reassessment. Said ordinance provides that: (a) Before any such reassessment shall be made the board of commissioners shall by resolution declare the necessity therefor and the name or the names of the owners affected thereby; and shall give a description sufficiently identifying the property to be reassessed, and the nature of the defect or irregularity to be corrected; (b) that said resolution shall set a time and place for a hearing to be given the owner, and provide for notice to be given as in case of original assessment; (c) that the hearing shall be had, and that any objections to such reassessment shall be given in writing, etc.
It is shown in the statement of .facts that a petition was filed by the Texas Bitulithic Company with the board of commissioners asking for reassessment of certain property described, including the lot under' consideration, and setting up that there was an error in the description of this lot and in the name of the owner, and furnishing a correct description and the correct name of the owner, appellee here. This petition was granted by the board of commissioners, and the city engineer was ordered to make a correct report of such property tó be reassessed, together with the correct names of owners. The engineer’s report, giving such correct information as to description of the property and the names of owners, with estimate of cost of paving per front foot, was approved by the board in its resolution, and notice of hearing was given; said resolution reciting “said hearing to be held before the board of' commissioners of the city of Ft. Worth, on the 19th day of January, 1915.” This notice is shown to have been published in the Star-Telegram, a newspaper of general circulation published in Ft. Worth, for five days ending January 11, 1915. It is further shown that a hearing was had in pursuance of the said notice, and that appellee by her attorney appeared before the board and contested in writing such proposed reassessment as to appellee’s property, and that thereafter the reassessment as to appellee and her property was by ordinance made. We are of the opinion that under the showing made the reassessment proceeding constituted a legal and substantial compliance with the provisions of the charter and tne ordinances relating to reassessment, anu that no successful attack has been made against the same. The charter and ordinance of the city provide that the *224 meetings of the board of commissioners shall be held at the city hall, unless otherwise designated, and at 9 o’clock a. m. Hence the omission to designate the place of meeting other than at Et. Worth, and the failure to designate the hour of same, would be supplied by such charter provision and ordinance.
Moreover, we think that in view of the written agreement between counsel, quoted in the original opinion, as to the existence of the defects as to description and the name of the owner, and in view of the fact that such error of name was called to the attention of the board of commissioners in the petition for reassessment filed by the Bitulithic Company, and in view of the resolution reciting, in its preamble, the necessity for reassessment and the reassessment of this particular property in the name of appellee, and in view of the fact that in her written contest and protest before the board of commissioners she failed to present any question as to the regularity of the proceedings here assailed, any possible irregularities or defects in the proceedings or reassessment were waived by appellee. In the amended petition filed by plaintiff in the court below, and on which she went to trial, no allegations were contained as to the irregularities in the proceedings by and before the board of commissioners in the respect urged in this motion. Therefore we conclude that she is in no position to assert such alleged irregularities at this late date.. Gallahar v. Whitley, 190, S. W. 757, writ denied.
2. As to the second ground, we are of the opinion that the burden of proof was on the appellee, plaintiff below, to show that defendant’s claim was in. the nature of a stale demand, and that defendant had been guilty of an unreasonable delay in having the reassessment made. Petitioner sought to have the reassessment and the certificate issued thereon declared null and void, and the defendants enjoined from attempting to reassess the property involved, or to fix any lien thereon, or any personal liability against the owner. Hence she assumed the laboring oar. The fact that appellee was made one of the parties defendant. in the original suit against A. L. Jackson et al., filed in the seventeenth district court, October 14, 1912, would not, in itself,' in our opinion, support the conclusion that at that time the city or the Bitulithic Company had knowledge of who was the true owner of the property, and that the assessment against said Jackson as owner was an error. The original petition is not set out in the transcript, nor is it set out in the statement of facts. Hence we are not advised as to the reason shown for making Mrs. Henry a defendant in said suit. The improvement certificate on which the first suit was predicated was issued against Jackson alone. Two other persons named were made parties defendant in this original suit; but as to them, likewise, there is no evidence or showing as to the reason for their being made parties defendant. Against these two other parties no assessment or reassessment seems to have been ever sought. Since the evidence on this controlling issue of whether appellants were guilty of an unreasonable delay in not seeking sooner a reassessment was not developed in the trial court, and since without such evidence the judgment of the trial court cannot, .in our opinion, be sustained, we are of the opinion that our original judgment was the proper one to be rendered.
The motion for rehearing is overruled.