Fitzgerald v. City of Dallas

• Decision Date: 20 December 1930
• Docket Number: No. 10733.,10733.
• Citation: 34 S.W.2d 682
• Parties: FITZGERALD et al. v. CITY OF DALLAS.
• Court: Texas Court of Appeals

Page 682

34 S.W.2d 682

FITZGERALD et al. v. CITY OF DALLAS.

No. 10733.

Court of Civil Appeals of Texas. Dallas.

December 20, 1930.

Rehearing Denied January 24, 1931.

Appeal from County Court at Law, No. 1, Dallas County; Paine L. Bush, Judge.

Proceeding by the City of Dallas to condemn property of W. D. Fitzgerald and another. From the judgment, defendant appeals.

Reversed and remanded.

A. S. Jackson and D. W. Bowser, both of Dallas, for appellants.

Jas. J. Collins, City Atty., A. A. Long, H. P. Kucera, W. Hughes Knight, and A. J. Thuss, Asst. City Attys., all of Dallas, for appellee.

VAUGHAN, J.

Appellee, under the law of eminent domain, on September 1, 1926, instituted proceedings against appellants, W. D. Fitzgerald and Mrs. W. D. Fitzgerald, to condemn an easement for a sewer line across certain real estate of appellants situated in Dallas county. The judge of the court below, on said date, appointed special commissioners, as required by law, to determine the damages that would be caused to appellants' land by the taking of the part thereof so sought to be condemned. On September 13, 1926, said petition, with appointments thereunder, was filed with the clerk of said court, and on September 13, 1926, said commissioners filed their decision with the county judge, assessing the damages that would arise to the lands and property of appellants by said condemnation at $150. On September 18, 1926, appellants duly filed their objections to, and appealed from, the award of said commissioners. Of said objections it is only necessary to review No. 2, viz., "because the award of $150 was wholly insufficient compensation for the property taken and the damages to the remainder of appellants' property." Citation to appellee was issued on said appeal August 20, 1929, and served August 21, 1929. Appellee's motion to dismiss appellants' objections filed September 18, 1926, to the decision of the commissioners, on the ground that "said defendants wholly failed and refused to have notice and citation issued and served upon the City of Dallas required by article 3266, subd. 6 (R. S. 1925), as required by law, and served upon the City of Dallas until the 21st day of August, 1929, almost three years after the time provided therefor by statute," was overruled. The court sustained appellee's general demurrer urged to said objections, and, appellants refusing to amend, the court entered its judgment dismissing said objections, approving and making the report of said commissioners the judgment of the court, from which this appeal was duly prosecuted.

Appellee contends that the court erred in overruling its motion to dismiss appellants' objections, on the grounds: (a) "For said objections to be effective to preserve a trial de novo in the court below, and to prevent the running of the ten day limitation period, it was necessary that appellee be cited to appear before said court for trial, as in other cases"; and (b) because appellants failed to perfect their appeal, in that "they did not pray for citation to issue on filing their objections to the award of said special commissioners, and did not cause citation to be issued and served on appellee until three years had expired."

On the filing by appellee of its statement (in effect a petition), under article 3264, R. S. 1925, with the judge of the county court, the jurisdiction of that court did not then attach; the subject-matter thereby to be determined not being within its constitutional jurisdiction to hear and determine causes of action. Article 5, § 16, Texas Constitution. Jurisdiction from that time was to be exercised only by the special tribunal, provided for and authorized to be organized by subdivisions 1 and 2, art. 3264, supra, viz., the appointment by the county judge of three disinterested free holders as special commissioners to assess the damages sustained by reason of such condemnation.

All proceedings from the date of the qualification of said appointees up to and including the filing of their decision with the county judge were had exclusively before, and determined by, them. The authority of said commissioners ceased on the filing of their decision, and the authority of the county judge was to be exercised under subdivision 7 of article 3266, R. S. 1925, viz.: if no objections to the decision had been filed as authorized by subdivision 6 of article 3266, within ten days after the filing of said decision, to "cause said decision to be recorded in the minutes * * * and * * * make the same the...