City of Dallas v. Crawford

• Decision Date: 21 April 1920
• Docket Number: (No. 1641.)
• Citation: 222 S.W. 305
• Parties: CITY OF DALLAS et al. v. CRAWFORD et al.
• Court: Texas Court of Appeals

Page 305

222 S.W. 305

CITY OF DALLAS et al. v. CRAWFORD et al.

(No. 1641.)

Court of Civil Appeals of Texas. Amarillo.

April 21, 1920.

On Motion for Rehearing, June 2, 1920.

Appeal from Dallas County Court; T. A. Works, Judge.

Action by Mrs. Dorsey Gibbs Crawford and another against the City of Dallas and others. From judgment for plaintiffs, defendants appeal. Affirmed.

Jas. J. Collins, W. S. Bramlett, and Edward P. Dougherty, all of Dallas, for appellants.

W. L. Crawford, Muse & Muse, W. J. J. Smith, and W. A. Kemp, all of Dallas, for appellees.

HUFF, C. J.

This is an action brought in the county court of Dallas county at law, on April 23, 1918, by Mrs. Dorsey Gibbs Crawford, joined by her husband pro forma, William Lester Crawford, against the city of Dallas, Mrs. S. A. Gibbs, Carl Hoblitzelle, Joe S. Kendall, Texas Land & Mortgage Company, and Real Estate Loan Company of Galveston, for the purpose of canceling and annulling for want of service and citation upon the plaintiff, Mrs. Dorsey Gibbs Crawford, or other notice, in a condemnation suit, and for fraud, the reports being made by the special commissioners in said condemnation proceeding, and the judgment of the said county court of Dallas county at law awarding condemnation to the city of Dallas for certain tracts of land described in the petition, and in the reports and judgment, situated in the city and county of Dallas, and claimed by the city of Dallas under the condemnation proceedings. The Texas Land & Mortgage Company and Real Estate Loan Company of Galveston each filed disclaimers, disclaiming any interest whatever. Mrs. S. A. Gibbs filed a general denial. The city of Dallas answered by general exceptions, various special exceptions, general denial, special denial, and pleas of estoppel. Kendall and Hoblitzelle each answered by a general demurrer, and the adoption of the demurrers and exceptions of the city of Dallas, and by general denial. The case was tried before a jury, but upon an instructed verdict judgment was rendered for the plaintiff, Mrs. Dorsey Gibbs Crawford, canceling and annulling the reports of the special commissioners, and the judgment in condemnation by said court, and all proceedings under the application for condemnation, so far as the same affected the rights of Mrs. Dorsey Gibbs Crawford. It is shown there had been two applications for condemnation filed by the city of Dallas against Mrs. Dorsey Gibbs Crawford and others for different tracts of land, in which said application Dorsey Gibbs Crawford was alleged to have an interest in the land sought to be condemned or to claim an interest therein, and the said applications were carried under the respective docket numbers of 19419 and 19425 of the county court of Dallas county at law. The court consolidated these two cases on the motion of the city, under consolidated number 19425. The application of the city for condemnation in each case was presented to the judge of that court, and each filed with him on the 23d day of April, 1913. They were immediately docketed under the respective docket numbers, and filed with the clerk of the county court on that day. The judgment annulling the order, in so far as pertinent to the issues discussed, provided as follows:

"This judgment shall not be construed as affecting or setting aside any proceeding had or judgment rendered in said cause No. 19419 and 19425, or either of them, except so far as the rights and interests of Dorsey Gibbs Crawford are concerned, but as to Dorsey Gibbs Crawford, and every interest of hers in any of said lands, same and every part of said judgment, reports of special commissioners, and all proceedings thereunder are vacated, annulled, and declared void."

The trial court recited several special findings in his judgment, which are not deemed by us to be necessary to set out. The effect of the judgment was to hold that the court rendering condemnation judgment did not have jurisdiction over the appellee.

The first assignment presents as error the action of the court in overruling the city's general exception to the petition. It is asserted that a petition in an action of this kind must not only allege facts authorizing the vacation of the decree, but should seek a new trial, which should be awarded, and in effect asserts it should show that the complainant has a meritorious cause of action, and that upon a new trial the result would likely be different. It is apparently appellants' contention that appellee is proceeding upon motion to correct an error of entry. We think the petition set up a cause of action as distinguished from a mere motion.

