Henslee v. State, 16341

Citation375 S.W.2d 474
Decision Date20 December 1963
Docket NumberNo. 16341,16341
PartiesCornelia HENSLEE et al., Appellants, v. STATE of Texas and County of Dallas, Appellees.
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

McKool & McKool, Dallas, for appellants.

Henry Wade, Dist. Atty., A. D. Jim Bowie, Ted Z. Robertson, Don R. Stodghill and Leonard E. Choate, Asst. Dist. Attys., Dallas, for appellees.

Gordon R. Wynne, Wills Point, Clyde Elliott, Jr., Canton, and Tobolowsky, Hartt, Schlinger & Blalock, Dallas, amici curiae.

BATEMAN, Justice.

In this condemnation case the award of the commissioners was $18,250, which Having been paid into court, was withdrawn by appellants pursuant to the provisions of Article 3268, Vernon's Ann.Tex.Civ.St., prior to the trial in the county court. In that trial the jury found the value of the condemned land to be $14,450. The judgment of the county court awarded to the condemnors, the State of Texas and County of Dallas, the land in question and judgment for $3,800, the excess of the commissioners' award over the verdict.

Appellees move to dismiss the appeal because the appellants 'appropriated' $3,800 in excess of the county court's judgment, have therefore accepted the benefits of that judgment and are now estopped to prosecute an appeal therefrom. They rely on Latimer v. State, Tex.Civ.App., 328 S.W.2d 242, err. ref. n. r. e., wherein, after the trial in the county court and the perfection of the appeal therefrom, the condemnor tendered to the landowners, and the landowners accepted, the amount of the judgment in the county court. The appeal was dismissed on the ground that the landowners could not claim that the judgment was right by accepting the benefits thereof and also that it was wrong by appealing therefrom. Here, however, the withdrawal was of the amount of the commissioners' award and was made before the case was tried in the county court. This was fully authorized by Article 3268, V.A.T.S., and the mere circumstance that the amount withdrawn exceeded the amount of the judgment would not estop the landowners from prosecuting their appeal. Thomas v. Housing Authority of City of Dallas, 153 Tex. 137, 264 S.W.2d 93. Appellees say alternatively that we should require a supersedeas bond as a condition precedent to the appeal, expressing great anxiety over the collectibility of their judgment for the $3,800, but we find no authority for such a requirement. Appellants had the option to suspend execution under the judgment. Rule 364, Vernon's Texas Rules of Civil Procedure. They chose not to do so.

Appellees also move to dismiss the appeal because the appeal bond is executed by only one of the three appellants as a principal. The two appellants who did not sign the appeal bond have not perfected their appeal and are hence appellants here in name only.

Appellees also move to dismiss the appeal because the appeal bond is payable only to the State of Texas and omits as an obligee the County of Dallas and also because it is in a penal sum of only $250 whereas the costs shown by the transcript total $308.90. These defects are in our opinion informalities within the purview of Rule 404, Vernon's Texas R.C.P. and, not having been included in any motion filed in this court within thirty days after the filing of the transcript, are waived. Conlee v. Burton, Tex.Civ.App., 188 S.W.2d 713, 720, no wr. hist.; Pfeffer v. Meissner, Tex.Civ.App., 286 S.W.2d 241, 251, err. ref. n. r. e.

The motion to dismiss the appeal is overruled.

Appellees also urge us to strike from the record and not consider Exhibit 'A' attached to appellants' brief. This exhibit is a certified copy of an ordinance of the City of Irving (in which city the subject property is situated) changing the zoning, not of the subject property, but of property across the street from it. This motion is sustained. The copy is not a part of the record of the trial of the case and may not therefore be considered by us. 3 Tex.Jur. 426, Sec. 304, and cases cited therein; Rule 371, Vernon's Texas R.C.P.

