Fort Worth & D. N. Ry. Co. v. Johnson, 1881-6405.

• Decision Date: 10 July 1935
• Docket Number: No. 1881-6405.,1881-6405.
• Citation: 84 S.W.2d 232
• Parties: FORT WORTH & D. N. RY. CO. v. JOHNSON.
• Court: Texas Supreme Court

84 S.W.2d 232

FORT WORTH & D. N. RY. CO. v. JOHNSON.

No. 1881-6405.

Commission of Appeals of Texas, Section A.

July 10, 1935.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by Fort Worth & Denver Northern Railway Company against R. E. Johnson and others. Judgment for the defendant was affirmed by the Court of Civil Appeals [53 S.W.(2d) 163], and plaintiff brings error.

Reversed and remanded.

Cook, Smith, Teed, Sturgeon & Wade, of Pampa, for plaintiff in error.

Willis, Studer & Studer and Newton P. Willis, all of Pampa, for defendant in error.

GERMAN, Commissioner.

This is a condemnation proceeding. It was originally instituted by the railway company against R. E. Johnson, the landowner, Albert McAnally, the owner of a surface lien, Southwestern Life Insurance Company, which claimed a lien upon the land sought to be condemned, and other parties claiming some mineral interest in the land. The purpose of the proceeding was to acquire a right of way for railroad purposes. The statement filed by the railway company appears to be in conformity with the requirements of the statute. The proceedings up to the time of the making of report by the commissioners were in substantial compliance with the law. By their report the commissioners awarded to Johnson, the landowner, damages in the sum of $608, and to McAnally, $35.50. Presumably none of the other parties were in any manner damaged, as no award was made in their favor and they filed no objections to the report. McAnally filed no objections and presumably accepted the $35.50.

Johnson alone filed exceptions to the report. The railway company accepted service and filed its answer. No citation was served on any of the other parties. No objection was made in the county court because of the failure to serve them, and the parties (railway company and Johnson) proceeded on the theory that they themselves were the only proper and necessary parties to the proceeding in the county court. On appeal to the Court of Civil Appeals, the railway company urged for the first time that the failure to give notice to the other parties, after objections to the report had been filed by Johnson, resulted in the county court failing to acquire jurisdiction of the cause. Without a discussion of the matter, we hold that the giving of notice to the parties who were satisfied with the award of the commissioners, and who made no objection thereto, was not a jurisdictional prerequisite. The award as to them became final. See Fort Worth & D. S. P. R. Company v. Judd (Tex. Civ. App.) 4 S.W.(2d) 1032 and Fitzgerald v. City of Dallas (Tex. Civ. App.) 34 S.W. (2d) 682. As the case will be remanded on another ground, in the event of another trial, all parties defendant other than Johnson will no doubt file such stipulation as was filed by them in the Court of Civil Appeals; and the court should enter judgment formally disposing of all parties.

In the county court the railway company, as plaintiff, proved all the essential facts necessary to entitle it to condemnation of the land in question, and proceeded to offer evidence as to benefits and damages. This evidence tended to support the report of the commissioners on the question of damages. After the railway company rested, Johnson, as defendant, offered proof in support of his contention that the damages were much larger than the amount awarded by the commissioners. The railway company then offered evidence in rebuttal on the question of damages and benefits. At the conclusion of all of the testimony, the defendant Johnson filed a statement to the effect that he admitted that the railway company had a right to condemn the land in question, and that the only issue in the case was the question of damages; that he admitted that the burden of proof was on him as to the question of damages. He then demanded the right to open and conclude the argument, and this was granted him over objections by the railway company. The judgment, based upon a finding of the jury, was entered in the county court in favor of defendant Johnson for $1,850.60, with interest and all costs...