State ex rel. City of Colleyville v. City of Hurst, 17593

• Decision Date: 21 March 1975
• Docket Number: No. 17593,17593
• Citation: 521 S.W.2d 727
• Parties: STATE of Texas ex rel. CITY OF COLLEYVILLE et al., Appellants, v. CITY OF HURST, Appellee.
• Court: Texas Court of Appeals

Page 727

521 S.W.2d 727

STATE of Texas ex rel. CITY OF COLLEYVILLE et al., Appellants, v. CITY OF HURST, Appellee.

No. 17593.

Court of Civil Appeals of Texas,

Fort Worth.

March 21, 1975.

Rehearing Denied April 25, 1975.

Tim Curry, Dist. Atty., Fort Worth, and Wilbur T. Knape, Bedford, for appellants.

George A. Staples, Jr., City Atty., Hurst, for appellee.

OPINION

MASSEY, Chief Justice.

The dispute involved is between two neighboring municipalities whose extra-territorial jurisdiction overlaps land desired to be annexed by both; where in view of their inability to settle the matter between themselves there was resort to court action for apportionment allocation resolving the dispute.

We affirm the trial court's judgment.

October 12, 1973 this Court handed down its opinion in this same case, reversing a prior judgment of apportionment and allocation and remanding the cause for retrial. See City of Hurst v. City of Colleyville, 501 S.W.2d 140 (Fort Worth Civ.App., 1973, writ ref., n .r.e.). We observe that we could have, but did not, specify the action which could properly occur on retrial.

Construing our opinion the trial court concluded that retrial of the whole case, involving introduction of evidence which would constitute mere unnecessary repetition of that on former trial, was not the order of this Court; that what was ordered was a new adjudication of allocation under the evidence introduced upon the former trial. In that conviction the trial court proceeded, without evidence, to make the apportionment by judgment. It is from this judgment that Colleyville has appealed.

On this appeal, unlike the situation on former appeal, the State of Texas is a party. The State could have been a party to the former appeal, but chose not to be such. We take judicial notice of our own records, in particular of the prior record in this case. While the cause was pending for original trial the State of Texas, on relation of Frank L. Whitmire as Mayor of the Town of Colleyville, filed on July 25, 1972 its petition in Quo warranto against the City of Hurst. The denomination of the pleading was that it was a counterclaim against Hurst in Hurst's suit against Colleyville; Colleyville became the individual defendant to the suit by Hurst.

August 10, 1972 an order of the trial court was entered striking the Quo warranto proceeding by the State of Texas; and August 14, 1972 judgment was rendered in the case as one in which the controversy was one between Colleyville and Hurst only, save the fact that notice was taken therein about what had been done to the State's case. From that judgment both Colleyville and Hurst perfected appeals. The State did not appeal. The State was not before this Court on the prior appeal. In other words the State of Texas accepted the order of the trial court dismissing its Quo warranto proceeding and took no further interest in the case.

After the Supreme Court had acted upon Colleyville's Petition for Writ of Error from this Court's judgment of reversal and remand and the cause pended before the trial court for its further action, the State again became interested in this case. June 19, 1974 it filed anew a petition in Quo warranto against Hurst, again in the form of a counterclaim in Hurst's suit against Colleyville. It was by inadvertence that an order of the trial court was entered which granted the State leave to file such. It is obvious, without necessity of citation of authority, that further State action against Hurst was without merit because the matter presented thereby had become Res adjudicata. The trial court did not err in striking the Quo warranto proceeding. The State's claim of error because of such action by the trial court is without merit.

After the Supreme Court had acted upon Colleyville's Petition for Writ of Error from this Court's judgment of reversal and remand and the cause was again pending in the trial court, Colleyville filed a pleading designated as its Third Amended Original Answer. This answer was stricken by the judgment of the trial court making new apportionment. Of this and the denial of right to present more evidence under such amended pleading there is complaint by several of Colleyville's points of error.

We have examined such Third Amended Original Answer. From the text thereof it is apparent that there is nothing therein which adds to matter already in pleadings before the court at time of the entry of its former judgment on ...