Bobbitt v. Gordon

• Citation: 108 S.W.2d 234
• Decision Date: 17 August 1937
• Docket Number: No. 3285.,3285.
• Parties: BOBBITT et al. v. GORDON.
• Court: Court of Appeals of Texas

108 S.W.2d 234

BOBBITT et al. v. GORDON.

No. 3285.

Court of Civil Appeals of Texas. Beaumont.

August 17, 1937.

Rehearing Denied August 17, 1937.

Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.

Suit by Julius Gordon against Robert Lee Bobbitt and others. From a judgment overruling their motion to dissolve a temporary injunction granted to plaintiff, defendants appeal.

Judgment reversed, and injunction dissolved.

A. L. Shaw, of Beaumont, William McCraw, Atty. Gen., and E. W. Easterling, Co. Atty., of Beaumont, for appellants.

Geo. M. Sonfield and Duff & Cecil, all of Beaumont, for appellee.

PER CURIAM.

By judgment dated the 22d day of July, 1937, Hon. Geo. C. O'Brien, judge of the district court of Jefferson county Fifty-eighth judicial district, entered his order overruling the motion of appellants, the state highway commission, Robert Lee Bobbitt, Barry Hines, and John Wood, who compose the state highway commission, Gibb Gilchrist and G. A. Bracher, engineers of the state highway commission, B. B. Johnson, Ben F. Shipley, H. O. Mills, L. Welsh, and Thomas E. Kelly, county judge and county commissioners of Jefferson county, to dissolve a temporary injunction theretofore granted appellee, Julius Gordon, against appellants, and perpetuated the temporary injunction until trial of the case on its merits, restraining appellants and each of them, "their agents, servants and employees from altering, changing and taking any steps, or doing anything in furtherance of altering, changing or relocating said highway 8 and 40 by pass, and from constructing any other highway along and parallel with the west boundary line of the right of way of the Texas & New Orleans Railway Company, or over and across any portion of the property of the plaintiff, Julius Gordon."

The case is before us on appeal from that order; appellants' principal points are that the court erred in overruling their plea to the jurisdiction of the district court to entertain the petition for injunction, to the effect that the matters in controversy were in issue between the same parties in county court of Jefferson county at law in condemnation proceedings, and that the court erred in overruling their general demurrer to the plaintiff's petition upon which the temporary injunction, together with the supporting evidence, was granted.

The following are the facts on the plea in abatement: By petition filed in the county court of Jefferson county at law on the 10th day of May, 1937, the appellants, named in the petition as hereinafter set out, instituted condemnation proceedings against appellee, Julius Gordon, and Mrs. Gladys Price, individually and as independent executrix of the estate of J. B. Price, deceased, to condemn a right of way for public road purposes over and across certain land belonging to Mr. Gordon and against which Mrs. Price held a lien; the land was fully described in the petition from which we quote as follows:

"Now comes the State of Texas, acting herein by and through the Commissioners' Court of Jefferson County, Texas, composed of B. B. Johnson, County Judge; Ben F. Shipley, Commissioner of Precinct No. 1; H. O. Mills, Commissioner of Precinct No. 2; L. Welch, Commissioner of Precinct No. 3; and Thomas E. Kelley, Commissioner of Precinct No. 4, hereinafter called petitioner, and complaining of Julius M. Gordon and Mrs. Gladys Price, individually and as Independent Executrix of the estate of J. B. Price, deceased, hereinafter called defendants, and represents and alleges to the court as follows:

"That B. B. Johnson is the duly elected and qualified County Judge of Jefferson County, Texas, and that Ben F. Shipley, H. O. Mills, L. Welch and Thomas E. Kelly, are the duly elected and qualified County Commissioners of said county. That they all reside in Jefferson County, Texas. That the defendants reside in Beaumont, Jefferson County, Texas, where service of process may be had upon them.

