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

• Decision Date: 09 May 1979
• Docket Number: No. A2124,A2124
• Citation: 581 S.W.2d 777
• Parties: Angelina SALVAGGIO, Individually et al., Appellants, v. BRAZOS COUNTY WATER CONTROL & IMPROVEMENT DISTRICT NO. 1, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 777

581 S.W.2d 777

Angelina SALVAGGIO, Individually et al., Appellants, v. BRAZOS COUNTY WATER CONTROL & IMPROVEMENT DISTRICT NO. 1, Appellee.

No. A2124.

Court of Civil Appeals of Texas, Houston (14th Dist.).

May 9, 1979.

Rehearing Denied June 6, 1979.

Robert L. Burns, Sears & Burns, Houston, for appellants.

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

Before MILLER, PRESSLAR 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. Salvaggio et al., v. Brazos County Water Control & Improvement District No. 1, No. 17203 (Tex.Civ.App. Houston (1st Dist.) Nov. 2, 1978).

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...