Carter v. City of Houston
| Citation | 255 S.W.2d 336 |
| Decision Date | 05 February 1953 |
| Docket Number | No. 12506,12506 |
| Parties | CARTER et ux. v. CITY OF HOUSTON. |
| Court | Texas Court of Appeals |
Hamblen & Bobbitt, and W. J. Mills, Houston, for appellants.
Will Sears, City Atty., and Richard H. Burks, Asst. City Atty., Houston, for appellee.
On August 7, 1951 the City of Houston brought condemnation proceedings in the County Court at law of Harris County seeking condemnation of appellants' property for street purposes, and on November 19, 1951 the commissioners appointed by the court made and filed their award in the trial court, assessing the value of the land condemned and appellants' damages in the amount of $12,650. Within the time allowed by law, both appellants and appellee filed an appeal from the award of the commissioners. Thereafter, on the 2nd day of July, 1952, the City of Houston deposited the amount of such award, $12,650, in the registry of the court and took possession of the land involved.
On July 30, 1952, the Carters filed an application for payment of the award to them. On August 7, 1952, the City filed an answer opposing the Carters' application for payment of the award to them, together with a cross-action for temporary injunction.
In a hearing before the court without a jury, the City's application for a temporary injunction enjoining appellants from appropriating or going into possession of the fund on deposit was granted. The court denied the Carters' application for disbursement of the funds on deposit.
At the request of appellants the court prepared and caused to be filed his findings of fact and conclusions of law. The court found that the City of Houston would suffer irreparable damage if appellants were permitted to withdraw the amount of the commissioners' award prior to a final trial in this cause. The trial court concluded as a matter of law that the deposit of the sum of $12,650 made by the City of Houston, was made at a time when the City had filed objections and was appealing from the award of the commissioners and that it was made solely to serve as security for payment of final judgment and to enable the City of Houston to take possession of the premises during the pendency of the suit. The court found that said money deposited by the City of Houston, having been placed there by appellee under the provisions of Art. 3268, V. A.T.S., remained the property of the City of Houston, subject to the final outcome of the suit, and that appellants were not entitled to have the award paid to them prior to the final adjudication of the amount payable to them on the final trial of said suit; that the City of Houston would suffer immediate and irreparable damage, for which it had no adequate remedy at law if the money is wrongfully appropriated by the defendants since they were not entitled to have the same paid to them prior to the final adjudication of the amount payable on the final trial of said suit.
Appellants rely on two points of assigned error. Under their first point, they contend that a temporary injunction was improperly granted for the reason that the award of the commissioners was placed in the registry of the court by appellee under the provisions of said Art. 3268, subject to the order of the appellants and that the provisions of said Article constitute a plain and unambiguous mandate that the deposit should have been given to the appellants upon their request.
Art. 3268, Sec. 1, provides that if the plaintiff in a condemnation proceeding should desire to enter upon and take possession of the property sought to be condemned, pending litigation, it may do so at any time after the award of the commissioners.
In the instant case it is undisputed that no tender was made of the award to appellants by appellee; that the fund is owned by the appellee, City of Houston, and that it was deposited in the registry of the court as security to the appellants for the payment to them of the adjudicated amount of damages to which they might become entitled.
This construction of said Article 3268 is, we think, borne out by Section 2 of said Article. It provides that '* * * it shall deposit in said Court a further sum of money equal to the amount of the damages awarded by the Commissioners, and which shall be held, together with the award itself, should it be deposited in Court instead of being paid, exclusively to secure all damages that may be awarded or adjudged against the plaintiff; * * *.'
The case of City of Rosebud v. Vitek, Tex.Civ.App., 210 S.W. 728, 730 (), was a condemnation suit in which the commissioners appointed made and filed their report assessing the owner's damages at $688. The City of...
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City of Austin v. Hall
...he has a distinct understanding to the contrary with the condemnor.' These declarations of the law were made in Carter v. City of Houston, Tex.Civ.App., 255 S.W.2d 336, on February 5, 1953, three months before the Hall award, and in Thomas v. Housing Authority of City of Dallas, Tex.Civ.App......
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