"That the State of Texas is now constructing, reconstructing and laying a State highway, designated as such the Highway Commission of Texas, in Jefferson County, Texas; that such constructing and reconstructing upon said highway is surveyed through, across and upon, and will cross and run through the following described real property, to-wit:" (here follows description of land)

"That in the judgment of said Commissioners' Court, it is necessary, advisable and expedient to occupy, use, and own the land hereinabove described, and to run a road across the same in the manner provided by law, for the purpose of opening, laying, building, constructing and improving State Highway No. 40.

"That for the reasons and purposes above set out, it is necessary that the State of Texas, through the Commissioners' Court of Jefferson County, Texas, acquire, take, hold, occupy, use and own said above described property for the purpose of constructing, direction and maintaining a State highway, designated as State Highway No. 40, and that said Commissioners' Court has attempted to, but cannot agree with said defendants upon the amount to be paid for said land, nor for the damages, if any there be, due said defendants occasioned by the use of said land, but the Commissioners' Court of said County has offered said defendants the sum of Three Thousand ($3,000.00) Dollars for said land, and the damages, if any, which said sum is the reasonable market value of said land and is in excess of the damages which would be incurred, if any, by running said highway through said defendants' property, and said defendants have wholly refused to accept the same or to agree with said petitioner upon the value of said property, and the damages incurred thereby, if any, and petitioner has been unable to compromise or settle with them, by reason whereof said Commissioners' Court has been compelled to institute condemnation proceedings to condemn said property, which is actually needed for said highway hereinbefore described, and all of which said land your petitioner is entitled by law to condemn.

"Wherefore, your petitioner respectfully prays the County Judge of Jefferson County, Texas, to forthwith in the manner required by law, name, designate and appoint three (3) disinterested freeholders, citizens of Jefferson County, Texas, as Special Commissioners, to assess the damages, if any, accruing to said defendants, and that said decision of said commissioners, when reported to the Court as required by law, be recorded in the Minutes of said Court, as the judgment of the Court, and for such other and further relief, special and general, in law and in equity, to which it may be justly entitled."

On application duly made under appellants' petition, commissioners were appointed by the county court of Jefferson county at law on the 17th day of May, and on the 24th day of May these commissioners filed the oath required of them by law. Citation duly issued on the 8th day of June to Mr. Gordon and Mrs. Price, and was duly served on the 11th day of June. On the 11th day of June Mr. Gordon filed in the Fifty-eighth district court his petition against appellants, praying that temporary writ of injunction issue in his favor restraining appellants from doing the things enumerated in the court's order, copied above. This petition was presented to Judge O'Brien, judge of the Fifty-eighth district court, in chambers on the 11th day of June, and the writ of injunction was granted as prayed for. The plea to the jurisdiction was cited as part of appellants' motion to dissolve the temporary writ of injunction.

It is the general rule that the institution of condemnation proceedings in the county court vests that court with prior and exclusive jurisdiction, as against a petition for injunction filed in the district court, to hear and determine all matters at issue in the condemnation proceedings. Gulf Coast Irr. Co. v. Gary, 118 Tex. 469, 14 S.W.(2d) 266, 17 S.W.(2d) 774; Ellis v. Houston, etc., R. R. Co. (Tex. Civ.App., Writ refused) 203 S.W. 172; Cook et al. v. Ochiltree County (Tex.Civ. App.) 64 S.W.(2d) 1018; Tarrant County v. Shannon (Tex.Sup.) 104 S.W.(2d) 4; Texas & N. O. R. R. Co. v. City of Beaumont (Tex.Civ.App.) 285 S.W. 944. However, in the Shannon Case, supra, Judge Sharp said that the general rule was subject to the exception that, if the condemnation proceedings are void for want of power or jurisdiction in the county court to hear and determine the matters at issue, then such condemnation proceedings may be enjoined. Appellee, conceding the principal proposition, invokes the exception recognized by Judge Sharp in the Shannon Case,...