Thomas v. Housing Authority of City of Dallas, A-4284
| Citation | 264 S.W.2d 93,153 Tex. 137 |
| Decision Date | 16 December 1953 |
| Docket Number | No. A-4284,A-4284 |
| Parties | THOMAS et ux. v. HOUSING AUTHORITY OF CITY OF DALLAS. |
| Court | Supreme Court of Texas |
McKool & Bader, Dallas, for petitioners.
Scurry, Scurry & Pace, Dallas, for respondent.
Respondent, hereinafter referred to as condemnor, instituted this condemnation suit on June 21, 1951 to condemn property of petitioners, hereinafter referred to as landowners, for use as a low rent housing project. The Commissioners, appointed pursuant to statute, awarded to the landowners the sum of $2,775, and within the statutory period the landowners filed their objections to such award. Condemnor deposited the amount of the award with the Clerk of the Court as provided by Art. 3268, Vernon's Annotated Civil Statutes of Texas, and went in to possession of the property and dispossessed the landowners. Thereafter, the landowners secured an order permitting them to withdraw, and they did withdraw, the amount of the award. About a year thereafter condemnor discovered the cause still pending on the docket of the County Court-at-Law, No. One, Dallas County, Texas, and filed a motion for a summary judgment. This motion alleged the facts as above set out and further alleged that by withdrawing the award, the landowners had waived their right of appeal and to further litigate the matter. Upon a hearing the trial court gave condemnor a summary judgment. The Court of Civil Appeals has affirmed. 258 S.W.2d 428.
This case presents but one question and that is: Can the landowner, who has filed objections to the award of the Commissioners in a condemnation proceeding, and who has been properly dispossessed by condemnor withdraw the amount of the award, and further prosecute his suit? We hold that he can and that he has not waived his right to prosecute his appeal by drawing down the amount awarded by the Commissioners. There are decisions by the courts of Texas which support either view of the above question. These cases are in conflict, and we will not attempt to reconcile them.
We think a reading of Art. 3268, Vernon's Annotated Civil Statutes of Texas, together with a study of its legislative history will show conclusively that the landowner who has been dispossessed by condemnor has a right to withdraw the deposit made by the condemnor in order to procure possession of the property without prejudice to his right to further prosecute the litigation.
First, we should keep in mind that there is no requirement in the law that the landowner be dispossessed and his property delivered to the condemnor during the pendency of the litigation. Neither is it required that the condemnor make the deposit, unless he desires possession of the landowner's property during the pendency of the litigation. Art. 3268, supra, provides that in the event the condemnor 'desire to enter upon and take possession of the property sought to be condemned, pending litigation, it may do so at any time after the award of the commissioners, upon the following conditions, to-wit; * * *' first, (a) by paying to the landowner the amount of damages awarded against condemnor, or (b) deposit the same in money in court, 'subject to the order of the defendant,' (landowner) and pay the court costs. The words 'subject to the order of the defendant' can mean only one thing, and that is the landowner may withdraw the deposit. The landowner is out the use of his land; he has been dispossessed and in justice and equity he is entitled to have the money which has taken the place of the land. Also, had the law required that no possession could be taken pending litigation except the amount of the award be paid to the landowner, the landowner could have prevented being dispossessed by merely refusing to accept the payment tendered by the condemnor. In order to prevent such a happening the Legislature made provision for the deposit of the amount of the award in court...
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...the amount of the deposit is equal to the award determined by the special commissioners. Id. § 21.021(a)(1) ; Thomas v. Housing Auth., 153 Tex. 137, 264 S.W.2d 93, 94 (1953) (explaining that “subject to the order of” means that “the landowner may withdraw the deposit”). Moreover, the proper......
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