Hardy v. City of Throckmorton, 1251.
| Decision Date | 13 April 1934 |
| Docket Number | No. 1251.,1251. |
| Citation | 70 S.W.2d 775 |
| Parties | HARDY 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. Plaintiff's moved to dismiss defendants' objections to the commissioners' report assessing damages of defendants, and to record the report as judgment in the cause. From a judgment sustaining the motion, named defendant appeals.
Reversed and remanded.
See, also, 62 S.W.(2d) 1104.
Tom Davis, of Haskell, and Jno. Lee Smith, of Throckmorton, for appellant.
T. R. Odell, of Haskell, and D. T. Bowles, of Breckenridge, for appellee.
In a condemnation proceeding instituted by the city of Throckmorton, a municipal corporation, against H. L. Hardy and others, for the purpose of condemning certain land for street and road purposes, the special commissioners appointed to assess the damages filed their report with the county judge on September 23, 1932. On October 3d thereafter the property owners, being dissatisfied with the decision, filed their objections thereto in writing with the county clerk. A trial was had upon the issues joined, resulting in a judgment in favor of the property owners for $1,400 damages. Upon motion of the city, this judgment was set aside and a new trial granted. Thereafter the city filed a motion to dismiss the objections of the property owners on the ground that the court had no jurisdiction to try the cause, because the objections were not filed in the time and manner prescribed by law. The motion further prayed that the report of the special commissioners be ordered recorded as the judgment in the cause. The motion was sustained, the cause dismissed, and the report of the special commissioners recorded as the judgment of the court. From this judgment, H. L. Hardy, one of the owners of the property, has perfected an appeal to this court.
Two questions of law are determinative of the appeal, namely, (1) Were the objections of the property owners to the decision of the special commissioners filed in time? and (2) Were such objections filed with the proper officer? These questions will be determined in their order.
It is provided in R. S. 1925, art. 3266, subd. 6, that "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. * * *" The judgment from which the appeal is prosecuted recites, in accordance with the record, that the special commissioners filed their decision with the county judge of Throckmorton county on the 23d day of September, 1932, and that the property owners filed their objections thereto with the county clerk of that county on October 3, 1932. This was within ten days. It is the settled rule that, when an act is required to be done within a given number of days from a given date, in computing the time within which same must be done the first day is excluded. Lubbock v. Cook, 49 Tex. 96; Hill v. Kerr, 78 Tex. 213, 14 S. W. 566; Hunter v. Lanius, 82 Tex. 677, 18 S. W. 201; Ætna Life Ins. Co. v. Wimberly, 102 Tex. 46, 112 S. W. 1038, 23 L. R. A. (N. S.) 759, 132 Am. St. Rep. 852; Hammons v. State, 35 Tex. Cr. R. 17, 29 S. W. 780; White v. Dennis (Tex. Civ. App.) 220 S. W. 161; Key v. Forshagen (Tex. Civ. App.) 57 S.W.(2d) 232.
The second question must be answered in the affirmative. The county clerk, and not the county judge, is the proper official with whom to file...
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