Arnold v. Fort Worth & D. S. P. Ry. Co.

• Decision Date: 27 June 1928
• Docket Number: (No. 3034.)
• Citation: Arnold v. Fort Worth & D. S. P. Ry. Co., 8 S.W.2d 298 (Tex. App. 1928)
• Parties: ARNOLD v. FORT WORTH & D. S. P. RY. CO.
• Court: Texas Court of Appeals

8 S.W.2d 298

ARNOLD v. FORT WORTH & D. S. P. RY. CO.

(No. 3034.)

Court of Civil Appeals of Texas. Amarillo.

June 27, 1928.

Appeal from Briscoe County Court; O. T. Tipps, Judge.

Condemnation proceeding by the Fort Worth & Denver South Plains Railway Company against Tom C. Arnold and others. From the judgment of the county court on appeal from award of special commissioners, named defendant appeals. Reversed and remanded for new trial.

Joiner & Cook, of Plainview, for appellant.

J. E. Daniel and Ernest Tibbets, both of Silverton, for appellees.

RANDOLPH, J.

This proceeding was instituted by appellee by the filing of its petition with O. R. Tipps, county judge of Briscoe county, praying for the appointment of special commissioners to assess the value of certain lands sought to be condemned for the uses and purposes of the appellee, a railway corporation.

In the petition, the land sought to be condemned was described, and the petition contained the allegations necessary to show the right to condemn. The county judge appointed three commissioners who were duly sworn, and who proceeded, after a hearing, to assess the damages for the land taken and also damages to the residue of the land not taken, and awarded a lump sum of $3,000 in favor of Tom C. Arnold, appellant, and J. M. Arnold. Appeal was then taken to the county court from the award of the commissioners by the Arnolds, and the questions presented by this appeal involve the judgment of the county court, as stated below.

The case was tried before a jury, and the county court rendered judgment in favor of the Arnolds in the sum of $1,305 for the value of the land actually taken and for $550 damages to the land not taken. From this judgment, Tom C. Arnold has appealed to this court.

The two questions presented on this appeal are: First, that the judgment in the county court was rendered in the absence of said Arnold and his counsel and without notice to them; and, second, that the judgment failed to apportion the damages between J. M. Arnold, who owned the life estate, and Tom C. Arnold, owner of the "fee-simple title."

The facts upon which the first contention is based are as follows:

After the appointment of the commissioners, in lieu of the notice given to them under the statute, two separate waivers were filed by the Arnolds, one signed by C. D. Wright, attorney for J. M. Arnold, and the other signed by R. C. Joiner, attorney for Tom C. Arnold. When the commissioners made their award, the defendants filed their written objections to same on the ground that such damages were insufficient and do not compensate the defendants for the lands and damages. This objection was signed: "Tom C. Arnold and J. M. Arnold, by C. D. Wright and Joiner and Cook, Attorneys."

On the appeal to the county court, trial was had and judgment rendered, as stated.

The occurrences leading up to and at the time of the trial are related at length in the affidavit filed in connection with the motion for new trial, and in the evidence taken at the time of the hearing of the motion.

R. C. Joiner, in his affidavit, testifies as follows:

"I am the senior member of the firm of Joiner & Cook, of Plainview, Texas, and was employed by Tom C. Arnold, who resides at Mt. Enterprise, Tex., to represent him in the above styled and numbered cause, and did represent him in the matter before the special commissioners, and as his attorney filed objection to the award and perfected the appeal to the county court of Briscoe county, Tex., and was representing him on said appeal, as his only representative. That just prior to the convening of said county court, Judge Tibbets, one of the attorneys for plaintiff, came to my office in Plainview, Tex., and asked me about fixing a date for the trial of the case in county court. I told him that the district court would be in session on the same date as that of the county court in Briscoe county, and that we had cases for the first week and felt certain that one certain cause would be set for the second week, and Judge Tibbets stated that it looked like the Arnold case would have to be passed until some time in the third week, to which I made the statement, `Why make any setting at all; can't we settle this on the basis of the award net to Arnold?' Judge Tibbets said he believed that his client would be willing to pay the $3,000 and costs. To this I stated that my client would owe as a balance of fee $100, and if he would agree to pay this amount in addition to the costs and the $3,000 that I felt certain that the case could be settled, and Judge Tibbets stated that Mr. Bain was the main one that he would have to see, as he was managing the affairs of the committee. I then said for him to see Mr. Bain and his clients and let me know, and, in case no settlement was had, that we would fix a date for the trial. I did not know of any setting of case, and was awaiting for word from Judge Tibbets as to the outcome of the proposition of settlement, and since the railway company had already taken possession of the land, I did not know that any one was wanting to rush the trial, and was very much surprised when I received word that a trial had been had and that I was not informed of the setting. And in less than one hour and thirty minutes, I was in Silverton making inquiry as to the procedure. Had I known of the setting of this case I would have been on hand and looked after the interest of my client, and the only reason I was not present was because of the fact that I was waiting to hear from Judge Tibbets concerning the agreement of settlement."

C. D. Wright, one of the attorneys, testified by affidavit as follows:

"My name is C. D. Wright. I am one of the attorneys of record in this cause. I was here in court on the 21st day of November, 1927, when the court called the docket, and agreed in open court to the setting of this cause on Tuesday, December 6, 1927, which was Tuesday of the third week of court. On Tuesday, December 6, 1927, when the court called this cause for trial, I announced ready for trial for the defendants. I defended and presented all the issues for all defendants to the best of my ability. In order to secure the opening and closing of the introducing of evidence and the argument, I made the admission required by rule 31. One of the plaintiff's attorneys asked that it be written and filed, and the court ordered the court to stand at ease, while this matter was discussed, and finally the court ruled that the admission must be filed at once or the request for the opening and closing would not be allowed. In the interests of time, I asked that the court make a notation on the docket, and that I would file it later, as of the date it was supposed to be filed. He accordingly, under my direction, made the following notation on the docket: `12/6/1927. Defendants filed admission under rule 31, assuming burden of proof and evidence, admitting cause of action, lawful proceedings and entry, and being allowed to open and close.'

"I did not limit...