Henslee v. State, No. 16341

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

Page 474

375 S.W.2d 474
Cornelia HENSLEE et al., Appellants,
v.
STATE of Texas and County of Dallas, Appellees.
No. 16341.
Court of Civil Appeals of Texas, Dallas.
Dec. 20, 1963.
Rehearing Denied Feb. 21, 1964.

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In this condemnation case the award of the commissioners was $18,250, which Having been paid into court, was withdrawn by appellants pursuant to the provisions of Article 3268, Vernon's Ann.Tex.Civ.St., prior to the trial in the county court.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 This was fully authorized by Article 3268, V.A.T.S., and the mere circumstance that the amount withdrawn exceeded the amount of the judgment would not estop the landowners from prosecuting their appeal.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,

Page 476

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...

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13 practice notes
  • Carlisle v. Philip Morris, Inc., No. 3-89-175-CV
    • United States
    • Court of Appeals of Texas
    • February 6, 1991
    ...50(a). 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 medica......
  • Siefkas v. Siefkas, No. 08-93-00027-CV
    • United States
    • Court of Appeals of Texas
    • June 8, 1995
    ...50(a). 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.--Dallas 1963, writ ref'd n.r.e.); Humble Oil & Refining v. State, 158 S.W.2d 336, 338 (Tex.Civ.App.--Austin 1942, writ ref'd).......
  • Carroll v. Roger Lacy, Inc., No. 195
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • March 31, 1966
    ...S.W.2d 101, 1939; Pfeffer v. Meissner, 286 S.W.2d 241, 251 (Tex.Civ.App.) 1955, n.r.e.; Henslee v. State of Texas and County of Dallas, 375 S.W.2d 474 (Tex.Civ.App.) 1963, writ refused, Even though an attorney of record is not permitted to sign appeal bond without the consent of trial court......
  • City of Manvel v. Texas Dept. of Health Resources, No. 8132
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • August 15, 1978
    ...considered. Nixon v. Royal Coach Inn of Houston, 464 S.W.2d 900, 901 (Tex.Civ.App. Houston (14th Dist.) 1971, no writ); Henslee v. State, 375 S.W.2d 474, 476 (Tex.Civ.App. Dallas 1963, writ ref'd n. r. e.); Freeman v. Anderson, 119 S.W.2d 1081, 1083 (Tex.Civ.App. Waco 1938, no writ); Yeager......
  • Request a trial to view additional results
13 cases
  • Carlisle v. Philip Morris, Inc., No. 3-89-175-CV
    • United States
    • Court of Appeals of Texas
    • February 6, 1991
    ...50(a). 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 medica......
  • Siefkas v. Siefkas, No. 08-93-00027-CV
    • United States
    • Court of Appeals of Texas
    • June 8, 1995
    ...50(a). 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.--Dallas 1963, writ ref'd n.r.e.); Humble Oil & Refining v. State, 158 S.W.2d 336, 338 (Tex.Civ.App.--Austin 1942, writ ref'd).......
  • Carroll v. Roger Lacy, Inc., No. 195
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • March 31, 1966
    ...S.W.2d 101, 1939; Pfeffer v. Meissner, 286 S.W.2d 241, 251 (Tex.Civ.App.) 1955, n.r.e.; Henslee v. State of Texas and County of Dallas, 375 S.W.2d 474 (Tex.Civ.App.) 1963, writ refused, Even though an attorney of record is not permitted to sign appeal bond without the consent of trial court......
  • City of Manvel v. Texas Dept. of Health Resources, No. 8132
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • August 15, 1978
    ...considered. Nixon v. Royal Coach Inn of Houston, 464 S.W.2d 900, 901 (Tex.Civ.App. Houston (14th Dist.) 1971, no writ); Henslee v. State, 375 S.W.2d 474, 476 (Tex.Civ.App. Dallas 1963, writ ref'd n. r. e.); Freeman v. Anderson, 119 S.W.2d 1081, 1083 (Tex.Civ.App. Waco 1938, no writ); Yeager......
  • Request a trial to view additional results

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