Pearson v. State

• Decision Date: 06 November 1957
• Docket Number: No. 10517,10517
• Citation: 307 S.W.2d 159
• Parties: John B. PEARSON, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 159

307 S.W.2d 159

John B. PEARSON, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 10517.

Court of Civil Appeals of Texas, Austin.

Nov. 6, 1957.

Rehearing Denied Nov. 27, 1957.

Tisinger & Sloan, Austin, for appellant.

Will Wilson, Atty.Gen., James H. Rogers, Asst. Atty. Gen., Robert L. Burns, Houston, of counsel, for appellee.

ARCHER, Chief Justice.

This is an action in eminent domain brought in the name of the State acting by the State Building Commission to acquire land owned by appellant, and occupied under a lease agreement by the Texas Good Roads Association.

Appellee filed statements in condemnation signed by Robert L. Burns, an attorney employed by the Building Commission, with the County Judge, who appointed three Special Commissioners in condemnation, and who fixed December 4, 1956, for a hearing. The appellant appeared at such hearing and waived notice. Notice was not served on the Texas Good Roads Association, but at a subsequent date the State acquired the leasehold interest of the Association.

A hearing was had and evidence heard and on December 6, the Commissioners filed their award with the Judge of the County Court and awarded appellant and the Association the sum of $41,600.

Appellant did not file objections to the award with the County Judge within ten days as required by Article 3266, Vernon's Ann.Civ.St., but on December 18, 1956, filed objections.

On the 19th or 20th of December, 1956, counsel for appellant went to the office of the County Clerk for the purpose of withdrawing the money deposited by the State, but upon being advised by a deputy county clerk that the money could be disbursed only by joint check to appellant and the Association declined to accept such check.

On December 20, 1956, Robert L. Burns filed a statement of deposit that the entire award belonged to appellant. The appellant declined to withdraw the funds thereafter.

On March 20, 1957, Robert L. Burns, acting as attorney, filed a motion to record the award and to make it the judgment of the Court. Appellant filed an answer to the motion and by cross motion to strike the award and abate the suit.

A hearing was held by the County Court on both of the above motions on March 22, 1957, and a judgment was entered on April 3, 1957.

The appeal is before this Court on four assignments of error and are to the effect that the Court had no jurisdiction of the matter because Robert L. Burns was not a person authorized to bring and prosecute the action in the name of the State; that since no notice was served on the Good Roads Association and no appearance was or would be made the Commissioners did not have jurisdiction to make the award, and the Court erred in ordering the award recorded and made the judgment of the Court, because the judgment was not entered during the term of the Court when the matter was before the Court and the Court was without authority to enter such judgment at a subsequent term.

Appellee has filed its motion to dismiss this appeal for want of jurisdiction, because appellant did not file objections to the award with the County Judge within ten days as required by Article 3266, V.A.C.S.

The action of the County Judge on April 3, 1957 in recording the award in the minutes and making the same the judgment of the Court was only in performance of the ministerial duty provided by law.

We believe appellee's motion to dismiss should be...