Rotello v. Brazos County Water Control & Imp. Dist. No. 1

Decision Date09 May 1979
Docket NumberNo. A2125,A2125
Citation581 S.W.2d 779
PartiesTom ROTELLO, et ux., et al., Appellants, v. BRAZOS COUNTY WATER CONTROL & IMPROVEMENT DISTRICT NO. 1, Appellee. (14th Dist.)
CourtTexas Court of Appeals

Robert L. Burns, Sears & Burns, Houston, Bill M. Payne, Bryan, for appellants.

Karl C. Hoppess, Warren G. King, Houston, for appellee.

Before MILLER, PRESSLER and SALAZAR, JJ.

MILLER, Justice.

On November 28, 1977, appellee Brazos County Water Control & Improvement District No. 1, filed a petition for condemnation of certain land located in Brazos county which was owned by appellants. Pursuant to Tex.Rev.Civ.Stat.Ann. art. 3264 § 2 (Vernon 1968), the judge of the Brazos county court at law appointed three special commissioners to assess the damages occasioned by the condemnation. The commissioners filed their award with the court. The appellants filed their objections thereto in a timely manner. On April 19, 1978, appellants applied for a temporary injunction seeking to exclude appellee, who had deposited twice the commissioner's award pursuant to Tex.Rev.Civ.Stat.Ann. art. 3268 (Vernon 1968) & (Vernon Supp.1978-79), from entering onto the land. The injunction was denied and appellants appealed. The trial court's action was reversed by the 1st Supreme Judicial District Court of Civil Appeals and remanded to the trial court with instructions to enter an order enjoining the Water District from entering the property. Rotello, et ux., et al. v. Brazos County Water Control & Improvement District No. 1, 572 S.W.2d 120 (Tex.Civ.App. Houston (1st Dist.) 1978, no writ).

On November 28, 1978, the Water District filed a motion for dismissal with the trial court, which was granted on the same day. On December 27, 1978, the appellants filed a "Motion to Set Aside Order of Dismissal and to Set Trial for Determination of Attorney's Fees and Expenses." They alleged as grounds for such motion that they were not given proper notice of the hearing on motion for dismissal and that the Water District failed to comply with Tex.Rev.Civ.Stat.Ann. art. 3265 § 6 (Vernon Supp.1978-79). This motion was denied on December 28, 1978. Also on December 28, 1978, appellants filed a "Cost Bond for Appeal From Judgment Dismissing The Cause" of November 28, 1978. On February 27, 1979, appellants filed a petition for writ of error and a cost bond for petition for writ of error with the clerk of the trial court. On March 5, 1979, appellants filed a transcript in this court. This was not within the 60 day filing time which is required for appeals by Tex.R.Civ.P. 386 nor was a motion to extend time filed pursuant to Tex.R.Civ.P. 21c. It was, however, within the 60 day filing requirement for writ of error. Tex.R.Civ.P. 386. On March 22, 1979, appellee Water District filed a motion to affirm on certificate in proper form, Tex.R.Civ.P. 387, and to dismiss the writ of error.

Appellee's motion to affirm on certificate and dismiss the writ of error finds support in the case of Jarrell v. Farmers' & Merchants' State Bond Bank, 128 Tex. 332, 99 S.W.2d 281 (1936). In that case at 282 the Supreme Court...

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2 cases
  • Salvaggio v. Brazos County Water Control & Imp. Dist. No. 1
    • United States
    • Texas Supreme Court
    • January 23, 1980
    ...Water Control District. The Court of Civil Appeals affirmed on certificates the judgments of the trial court. 581 S.W.2d 777 and 581 S.W.2d 779. We reverse the judgments of the Court of Civil Appeals and remand to that court. The question presented is whether an appellant, entitled to an or......
  • Salvaggio v. Brazos County Water Control & Imp. Dist. No. 1
    • United States
    • Texas Court of Appeals
    • April 16, 1980
    ...v. Brazos County Water Control, 581 S.W.2d 777 (Tex.Civ.App.-Houston (14th Dist.) 1979); Rotello v. Brazos County Water Control, 581 S.W.2d 779 (Tex.Civ.App.-Houston (14th Dist.) 1979).3 Salvaggio v. Brazos County Water Control & Improvement District No. 1, No. 17203 (Tex.Civ.App.-Houston (......

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