Taylor v. Tod

• Decision Date: 21 December 1944
• Docket Number: No. 11675.,11675.
• Parties: TAYLOR et al. v. TOD et al.
• Court: Texas Court of Appeals

Page 772

185 S.W.2d 772

TAYLOR et al. v. TOD et al.

No. 11675.

Court of Civil Appeals of Texas. Galveston.

December 21, 1944.

Rehearing Denied January 11, 1945.

Appeal from District Court, Sixty-First District, Harris County; Ben F. Wilson, Judge.

Suit by Mary G. Tod and another against James B. Taylor and another for foreclosure of a lien on land and possession of funds deposited with the county clerk of Harris county, Tex., deposited by the Houston Housing Authority pursuant to condemnation causes in the County Court at Law of Harris County, Tex., consolidated with a trespass to try title suit by James B. Taylor and another against the Houston Housing Authority. From adverse judgment in the trespass to try title suit, James B. Taylor and another appeal.

Affirmed.

Edward S. Boyles, Bruce C. Billingsley and Harvey T. Fleming, all of Houston, for appellants.

E. H. Suhr and Bryan, Suhr & Bering, all of Houston, for appellees Mary G. Tod and Rosa Hamner.

Albert J. DeLange, Frank A. Stamper and Robert P. Beman, Jr., all of Houston, for appellee.

GRAVES, Justice.

This suit is a consolidation of cause No. 286,340 and cause No. 301,908, both filed in the District Court of Harris County, Texas. The former suit was filed by Mary G. Tod et al., against James B. Taylor et al., in which the plaintiff sought foreclosure of a lien on land and possession of funds on deposit with the County Clerk of Harris County, Texas, deposited by the Houston Housing Authority pursuant to condemnation causes 45736 and 45737 in the County Court at Law of Harris County, Texas, in which condemnation suits Houston Housing Authority was plaintiff and the other parties to this cause were defendants, with the exception of W. D. Miller, County Clerk, who was named herein as holder of such funds.

Cause No. 301908 was filed in the District Court of Harris County, Texas, by appellants, James B. Taylor and wife, against Houston Housing Authority, and was a statutory trespass to try title suit.

The two causes were consolidated, and, after trial without a jury, judgment was entered on July 14, 1944, in favor of Houston Housing Authority for title to the property in question (lots 3 and 4, block 28, Hardcastle Addition to Houston, lots 6, 8, 9, 12 and 13, block "A", Burton Homestead Addition to Houston, all seven lots being in the John Austin Survey in Harris County), and in favor of Mary G. Tod et al., for foreclosure of liens and for the money on deposit with the County Clerk.

Request for findings of fact and conclusions of law was duly made, and such findings of fact and conclusions of law were made and entered by the trial judge.

Appellants' over-all contentions here for a reversal of the determination so adverse to them below, and for a rendition of the cause in their favor, are two-fold, to-wit:

(1) The Houston Housing Authority, as defendant in the appellants' trespass to try title action, completely failed to fulfill its burden of proof by showing jurisdiction in the County Court at Law in its condemnation suits, and by showing compliance with the eminent domain statutes in the particulars pointed out in this brief as was necessary for it to prove in this trial in the district court.

(2) "The judgment in Cause No. 45,373, in the County Court at Law, Harris County, Texas, was void because such judgment was in favor of John Tod Hamner, who had previously been dismissed from such cause and was not a party to said suit on the date said judgment was entered."

They thus restate their three major grounds for contending that the County Court at Law never acquired jurisdiction over their property in the original condemnation suits (Nos. 45736 and 45737) and that, in consequence, the District Court's judgment of July 14, 1944, in their trespass to try title suit, which is herein appealed from, was entirely void and divested them of no title to the land forming the subject-matter of such suits, to-wit:

"(1) Houston Housing Authority did not show by any evidence compliance of the governing body of the City of Houston in passing a resolution, as required by Section 4, of Art. 1269k, of the [Vernon's] Texas Revised Civil Statutes, finding as prerequisite to the corporate existence of such Authority:

"(a) That unsanitary or unsafe inhabited dwelling accommodations exist in such city, or

"(b) that there is a shortage of safe or sanitary dwelling accommodations in such city available to persons of low income at rentals they can afford."

