Harris County Flood Control Dist. v. Cohen

• Decision Date: 06 October 1955
• Docket Number: No. 12865,12865
• Citation: 282 S.W.2d 917
• Parties: HARRIS COUNTY FLOOD CONTROL DISTRICT, Appellant, v. H. M. COHEN et ux., Appellees.
• Court: Texas Court of Appeals

Page 917

282 S.W.2d 917

HARRIS COUNTY FLOOD CONTROL DISTRICT, Appellant, v. H. M. COHEN et ux., Appellees.

No. 12865.

Court of Civil Appeals of Texas, Galveston.

Oct. 6, 1955.

Rehearing Denied Oct. 27, 1955.

Burke Holman, County Atty., and Madison Rayburn, Asst. County Atty., Houston, for appellant.

Roy L. Arterbury and Carroll R. Graham, Houston, for appellees.

CODY, Justice.

This is a condemnation suit brought by Harris County Flood Control District against H. M. Cohen and wife to condemn the fee simple title to 4.473 acres of land lying along Brays Bayou east of Scott Bridge in the City of Houston, and described by metes and bounds in appellant's pleadings. On the trial of the cause it was stipulated by the parties that the condemnor acquired title to the property, for which suit was brought for condemnation, on February 18, 1954, and that the only issue to be determined upon the trial was the value of the land so condemned as of February 18, 1954.

The case was submitted on one special issue as to the value of the land in question as of the date of its acquisition, namely, February 18, 1954. The jury found such value to be $60,000 and the court rendered judgment therefor and the condemning authority has appealed from said judgment and predicates its appeal upon four points of error to the effect that:

(1) The court erred in admitting the testimony of appellees' witness Yeager showing the sale of property in the remote vicinity at 80 cents a square foot as of December, 1954, because such testimony showed an enhancement of value since the date fo the acquisition of the property, namely February 18, 1954;

(2) The court erred in admitting the testimony of appellees' witness Yeager because he testified relative to the value of property which was not comparable and similar to the land of appellees;

(3) The court erred in failing to instruct the jury not to consider the closing argument of appellees' counsel, who stated, 'Why, they paid $18,000 for some land up the Bayou from this land-a little less than an acre. They or somebody paid it', there being no evidence in the record to such effect;

(4) The court erred in failing to declare a mistrial when appellees' counsel, in his argument to the jury, made the aforesaid statement which could not have been 'cured' by an instruction from the court.

Opinion

We overrule appellant's first point which in effect charges that the court erred in admitting the testimony of appellees' witness Yeager, namely that a piece of property (described by appellant as being in the remote vicinity of the property being condemned by it and the title to which it had acquired by condemnation on February 18, 1954) had been sold in December, 1954, for 80 cents per square foot. In connection with its said point appellant contends that such testimony showed the enhanced value of property in the vicinity which had taken place between February 18, and December, 1954. We digress here to state that the record shows that the witness Yeager testified that no change had taken place in the value of the property in the vicinity between the said dates, namely February 18 and December, 1954. And we further digress to state that the record shows that the same testimony of Yeager which appellant asserts it objected to had been admitted earlier in the trial without any objection to its admission.

However, in the interest of brevity and without discussing any grounds which might justify the ruling of the court had an objection been made to the admission of the evidence, we base our ruling on the ground that the court declined to give appellant a bill of exception to the effect that appellant had objected to the admission of the aforesaid testimony, but to the contrary the court gave a bill of exception which affirmatively found that no objection was made by appellant to the admission of the testimony in question. While the statement of facts appeared to confirm the court's finding in the aforesaid bill of exception, appellant only approved the statement of facts with this saving clause: 'Subject to Plaintiff's bills of exceptions.' By this language appellant was evidently referring to the purported Bystander's Bill by which it undertook to preserve its asserted error under the authority of Texas Rules of Civil Procedure, Rule 372, Sec. (j), which reads:

'Should the party be dissatisfied with said bill filed by the judge, he may, upon procuring the signatures of three respectable bystanders, citizens of this State, attesting to the correctness of the bill as presented by him, have the same filed as part of the record of the cause; and the truth of the matter in reference thereto may be controverted and maintained by affidavits, not exceeding five in number on each side, to be filed with the papers of the cause, within ten days after the filing of said bill and to be considered as a part of the record relating thereto. The truth of such bill of exceptions shall be determined on appeal from such affidavits.'

The language of Sec. (j), except that to which we have added emphasis, is identical with former subd. 9 of Art. 2237.

Appellant's said purported Bystander's Bill, which it designates as its Bystander's Bill No. 1, was duly executed by (1) Madison Rayburn, the Assistant County Attorney who tried the case, (2) Billy R. Kerr, who is also an Assistant County Attorney of Harris County, and (3) J. J. Gallagher, an engineer of the appellant Flood Control District, who participated in the trial as representative of the Flood Control District, assisting the Honorable Madison Rayburn in the trial of the case.

The above provision for taking a bystander's bill, whether considered...