Crockett v. Housing Authority of City of Dallas, 14885

• Decision Date: 17 December 1954
• Docket Number: No. 14885,14885
• Citation: Crockett v. Housing Authority of City of Dallas, 274 S.W.2d 187 (Tex. Ct. App. 1954)
• Parties: Fred CROCKETT et al., Appellants, v. The HOUSING AUTHORITY OF the CITY OF DALLAS, Appellee.
• Court: Texas Civil Court of Appeals

Page 187

274 S.W.2d 187

Fred CROCKETT et al., Appellants, v. The HOUSING AUTHORITY OF the CITY OF DALLAS, Appellee.

No. 14885.

Court of Civil Appeals of Texas, Dallas.

Dec. 17, 1954.

Rehearing Denied Jan. 14, 1955.

McKool & Bader, Dallas, for appellants.

Scurry, Scurry & Pace and Ralph Wood, Jr., Dallas, for appellee.

YOUNG, Justice.

This appeal, at first prosecuted by both parties, relates to a court proceeding whereby the property of Crockett was condemned in connection with a housing project. The named defendant had owned Lots 4, 5, 16 and 17 of Weisenberger's Garden of Eden Addition, Dallas County, in Block 10. The initial 'statement in writing' of appellee which, under Art. 3264, V.A.C.S., constituted its petition for condemnation, had failed to carry said block number; recitals of said petition being: 'That said defendant(s) is the owner of the following described property situated within the corporate limits of the City of Dallas, Dallas County, Texas, and being more particularly described as follows, to-wit: Being Lots 4, 5, 16 and 17 of Weisenberger's Garden of Eden Addition in DCT, per the map rec. in Vol. 6, pages 113 and 114 of the MR of DCT, and all adjoining and contiguous property owned or claimed by said defendants.' Prior to the jury trial, Crockett filed motion to dismiss the appeal for want of jurisdiction on ground of fatal insufficiency of description; pointing out that there were nineteen blocks in Weisenberger's Gerden of Eden Addition, all of which contained a Lot 4 and 5, nine of said blocks containing a Lot 16 and 17; plaintiff in turn promptly filing motion to correct the record by insertion of the words 'in Block 10' in its pleading; also tendering to the court for filing, an amended original petition, completing the property description by block number, alleging the deficiency in question, under the circumstances, to be no more than 'clerical error.' These motions of plaintiff Authority were overruled; the court taking under advisement without prejudice defendant's motion to dismiss the cause; after the jury verdict and in final judgment of award, overruling same, but in said final rendition properly describing the property condemned as 'in Block 10.'

Appellee in supplemental brief has abandoned its cross-assignment of error; and appellant's single point, charging invalidity ab initio of this proceeding in condemnation, requires a still further detail of relevant, if not material, facts.

The original statement in writing filed by the Housing Authority pursuant to Arts. 3264-3271, V.A.C.S., was dated June 6, 1951, followed by due appointment and qualification of Commissioners, notice to landowners and award of damages of $9,750 on June 12, to which Fred Crockett and wife Alma (now deceased) objected in writing, claiming greated damages. On July 17, 1951 appellee paid above amount into the registry of court subject to order of defendants, who on July 30, 1951 withdrew said sum for their own use after payment of some delinquencies to intervening tex bodies. Thus the case stood on the court docket until March 19, 1954 when defendants filed amended answer, identifying their four lots as rectangular in shape, each 60 X 230 feet in size, with two facing on Fishtrap Road, the other two on Albrecht Street; making lenghty detail of improvements thereon whereby the overall values were estimated at $15,500. Thereafter appellee Authority filed motion to dismiss the cause in County Court at Law, asserting that the controversy became moot, precluding a trial de novo by reason of the landowner's withdrawal of Commissioners' award (a contention now settled adversely to appellee in Thomas v. Housing Authority of City of Dallas, Tex., 264 S.W.2d 93. On the same date appellant filed his motion to dismiss the entire proceedings on grounds of insufficient property description, as contained in the initial statement in writing, to confer jurisdiction on the County Court. Then it was that appellee sought permission to correct the record by insertion of 'in Block 10,' alleging clerical error which misled no one, and tendering amended original petition carrying full and complete description of property, which motions of appellee were by the court overruled, the case proceeding to trial and jury verdict of $11,350; the court in final judgment allowing appellant a further $1,600 in increased damages with 6% interest thereon from July 17, 1951.

The description of property in appellee's original statement in writing has been hereinabove quoted; and also quite pertinent are the following recitals contained in instruments relative thereto: The Oath of Commissioners goes on to say, 'We, the undersigned, do solemnly swear * * * to assess the damages occasioned by condemnation by The Housing Authority of the City of Dallas of certain property and property rights now vested in Fred Crockett et ux, Alma Crockett * * *.' The Report of Commissioners was in part that: '* * * Petitioner did file a certain statement * * * with the County Judge * * * where, upon the facts therein alleged, The Housing Authority sought condemnation of all the rights, title, claim and interest of Fred Crockett et ux, Alma Crockett * * * in and to that certain land and improvements thereon, which said property and premises are more particularly described in the statement or petition on file herein * * *.' Appellant himself stated in objections to the Commissioners' award: 'Now comes Fred Crockett * * * and objects to the decision and award of the Commissioners * * * to assess the damage done to the defendant by the proposed taking of his property for the purpose of a housing project as more fully set out in plaintiff's petition * * *.' The court's order to disburse the fund, approved by Crockett, recites: 'On this, the 30th day of July A.D. 1951, the court having been advised by Fred Crockett et ux, Alma Crockett, owners of all of that tract, lot and parcel of land known and described as Being Lots 4, 5, 16 and 17 of Weisenberger's Garden of Eden Addition in DCT, per the map rec. in Vol. 6, pages...