Hardy v. City of Throckmorton, 1251.
| Decision Date | 17 August 1933 |
| Docket Number | No. 1251.,1251. |
| Citation | 62 S.W.2d 1104 |
| Parties | HARDY et al. v. CITY OF THROCKMORTON. |
| Court | Texas Court of Appeals |
Appeal from Throckmorton County Court; Ewell Condron, Judge.
Condemnation proceeding by the City of Throckmorton against H. L. Hardy and others. From a judgment of the county court, defendants appeal, and named defendant, in advance of submission of cause, presented a petition in the Court of Civil Appeals for an injunction.
Injunction denied.
Tom Davis, of Haskell, and Jno. Lee Smith, of Throckmorton, for appellants.
D. T. Boles, of Breckenridge, and T. R. Odell, of Haskell, for appellee.
In advance of submission of this cause, H. L. Hardy, one of the appellants, has presented a petition in this court for an injunction. The appeal is from a judgment of the county court of Throckmorton county making the award of the commissioners theretofore duly appointed to assess damages in a condemnation proceedings the final judgment of the county court without a trial de novo; the county court having found and so declared in its judgment that no objections to the award by the owners of the condemned property had been filed with the county judge within the ten days' time prescribed by law. R. S. 1925, article 3266, subd. 7. The petition for injunction makes no claim that the report of the commissioners awarding damages was not filed on September 23, 1932, as found by the court, nor that objections were filed with the county judge within ten days thereafter.
The sole ground upon which the injunction is sought is that the award of the commissioners was and is void because it fails to state the amount of damages awarded to the petitioner, but, on the contrary, the award was of a lump sum jointly to petitioner and the other owners of interests in the land.
The jurisdiction of this court to grant an injunction is limited to the purpose of preserving its jurisdiction as invoked in the appeal of said cause. R. S. 1925, article 1823; Madison v. Martinez (Tex. Civ. App.) 42 S. W.(2d) 84; City of Farmersville v. Texas-Louisiana Power Co. (Tex. Civ. App.) 33 S. W.(2d) 271.
For all that is asserted in the petition to the contrary, the appealed case comes to this court with an unchallenged finding that the judgment of the court below rests upon the fact that no objections to the award of the commissioners were filed with the county judge within ten days after the report of the commissioners awarding damages was filed. Article 3266, subd. 6, of the Revised Civil Statutes 1925, provides: "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 objection, 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." This constitutes the statutory procedure by which, in effect, an appeal may be made from the proceedings before the commissioners to the county court as a court. The proceeding before the commissioners is special. It is of a character analogous to proceedings before the Industrial Accident Board in workmen's compensation cases. When objections are duly and timely filed as prescribed, the jurisdiction of the county court is called into active existence. Jurisdiction of a special proceeding being thereby transferred to a court, there is presented a perfect analogy to the transfer of a compensation claim from the Industrial Accident Board to a court. In one case as well as the other the conditions prescribed are jurisdictional. Objections must be filed with the county judge and within ten days after the award of the commissioners is filed, else the jurisdiction of the county court, as a court, never comes into active existence. Sinclair v. City of Dallas (Tex. Civ. App.) 44 S.W.(2d) 465; Fitzgerald v. City of Dallas (Tex. Civ. App.) 34 S.W.(2d) 682; Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084.
The petition for injunction wholly fails, therefore, to show that the jurisdiction of the county court to correct errors in the award of the commissioners was ever invoked. The county court assumed no such jurisdiction. Hence the appeal involves no question of error of the trial court in that respect.
Whether the failure of the award to apportion the damages severally to each of the owners of the land was erroneous, and, if so, whether such error rendered the award absolutely void or only voidable, were questions the county court had jurisdiction to determine had such jurisdiction been properly invoked as the law prescribes. If the award for the reason mentioned, or any other, was only voidable, it would hardly be contended that any question could be presented by the appeal for the determination of this court, which, to preserve its jurisdiction, rendered necessary the granting of the injunction sought. We therefore, without further discussion, pass to a consideration of petitioner's right to the injunction if the award for said reason was void as contra-distinguished from voidable. If void, petitioner would, of course, have the right to attack it collaterally. It may not necessarily follow, however, that he would have the right to institute an independent suit to have its invalidity adjudged, especially in the absence of facts showing a good excuse for not having availed himself of his adequate legal remedy of appeal to the county court. Let us assume, without so deciding, that the award was void for the reason asserted. The county court, as a court, never acquired active jurisdiction to so declare. The county judge, or the county court, in adjudging the award of the commissioners to be the judgment of the county court (being the only judgment appealed from), acted, we think, in a ministerial capacity rather than in a strictly judicial capacity. That was the only judgment that he had any jurisdiction to render. If void, we have no more jurisdiction to enjoin its enforcement than any other void judgment, the asserted invalidity of which is not presented to us for determination in a case appealed. It never having been the duty of the county court to determine the validity or invalidity of the award, such question...
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