On the merits of the appeal there is really only one main question to be determined by us, presented by appellants' first thirteen points of error on appeal, and that is whether the trial court erred in withdrawing from consideration by the jury the testimony of the expert witness Roy Eastus as to the market value of the subject property and four of the five comparable sales offered by Eastus in his testimony. We have concluded, under the facts of this particular case, that no such error was shown and that the judgment should be affirmed.

The testimony of this witness, whose qualifications as an expert on values are not questioned, may be summarized as follows: 56,616 square feet were condemned, of which 35,016 square feet fronting on Loop 12 were valued by him at $1 per square foot, or $35,016. This left 21,600 square feet fronting on Fleming Avenue, a short street north of and parallel to Loop 12, which he valued at 25 cents per square foot or $5,400. Loop 12 is one of the best thoroughfares through Irving. In arriving at his appraisal he took into consideration the facts that the State Highway Department had made a traffic count of 10,830 in a twenty-four hour period in 1961, and the population growth of Irving, which was one of the fastest growing cities in Texas, growing at a rate of 4,500 to 5,000 per year. The zoning of this property was 'A', residential. It was zoned 'A' at the time the property came into the City of Irving and so far as he knows there has never been any application made to change the zoning. (It was stipulated at the trial that the zoning was not changed on the day of taking and that no application for a change had been made up to the time of trial nearly two years later.) In arriving at his evaluation he took into consideration five comparable sales within the area as follows:

1. Walter R. Harvy and wife to John R. Slaughter, Jr., October 3, 1958; 8,125 square feet located on Loop 12 about 300 feet south and on the opposite side of the street from the subject property; zoned 'G' (meaning that it could be used for any type of local business); sold for $1 per square foot, or $8,125.

2. Estate of E. H. Mahan to Edward and Effie Cox, March 12, 1957; approximately 24,000 square feet located at Edgewood and Loop 12; no improvements; zoned 'G', which permitted it to be sued for any commercial use; sold for $26,000 or $1.10 per square foot.

3. Ralph S. Tennell and wife to James M. Parks, January 16, 1959; 11,500 square feet located at 319 Fleming Street, approximately 500 feet north of subject property; improved with a small 4-room frame house with closed in back porch and bath and garage, all in very poor condition. The property was zoned 'A' for residential use. It sold for $7,000 of which the witness allocated $4,000 to improvements and $3,000 to land, making the land valued at approximately 26 cents a square foot.

4. G. C. Braddy and wife to Humble Oil & Refining Company, December 31, 1957; approximately 12,800 square feet at the northeast corner of 6th Street and Murphy Road, between five and seven blocks west of the subject property; no improvements; zoned 'G'; sold for $17,500 or $1.37 per square foot.

5. Cleatus Hampton Rattan and Lena M. Rattan to Tremarko Corporation, September 12, 1956; 23,500 square feet at the southwest corner of Irving Boulevard and Murphy Road, situated five to seven blocks from the subject property; no improvements; zoned 'H'; purchased for a filling station site for $47,000, or $2 per square foot. He said he considered a filling station site comparable to subject property, and a property zoned 'H' comparable to a residential property.

The witness Eastus further testified: The owners could build on the subject property but under the present zoning could only build a residence. He is familiar with Ordinance No. 431, which is a 'set-back resolution of the City of Irving', and with the fact that there was a 180-foot set-back from the center of the street, but that it was their property and it is still their property; they still pay taxes on it; they have an opportunity to go in there and apply for a building permit which he believes will be granted, which would mean that a building would have to set back about 93 feet from the edge of the subject property. His valuation of part of the property taken at $1 per square foot would make the property worth forty-three thousand, five hundred some odd dollars per acre, since there are 43,560 square feet in an acre. He does not think it important to bring to the jury sales of residential property on Loop 12 because he...

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    ...Material outside the record that is improperly included in or attached to a party's brief may be stricken. Henslee v. State, 375 S.W.2d 474 (Tex.Civ.App.1963, writ ref'd n.r.e.); Humble Oil & Refining Co. v. State, 158 S.W.2d 336, 338 (Tex.Civ.App.1942, writ Scientific and medical publicati......
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