Latimer v. State, 6303
Citation | 328 S.W.2d 242 |
Decision Date | 04 June 1959 |
Docket Number | No. 6303,6303 |
Parties | James L. LATIMER et ux., Appellant, v. STATE of Texas, Appellee. |
Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
Black & Lindsey, Port Arthur, for appellant.
W. G. Walley, Jr., Beaumont, for appellee.
This cause, a condemnation proceeding, is before us on appeal from the county court, at law, of Jefferson County. The appellee has filed motion to dismiss the appeal, setting up that since the appeal was perfected, the appellee tendered to appellants and appellants voluntarily accepted all sums due under the judgment of the lower court. The motion is verified and supported by exhibits, and has not been answered or contested by appellants. We therefore feel justified in accepting as true the allegations made in it. We sustain the motion. The rule is thus stated in Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004;
The case at bar is within the rule but not within the exception. Appellants have no legal assurance that upon another trial they would be awarded as much as was awarded by the judgment from which the appeal was taken. Appellee has never conceded and is not bound to concede that it is intrinsically indebted to appellants for as much as was awarded by the judgment. It did not tender any sum of money to appellants until after the judgment was rendered, did not tender any sum of money in court, and did not enter upon and take possession of appellants' land upon the strength of any of the proceedings preceding judgment.
The appeal is accordingly dismissed at the cost of appellants.
On Motion for Rehearing.
Appellants have seasonably filed two motions seeking reinstatement of their appeal. One is presented under the guise of a motion to set aside the order of dismissal and reinstate the appeal; the other, under the guise of an ordinary motion for rehearing.
No complaint is made that the original opinion did not correctly state the facts of the case, but the motions do make apparent that originally we were under a misapprehension about one matter which we wish to clarify. Payment of the judgment was not made direct to appellants. Instead, the money was paid into the registry of the court, presumably subject to appellants' order, and was from there withdrawn by appellants. We are not advised as to whether appellee entered into possession of the condemned property after paying the money into the court registry, but shall...
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