Dallas, P. & S. E. R. Co. v. Day

• Decision Date: 24 May 1893
• Parties: DALLAS, P. & S. E. R. CO. v. DAY et al.
• Court: Texas Court of Appeals

22 S.W. 538

DALLAS, P. & S. E. R. CO. v. DAY et al.

Court of Civil Appeals of Texas.

May 24, 1893.

Appeal from Denton county court; F. M. Davidson, Judge.

Condemnation proceedings by the Dallas, Pacific & Southeastern Railroad Company against E. S. Day and against E. S. Day, S. A. Needham, and others. From a judgment awarding all the damages to E. S. Day, plaintiff appeals. Reversed.

H. C. Ferguson and Simkins & Morrow for appellant. Smith & Bell, for appellees.

HEAD, J.

The court below did not err in overruling plaintiff's exceptions to the report of the commissioners. It seems that G. W. Raines, W. H. Wellborn, and Z. J. Harmonson were the commissioners first appointed by the county judge to assess the damage in the condemnation proceedings, and they were duly sworn as such; but it is also made to appear, from the undisputed evidence in the record, that Wellborn declined to serve, and the county judge appointed Gibbs in his place, who, with the other two commissioners first appointed, sat at the hearing, and made the report. It also appears from the record that Gibbs was sworn prior to the meeting of the commissioners. The statute does not require either the appointment by the county judge of the commissioners, nor their oath, to be in writing, and the court therefore properly admitted parol evidence to show that Gibbs was sworn. It seems that his appointment was in writing. 2 Sayles' Civil St. arts. 4183, 4184. The statute also fully provides for the appointment of a new commissioner whenever either of those first appointed is, from any cause, unable or fails to act. 2 Sayles' Civil St. arts. 4198.

The action of the court in permitting the defendants to open and conclude the argument was correct. The admission of plaintiff's cause of action, filed by them, was almost in the exact language of an admission held sufficient in this character of proceeding in the case of Railway v. Waples, 3 Civil Cas. Ct. App. 409. But even in the absence of such admission it seems that the weight of authority outside of this state is in favor of the right of the owner of the land to the opening and conclusion. Lewis, Em. Dom. 426.

The court erred in excluding the judgment of the district court of Denton county in the case of S. A. Needham et al. v. E. S. Day. The bill of exceptions does not state the ground of the defendants' objection to this judgment, but the court explains its reason for excluding it to be the fact that the parties admitted that this judgment had been appealed from, and that the cause was then pending in the supreme court. Under our statute a judgment of a trial court is res adjudicata, notwithstanding the execution of a supersedeas bond, and the pendency of the cause in the appellate court thereon. Thompson v. Griffin, 69 Tex. 139, 6 S. W. Rep. 410; Westmoreland v. Richardson, (Tex. Civ. App.) 21 S. W. Rep. 167. Had this judgment been admitted in evidence it would have shown that E. S. Day, who recovered all the damage, had no title to the Wallace survey, and was not entitled to the damage caused thereto, but that this right was in the other defendants to this proceeding. If we could say from the record, as presented to us, that these other defendants had been given legal notice of these proceedings, it might be that they would be precluded by this judgment from denying Day's right to all this damage, they not having excepted to or appealed from the judgment; but the record does not disclose such notice; and, inasmuch as this is a special proceeding, we are of opinion that, before we should affirm Day's right to damage which it appears he is not entitled to receive, we should know from the record, as presented to us, that appellant can suffer no injury because those who are entitled to what Day receives are estopped by the proceedings from again asserting their claim against it. It is true the report of the commissioners, as returned to the county court, states that notice had been given all the parties, and that none of them, except Day, appeared; but the judgment rendered in the county court, from which this appeal is taken, only recites the appearance of plaintiff and the defendant Day, and says nothing as to service having been had upon the other defendants. Where a judgment is by default the record should contain the citation to the party against whom the default is taken, and a recital of service in the judgment is not sufficient. Burditt v. Howth, 45 Tex. 466; Carlton v. Miller, (Tex. Civ. App.) 21 S. W. Rep. 697. Were these defendants to institute a suit against appellant for the damage caused to this land, it is clear there is not sufficient disclosed by this record to preclude them from recovering. This being a special proceeding, it would be incumbent upon appellant, in defense of such suit, to show affirmatively that the plaintiffs therein had been served with legal notice in this proceeding, and the recital of such notice having been given in the report of the commissioners, or even in the judgment rendered by the county court, would be no evidence against them of this having been done. Parker v. Railway Co., 84 Tex. 333, 19 S. W. Rep. 518. The proceedings for the condemnation of the right of way across the Wallace and Hallmark surveys having been consolidated in the county court, and the verdict not showing the amount of damage caused to each survey, the error in excluding the judgment above indicated will necessitate a reversal of the entire judgment.

The charge of the court, in submitting the case to the jury, in calling their attention to the different elements of damage to be considered by them, does not...