City of Houston v. Kunze

• Decision Date: 02 December 1953
• Docket Number: No. A-4263,A-4263
• Citation: 153 Tex. 42,262 S.W.2d 947
• Parties: CITY OF HOUSTON v. KUNZE et al.
• Court: Texas Supreme Court

Page 947

262 S.W.2d 947

153 Tex. 42

CITY OF HOUSTON v. KUNZE et al.

No. A-4263.

Supreme Court of Texas.

Dec. 2, 1953.

Rehearing Denied Jan. 13, 1954.

Will Sears, City Atty., and Richard H. Burks, Asst. City Atty., Houston, for petitioner.

Ernest A. Knipp, Houston, for respondents.

SMITH, Justice.

Petitioner, City of Houston, filed proceedings in the County Court at Law of Harris County, Texas, against respondent, E. Huber, and others, to acquire an easement over and across certain land situated in the city of Houston.

On May 19, 1949, the judge of the County Court of Law appointed three Special Commissioners 'to assess the damages in accordance with law'. On July 5, 1949, the Special Commissioners issued 'Notice of Hearing' to be held on July 14, 1949, and the person serving the notice made his return reciting that he had delivered 'a true copy' of the notice to 'E. Huber, his attorney Ernest Knipp' on July 8, 1949. The award of the Commissioners contains recitations that notice was served upon the parties in person and through their agents and attorneys, and that the notice was served at least five days before the day of service, and that 'E. Huber appeared through his attorney, Ernest A. Knipp'. The award further recites that, 'We, the undersigned Commissioners have assessed the damages, * * * and decide, and order that the total amount due to the defendants is $32,588.80 * * * and the Commissioners being unable to determine as among the various defendants the ownership of said property and improvements and their respective interests therein, * * * therefore unable to apportion said damages among the defendants * * * we * * * hereby award to * * * and E. Huber, the total amount of said damages, * * * as their respective interests may appear'. This award was dated August 9, 1949, and on August 15, 1949, the City of Houston tendered to the defendants and deposited in the registry of the Court the sum awarded 'for the benefit of said defendants, and in order to enable the plaintiff to take possession of the parcel of land described in Plaintiff's statement in Condemnation'. The defendants in his proceeding, except E. Huber and two others, filed objections to the award, and the cause is now pending.

On September 30, 1949, E. Huber filed a suit in trepass to try title against the City of Houston and others, styled E. Huber v. Melva Kunze, et al., in the District Court of Harris County. On September 18, 1952, petitioner filed in this last mentioned cause a motion for summary judgment, wherein it alleged, in part, that the suit was 'a collateral attack upon the condemnation proceedings now pending in the County Court at Law of Harris County, Texas'.

On October 3, 1952, respondent, E. Huber, filed a sworn answer to the motion for summary judgment alleging that he was residing in the State of Colombia, in South America, and that he was not served with notice and did not participate in the hearing before the Special Commissioners; that 'at the time that the condemnation proceeding was instituted, E. A. Knipp was not the attorney for E. Huber and had not been in communication with Huber for many months'. The affidavit of E. Knipp, attorney for Huber in the District Court suit, says that a letter dated March 10, 1949, addressed to E. Huber and others in regard to the property was sent to him by a member of Huber's family, and that 'after receipt of the * * * letter he directly and personally informed Will Sears, City Attorney, and W. Lawrence Cook, the then Assistant City Attorney in charge of the case, that he had at one time represented Huber * * *, but that he had not had any communication from Mr. Huber regarding this matter, that he was not the agent or attorney for Huber, and that he had no authority whatsoever to accept service of notice or to act in any capacity for Huber at the time that the condemnation hearing was held. Statements to that effect have been several times communicated by the affiant to Mr. Will Sears or Mr. W. Lawrence Cook.' The hearing on the motion for summary judgment began on October 6, 1952, and on October 20, 1952, the trial court overruled the motion.

On November 20, 1952, petitioner filed in the original condemnation proceedings in the County Court at Law its petition for temporary injunction, seeking to enjoin respondent, E. Huber, from prosecutig and maintaining the suit in the District Court of Harris County, alleging, in substance, that by virtue of the condemnation proceeding hereinabove outlined, the City had lawful possession of the property involved. It further alleged that it had substantially complied with the eminent domain statutes of the State of Texas, and that the award of the Commissioners 'recited that due notice had been served on all parties defendant in said condemnation suit, and that the Defendant, E. Huber, had appeared by his attorney, Ernest Knipp'; (emphasis added) that the county Court at Law has exclusive jurisdiction to hear and determine all issues between the parties, and that the suit in the District Court constitutes a collateral attack on its jurisdiction. Petitioner prayed that notice issue to the respondent commanding him to appear and show cause why he should not be temporarily enjoined from maintaining and prosecuting the trespass to try title suit.

Respondent filed his sworn answer denying that he had in any manner directly or indirectly interfered with any action of the City in prosecuting the condemnation proceeding; that the allegations in petitioner's motion for temporary injunction to the effect that he had been served with notice in the condemnation suit were false; that he had not waived notice, and had not authorized any one to waive notice or answer for him. Respondent further pleads as in his answer to the motion of the City for summary judgment, the facts in connection with the action of the attorney, Ernest Knipp; that because of the complete lack of notice the County Court at Law has not at any time acquired jurisdiction of his person or property in the condemnation proceeding. The answer further alleged that the land described in the suit in the District Court was not the same as that described in the condemnation statement.

The petitioner failed to introduce...