Getzendaner v. Trinity & B. V. Ry. Co.

• Decision Date: 05 March 1910
• Citation: 126 S.W. 328
• Court: Texas Court of Appeals
• Parties: GETZENDANER v. TRINITY & B. V. RY. CO.<SMALL><SUP>†</SUP></SMALL>

126 S.W. 328

GETZENDANER v. TRINITY & B. V. RY. CO.^†

Court of Civil Appeals of Texas.

March 5, 1910.

Rehearing Denied March 19, 1910.

Appeal from District Court, Ellis County; F. L. Hawkins, Judge.

Action by R. W. Getzendaner against the Trinity & Brazos Valley Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

See, also, 43 Tex. Civ. App. 66, 102 S. W. 161.

M. B. Templeton and W. L. Harding, for appellant. G. C. Groce, for appellee.

BOOKHOUT, J.

This suit was brought to recover 10.63 acres of land, or, in the alternative, its values and damages, alleged to be $1,800. The railway company pleaded: That, prior to April 17, 1906, it was engaged in the construction of a line of railway, through Ellis county, and desired to appropriate, for right of way purposes, two certain tracts of land owned by the appellant, one tract being 7.61 acres, and the other 10.63 acres. That it was unable to agree with appellant in respect to the damages. That on April 17, 1906, it began proceedings for condemnation thereof, intending to condemn both tracts, but in drafting the petition for condemnation only the small tract was mentioned or described. That it does not know why same was left out, but that the second tract of 10.63 acres was not mentioned or described, being omitted through error or mistake. The county judge appointed commissioners upon said petition, in the usual form, and said commissioners were duly sworn, as provided by law, to assess damages. That said commissioners, after giving notice, met and proceeded to hear the evidence. That the petition was not read, but that the railway company and the commissioners thereof thought both tracts were included therein, and heard evidence as to both tracts. Appellant thought the same thing, was present, but filed no pleadings and took no part in the proceedings. That commissioners awarded $925 damages, and taxed appellant with cost, as the railway company had offered to pay more than the award. That the commissioners made written report to the county judge in due form, stating that they had assessed the damages to the land described in the petition at $925. That, after the expiration of 10 days, no objections having been filed, the railway company procured the award of the commissioners to be embraced in a judgment of the court in usual form, and deposited the award with the clerk, which was subsequently turned over to the appellant. The court found the above facts, and further found that on August 23, 1906, railway company filed in the county court, ...