Dueitt v. Harris County

• Decision Date: 22 May 1952
• Docket Number: No. 12410,12410
• Citation: 249 S.W.2d 636
• Parties: DUEITT et ux. .v HARRIS COUNTY.
• Court: Texas Court of Appeals

Page 636

249 S.W.2d 636

DUEITT et ux. .v HARRIS COUNTY.

No. 12410.

Court of Civil Appeals of Texas, Galveston.

May 22, 1952.

Rehearing Denied June 12, 1952.

Fowler & Conn, Philip M. Shafer, of Houston, for appellants.

Sam W. Davis, Crim. Dist. Atty., of Harris County, W. K. Richardson and Miron A. Love, Asst. Crim. Attys. of Harris County, of Houston, for appellee.

MONTEITH, Chief Justice.

This is an appeal from an order of the County Court at Law of Harris County, Texas, refusing the motion of O. B. Dueitt and wife, to set aside and cancel a judgment theretofore entered on July 24, 1951, in a condemnation suit brought by Harris County, acting through its commissioners' court, and at the request of the Highway Commission of the State of Texas, against appellants, O. B. and Mertie J. Dueitt, to condemn certain designated land, the property of the Dueitts, for the purpose of opening, widening and constructing a portion of U. S. Highway 75 in Harris County, containing 0.136 acres of land, more or less. In a trial before the court judgment was rendered that the award of the special commissioners theretofore appointed by the trial court be adopted awarding them the sum of $1,000 for the value of the land sought to be condemned, $1,656 for the improvements located thereon, and $1,344 as damages to the balance of their property by reason of such condemnation.

Findings of fact and conclusions of law were prepared and caused to be filed by the trial court, in which the court found, on what we deem to be sufficient testimony, that appellants were not consulted in reference to the appointment of said commissioners; that a hearing in said condemnation proceeding was held before the said commissioners on June 28, 1951, and an award of the damages assessed by them was made on July 6, 1951. The court found that appellants were not notified of any hearing held on July 6, 1951, if in fact any hearing was held on such date; that appellants filed their objections and exceptions to the award of said commissioners in the trial court on July 24, 1951. The court found that on July 6, 1951, said commissioners went out to inspect the property sought to be condemned and the surrounding vicinity for the purpose of making a further appraised of the value of the appellants' property and of any damages caused by the condemnation.

The court concluded that, as a matter of law, all proceedings in this condemnation suit were in accordance with the statutory regulations governing same, that the commissioners' award of July 6, 1951, and the court's judment rendered July 24, 1951, were and are valid, in all respects. The court concluded that the personal view and inspection made by said commissioners of appellants' property on July 6, 1951 was not a 'hearing', of which appellants were entitled under law to be notified.

The record shows that on July 6, 1951, two of said commissioners, M. C. Walker and H. L. Harrison, together with a Mr. Ethredge, a witness for appellee at the hearing on June 28, 1951, went out to look at appellants' property on July 6, 1951. Commissioner M. C. Walker testified that he was appointed by the Court to form an opinion as the damage to this particular tract of land and that the only way he could make a decision was to see the land. Both of said commissioners testified that they considered both the evidence they heard at the hearing on June 28 and their personal inspection of the property in making the award. The award assessing the damages was filed with the trial court on July 13, 1951 and was signed by the three commissioners appointed by the court.

Under their points of assigned error, appellants contend that the trial court erred in denying their application to cancel and annul the judgment of the trial court for the alleged reason that the commissioners did not assess the damages accruing to appellants in accordance with the law, because the commissioners, without notifying appellants, had made a personal inspection of the property condemned on July 6, 1951, and that said damages assessed were based upon their inspection. They contend that they were not given an opportunity to attempt to make an agreement with appellees as to the commissioners to be appointed.

Appellee contends that the commissioners appointed by the trial court complied with Arts. 3264 and 3265, R.C.S. in assessing the damages accruing to appellants and that the commissioners' award was arrived at in conformity with the procedure set down in the Statutes. They contend that, in appointing commissioners, the court performed a ministerial duty required by Art. 3264, Sec. 2, and that such appointment was valid whether or not the parties submitted the names of the commissioners on whom they agreed. They contend that appellants' objections and exceptions to the award were without avail because it is undisputed in the record that the objections were filed on the eleventh day after the date of the filing of the award, instead of within the ten-day period required by Sections 6 and 7 of said Article 3266.

Sections 6 and 7 of said Article 3266 read: '6. If either party be dissatisfied with the decision, such party may within ten days after the same has been filed with the county judge file his objection thereto in writing, setting forth the grounds of his objections, and thereupon the adverse party shall be cited and the cause shall be tried and determined as in other civil causes in the county court...