Payne v. City of Tyler, 40

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Writing for the Court: DUNAGAN
• Citation: 379 S.W.2d 373
• Parties: Raymond D. PAYNE et ux., Appellants, v. CITY OF TYLER, Appellee.
• Docket Number: No. 40,40
• Decision Date: 19 March 1964

Page 373

379 S.W.2d 373 Raymond D. PAYNE et ux., Appellants,
v.
CITY OF TYLER, Appellee. No. 40. Court of Civil Appeals of Texas, Tyler. March 19, 1964.
Rehearing Denied May 7, 1964.
Second Rehearing Denied June 4, 1964.

Wm. R. Crocker, Lawrence & Lawrence, Tyler, for appellants.

Troy Smith, Smith & Smith, Henry L. McGee, Jr., Tyler, for appellee.

DUNAGAN, Chief Justice.

On September 19, 1960, the City of Tyler, a municipal corporation, possessing the right of eminent domain, filed a condemnation action against the appellants herein for the purpose of acquiring easement rights with respect to a lighting approach to its municipal airport over certain lands owned by the defendants (appellants). Commissioners were appointed and after a hearing was had, an award was made on September 28, 1960, which was filed with the County Judge of Smith County, Texas. On the following day, September 29, 1960, the City of Tyler deposited in the registry of the court the amount of the award and thereupon went into possession of the property The defendants (appellants here) filed objections to the award on October 6, 1960, and withdrew the amount of the award on the 9th day of January, 1961. No citation was ever issued for service on the City of Tyler and no effort was ever made by the appellants to bring this action to trial. On September 19, 1960, two (2) years, eleven (11) months, and thirteen (13) days after appellants filed objections to the award, the City of Tyler filed its motion requesting the court to dismiss the cause for want of prosecution and because of abandonment. The hearing on the motion was held on July 2, 1963, and on the 4th day of October, 1963, an order dismissing such cause was signed by the presiding judge of the County Court at Law of Smith County, Texas.

Appellants have duly perfected their appeal from said judgment and we are called upon to review the action of the trial court.

The trial court, at the request of the appellants, filed findings of fact and conclusions of law.

By appellants' first point of error they complain that the court erred in dismissing defendants' cause of action based upon its conclusion that the two-year statute of limitation is applicable to this cause of action.

Appellee, by way of counter-point No. 1, contends that the appellants' right to recover money in addition to the award made by Condemnation Commissioners and the amount deposited in the registry of the court and thereafter accepted by the appellants, constituted a cause of action for damages to be tried as any other civil action when the objections to the award was filed and the two-year statute of limitations applied.

Appellee's contention is sustained.

The filing of objections to the Condemnation Commissioners' award constitutes the institution of the lawsuit to be tried and determined as any other civil

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cause in court. City of El Paso v. Ward, Tex.Civ.App., 213 S.W.2d 726; Pearson v. State, Tex.Civ.App., 307 S.W.2d 159; Lower Nueces River Water Supply District v. Cartwright, 160 Tex. 239, 328 S.W.2d 752; Article 3266, Rev.Civ.St.Tex., Vernon's Ann.Civ.St. art. 3266.

The right to recover additional damages if the condemnees had suffered additional damages, accrued when Condemnation Commissioners' award was filed and the right to recover such additional damages, if any were suffered, is made dependent by virtue of Article 3266, R.C.S.T., upon the condemnees' filing of objections to the award within ten (10) days after the award was made. So, therefore, it may be said that the limitation period started to run at the end of ten (10) days after the award was made. In this case, the appellants' action for additional damages was filed within the ten-day period. However, the filing of such suit did not have the effect of suspending limitation for the reason that there was no citation issued and there was no effort made to bring this case to trial during the time from the filing of the objections until the motion to dismiss the same for want of prosecution and abandonment was heard, which period is almost three years.

The mere filing of a suit does not suspend the running of the statute of limitation against a claim.

In the case of Adams v. Slattery, 156 Tex. 433, 295 S.W.2d 859, our Supreme Court held that the mere filing of a suit in 1940 did not interrupt the running of the statute of limitation against a claim.

In the case of Patrick v. Callan, Tex.Civ.App., 353 S.W.2d 40, the Supreme Court said:

'In order to toll the statute of limitation by the filing of a suit there must be not only a bona fide intention that process be issued and served, but diligence as well.'

The Austin Court of Civil Appeals in January, 1962 (no writ history), in the case of McMullen Oil and Royalty Co. v. Lyssy, 353 S.W.2d 311, said:

'In Texas it has long been held that the mere filing of a petition does not toll the statute of limitations since there must be a bona fide intention that process be issued and served and due diligence must be exercised in both the issuance and service of process.'

Therefore, in this case, since appellants never caused citation to issue and never did anything toward the prosecution of this suit and did not offer any excuse or reason for not prosecuting the suit, limitation was not suspended by the filing of the suit. The findings of fact and conclusions of law made by the trial court, not having been excepted to, or objected to in any manner by the appellants, is conclusive of the fact situation.

Appellants take the position that the two-year statute of limitation does not apply and that the ten-year statute of limitation is the one applicable.

Article 5526, R.C.S.T., insofar as the same concerns the proposition here, reads as follows:

'There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description:

'1. Actions of trespass for injury done to the estate or the property of another.

* * *

* * *

'4. Actions for debt where the indebtedness is not evidenced by a contract in writing.'

In the case of J. S. Abercrombie Co. v. Hagen, Tex.Civ.App., 238 S.W.2d 239 (no writ history), the court had before it the question of what statute of limitation controlled where a pipe line company had appropriated an easement on a landowner's property. In considering the question, the

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court had before it only the question of when a cause of action accrued where one having the right of eminent domain had entered upon the land of another and established an easement across it. The court said:

'Our courts have held that, in instances like the one here involved, where recovery of damages for the appropriation of a right-of-way over, or to the land itself, is sought as a permanent injury thereto, the limitation begins to run from the date of the appropriation thereof. Baker v. City of Ft. Worth, 146 Tex. 600, 210 S.W.2d 564, 5 A.L.R.2d 297; Houston Water-Works Company v. Kennedy, 70 Tex. 233, 8 S.W. 36; Stillwell v. City of Ft. Worth, Tex.Civ.App., 162 S.W.2d 1046, affirmed 140 Tex. 560, 169 S.W.2d 486.'

The court also held that the two-year statute (R.C.S.T., Art. 5526, above quoted) was applicable.

The foregoing authorities relate to the taking of property by one having authority to acquire property by eminent domain and where the party has gone into possession through the exercise of eminent domain and hold that the two-year limitation statute is applicable.

The fourth clause of Article 5526 of our Revised Civil Statutes also applies as a limitation condition in this case.

Appellants' claim against the appellee is one for money and although it is money claimed to be due appellants for the taking of land, it does not involve title for land but simply involves the sole question of how much money appellants were entitled to by virtue of the lawful taking of appellants' property by the...