City of Bryan v. Moehlman, 5253

• Citation: 282 S.W.2d 687,155 Tex. 45
• Decision Date: 05 October 1955
• Docket Number: No. 5253,5253
• Parties: The CITY OF BRYAN, Petitioner, v. C. B. MOEHLMAN et ux., Respondents.
• Court: Supreme Court of Texas

Page 687

282 S.W.2d 687

155 Tex. 45

The CITY OF BRYAN, Petitioner, v. C. B. MOEHLMAN et ux., Respondents.

No. 5253.

Supreme Court of Texas.

Oct. 5, 1955.

Rehearing Denied Nov. 2, 1955.

John M. Lawrence, III, Bryan (for petitioner.

Coulter Hoppess, Bryan, for respondent.

CULVER, Justice.

The City of Bryan instituted in the County Court of Brazos County proceedings to condemn a strip fifty feet wide out of land belonging to respondents, Moehlman and wife, for street purposes under the right of eminent domain.

The parties failing to agree, the County Judge on August 17, 1954, appointed, under the provisions of Article 3264, V.A.C.S., three special commissioners to assess the damages. The commissioners after a hearing made an award of $200. The amount of this award was paid into the registry of the court. The City promptly entered into possession and began to clear and grade the strip.

Thereafter on September 2nd respondent filed suit in the District Court of Brazos County seeking an injunction and damages against the City alleging that the county court proceedings were unll and void on two grounds: (1) that two of the commissioners appointed, Williamson and Halsell, were not 'disinterested freeholders' as a matter of law for the reason that they were duly appointed, qualified and acting members of the Board of Equalization for the City of Bryan for the year 1954; (2) that the City of Bryan had not paid into the registry of the court the court costs which had been awarded against it as provided by subd. 1, Art. 3268.

Upon a hearing the District Court dissolved the temporary restraining order granted and dismissed the cause

On appeal the Court of Civil Appeals reversed, 276 S.W.2d 414, holding the condemnation proceeding to be void for the reasons asserted by the respondents. We think the trial court's dismissal was correct and the judgment of the Court of Civil Appeals is therefore reversed.

At the outset the respondents relied strongly on Lone Star Gas Co. v. City of Fort Worth, 128 Tex. 392, 98 S.W.2d 799, 109 A.L.R. 374, and say that they 'have predicated their entire action in the district court and their conduct in this entire matter on the statements made and the authorities cited by Judge German' in that case. The holding by Judge German was to the effect that if the condemnation proceeding is void the district court may properly issue the injunction. In that case no question was raised as to strict compliance with prescribed condemnation procedure. There was just no procedure provided by law to condemn and appropriate the property of the Lone Star Gas Company. The court held that until such procedure was established by law, the city could not condemn.

Petitioner City asserts that the Court of Civil Appeals erred in three respects: (1) in failing to hold that the respondents had an adequate remedy at law by appeal to the county court and thence to the Court of Civil Appeals; (2) in holding that the commissioners were as a matter of law not 'disinterested freeholders'; (3) in holding that the failure of the City to pay the costs prior to entering upon and taking possession of the premises rendered the proceeding void.

The question of the asserted disqualification of the commissioners appointed to value land in condemnation proceedings has been the subject of appeal in several cases. McInnis v. Brown County Water Improvement Dist., Tex.Civ.App., 41 S.W.2d 741; Cox v. Brown County Water Improvement District, Tex.Civ.App., 45 S.W.2d 1118; Schooler v. State, Tex.Civ.App., 175 S.W.2d 664, er. ref., w. o. m. We have been cited to no authority holding that the disqualification of such a special commissioner would render the proceeding void or subject to collateral attack.

Very much in point is the case of Gulf, C. & S. F. Ry. Co. v. Ft. Worth & R. G. Ry. Co., 86 Tex. 537, 26 S.W. 54. In that case under somewhat similar facts an application in the district court for injunction was denied. The Court of Civil Appeals held (26 S.W. 57):

"* * * If the commissioners were disqualified, or there was any other irregularity in the proceedings, appellant's remedy was adequate and ample by the proper proceedings in the county court to contest the award of the commissioners, and by appeal, if necessary. * * *"

In affirming that decision Justice Brown wrote (26 S.W. 60):

'* * * It is alleged that plaintiff did not know of the disqualification of the commissioners at the time of the trial. But we find in the petition for injunction, filed on the 7th day of August, four days after the award was filed, substantially the same allegation as a ground for holding the award void. Under the law, the award could not be made the judgment of the court until after the expiration of 10 days from the time it was returned into court, and, during that time, plaintiff, by filing objections to it, would have been entitled to a trial de novo before a jury, by which objections it would have set aside the award, and thus have secured ample protection before the county court, with the right of appeal to the court of appeals if its rights were not fully protected by the judgment of the county court. Having failed to avail itself of so simple and effective a remedy, we see no reason why the rules of law by which such proceedings are held to be binding upon parties to them, when duly notified, should be departed from, and a collateral attack allowed to be made upon the proceedings of a court of competent jurisdiction. * * *'

We therefore hold that the respondents had an adequate remedy at law in the county court and by appeal therefrom.

It developed in the hearing before the district court that the petition for injunction had been filed two days after the date of the award and as soon as attorney for respondents learned of the fact that two of the commissioners were members of the City Board of Equalization for 1954. The record shows that the Board of Equalization had reviewed all of the values individually and collectively and had adjourned on June 24, 1954, and there has been no meeting of the Board since that time. The members of the Board by authority of the City Commission were paid in full for their services on June 23, 1954. The Tax Assessor and Collector of the city had prepared the assessment rolls on the basis of the findings of the Board of Equalization and the tax levy had been apportioned by the city commissioners for the current year on July 9, 1954. Two members of the Board of Equalization who had served in preceding years testified that the same procedure was followed in 1954 as in the preceding years and the Board was not called upon to perform any duties after the preparation of their report and final adjournment.

Respondents introduced in...