Since the county court of Dallas county at law had power by judgment to vest title to real estate in the city upon condemnation proceedings, it is the proper court in which to file the petition, attacking the judgment therein, on the ground that the recitals in the record were false, and which recitals were necessary as precedent conditions to give jurisdiction and to establish aliunde the record in truth that the court was without jurisdiction to render the judgment. Ellis v. Railway Co., 203 S. W. 172. The petition alleges that the appellee is and was the owner of the land sought to be condemned; that at the time of the condemnation proceeding she was a minor and had no guardian of her estate; that she had no notice of the proceeding, and was not represented at the hearing before the commissioners, either in person or by attorney; that the award to her of $500 therein was grossly inadequate to pay for her interest in the property taken; that such sum in fact was never paid to her, and she has never received anything therefor; that she owned one-third of the property condemned, and that the commissioners and judgment only awarded to her about one-fiftieth of the damages sustained by the entire property; that her interest taken was at that time of the value of over $30,000; that the city had taken charge of the land and property and was trespassing thereon, etc. We think the petition shows on its face a meritorious case, and, if the judgment and report are set aside, probably a different result would be obtained. Upon setting aside the judgment in an ordinary action a trial would be had on the merits, as set up by the pleadings.

The action instituted by the city, however, was a condemnation proceeding, which it alone could institute. A petition must be presented to the judge, describing the land, giving the name of the owners, etc. It is the petition which gives jurisdiction. The owner of the land and the city could agree on a commission to assess the damage, and the statute provides the judge should give preference to such persons. It is probable, under the condition of this case, the county court could not have proceeded under the old application and the commissioners appointed to condemn the land.

It is also asserted by the appellee that the appellant, before seeking condemnation proceedings, did not offer to settle the damages, or to agree upon the damages with appellee, as required by the statute. We do not think the appointment of the commission invalid because there was no agreement between the parties as to the commissioners. The county judge appears, under article 6508, R. C. S., to have the power to appoint three disinterested freeholders. Johnston v. Galveston, 85 S. W. 515; Railway Co. v. Railway Co., 57 S. W. 312. If he so appointed the commissioners, such act would not be invalid. It is not our understanding of the statutes that it was essential to his power to appoint that an agreement between the parties upon the commissioners should first be had.

Section 5, article 11, of the city charter, gives the board of commissioners of that city the power to take private property for public use in order to open, change, or widen any public street. Such property may be taken for such purposes by making just compensation to the owner. If the amount of such compensation shall not be agreed upon it is made the duty of the board of commissioners to state in writing the real estate or property sought to be taken, the name of the owner, his residence, etc., and present the same to the county court of Dallas at law, or to the judge of the court, who can, either in vacation or term time, appoint three disinterested freeholders and qualified voters of the county to assess damages. The special commissioners so appointed are governed by the laws for the condemnation of right of way for railway companies. Article 6506, R. C. S., provides:

"If such company and said owner cannot agree upon the damages, it should be the duty of said company to state in writing," etc.

There is a slight difference in the verbiage used in the city charter and the statute. The city charter stipulates if the amount of the compensation "shall not be agreed upon," while the statute provides if the parties "cannot agree upon the damages." The city charter would seem to authorize the application in writing if no agreement is made, whether there was any effort to agree previous to the application, while the statute seems to indicate that an effort is first required and a failure to reach an agreement established. It has been held that neither the county judge nor the commissioners appointed to assess damages can inquire into the truth of the statements contained in the written application. Such inquiry would be proper only upon a hearing in the county court on appeal from the commissioners. But that case leaves it inferable if there was a chance of agreement this might be shown upon appeal in the county court. Rabb v. La Feria, etc., 62 Tex. Civ. App. 24, 130 S. W. 918. In this case the application appears to have alleged a failure to agree between the owners and the city, and that they could not agree upon the damages. There is a conflict of authority on the question as to whether a failure to agree is a condition precedent to confer the right of eminent domain. "Statutes conferring...