"(2) Houston Housing Authority did not show by any evidence that it passed the resolution required by Section 12 of Art. 1269k, of the [Vernon's] Texas Revised Civil Statutes, finding a necessity for the condemnation of the property in question;

"(3) Houston Housing Authority failed to offer any evidence of its failure to agree with the appellants, as owners of the property, as to the value of such property, as required by Section 1 of Art. 3264 of the Texas Revised Statutes."

There were a number of other particulars likewise declared upon, but they were all in pari materia with the quoted ones, hence it is deemed unnecessary to set them out.

That final judgment of the District Court in the trespass to try title proceedings with which alone, as indicated, this appeal has to do, in the main was to this effect:

It dismissed all parties who were then unnecessary, decreed that the condemnation judgment entered by the County Court at Law was in all things valid and final; it vested fee simple title to the property in controversy in the Housing Authority, divesting all title from Taylor and wife; it adjudged that Taylor and wife take nothing, that deposit of the funds fixed in the condemnation proceedings had theretofore been made in the registry of the Court, established the indebtedness and prior liens of Mrs. Tod, and of all parties claiming with and under her; it ordered that Mrs. Tod be paid out of such deposit, so far as it was available; it further decreed that John Tod Hamner had no interest in the property, or fund, and that Rose Nachlas, another claimant, had no interest; finally, it adjudged costs, and provided for process. Thereupon, Taylor and wife gave notice of their appeal therefrom.

Moreover, the trial court in support of the appealed from judgment, in determining that the condemnation adjudication of December 6, 1941, in the County Court at Law, as described supra, had been in all things valid, further found, on uncontroverted evidence, that appellants herein, the Taylors, had unsuccessfully at that time undertaken to appeal that judgment to this court, but that their efforts had failed, the judgment having been affirmed on certificate, and a writ of error refused by the Supreme Court; wherefore, that litigation — not having been further pursued — became a binding one on all parties thereto.

The upshot of all the recited proceedings now brought within the congnizance of this court is that these appellants, on this their appeal from the trial court's judgment so determining their trespass to try title action against them and vesting the title to the land involved in the appellee, Housing Authority, instead, are thus undertaking to review, by means of a trespass to try title action, a final judgment of condemnation of their property theretofore rendered by a court of competent jurisdiction, which had properly before it for that purpose both the persons and the properties involved, and from which judgment they had so abortively undertaken to appeal.

In short, they contend, on the stated presentments attacking alone the jurisdiction of that court, that the appellee Housing Authority must again prove all the original elements of its then-consummated condemnation, including the showing of a necessity for its taking of the property, its offer to buy the same, the amount of the offer, its value at that time, and all other minutiae, as in an original condemnation thereof.

In support of that position, they cite these authorities: Article 3271, Texas Revised Civil Statutes; 18 Am.Jur. 961, par. 317; Parker v. Ft.Worth, 84 Tex. 333, 19 S.W. 518; Southern Kansas Ry. Co. v. Vance, Tex.Civ.App., 155 S.W. 696, error refused; Williams et al. v. Henderson County Levee Imp. Dist., Tex.Com.App., 59 S.W.2d 93; Kempner et al. v. Huntsville State Bank, Tex.Civ.App., 282 S.W. 325, 328 (error dism.); Mingus v. Wadley et al., 115 Tex. 551, 285 S.W. 1084; San Antonio Water Supply v. Castle, Tex.Civ. App., 199 S.W. 300; Hall v. Wilbarger County et al., Tex.Civ.App., 37 S.W.2d 1041, 1043, 1044, affirmed Tex.Com.App., 55 S.W.2d 797; Texas Employers' Ins. Ass'n v. Sewell, Tex.Civ.App., 32 S.W.2d 262, error refused; National Union Fire Ins. Co. v. Richards, Tex.Civ.App., 290 S. W. 912; Easter Oil Corporation v. Wilbarger County,...