Wilson v. Newton County

• Decision Date: 09 February 1925
• Docket Number: (No. 1184.)
• Citation: 269 S.W. 227
• Parties: WILSON et al. v. NEWTON COUNTY et al.
• Court: Texas Court of Appeals

269 S.W. 227

WILSON et al. v. NEWTON COUNTY et al.

(No. 1184.)

Court of Civil Appeals of Texas. Beaumont.

February 9, 1925.

Appeal from Newton County Court; J. C. Ramsey, Judge.

Suit by Minnie Wilson and another against Newton County and others to set aside judgment in condemnation proceedings. From a judgment sustaining the proceedings, plaintiffs appeal. Reversed and remanded, with directions.

Dies, Stephenson & Dies, of Orange, for appellants.

Morris & Barnes, of Beaumont, and W. H. Hall, County Atty., of Newton, for appellees.

O'QUINN, J.

This suit was filed in the county court of Newton county by Minnie Wilson, joined by her husband, J. K. Wilson, against Newton county, and the commissioners' court of said county, to set aside and hold for naught certain condemnation proceedings and the judgment thereunder, condemning land belonging to the said Minnie Wilson for public road purposes. The judgment condemning the land was rendered on the 13th day of August, 1923, and appellants filed this suit on August 22, 1923. Judgment was rendered sustaining the condemnation proceedings, and appellants bring this appeal.

We think that appellants' contention that the condemnation judgment is a nullity because the court was without jurisdiction to render same should be sustained. The undisputed evidence shows that the land sought to be condemned was the separate property of appellant Minnie Wilson, and also was the homestead of appellants. Also that Minnie Wilson was not served with notice of the condemnation proceedings. Notice to the owner of land sought to be condemned is jurisdictional, and a judgment had without such notice served as the law requires is void. Parker v. Railway Co., 84 Tex. 333, 19 S. W. 518; McIntire v. Lucker, 77 Tex. 259, 13 S. W. 1027; Adams v. San Angelo Waterworks Co. (Tex. Civ. App.) 25 S. W. 165; Cummings v. Kendall County, 7 Tex. Civ. App. 164, 26 S. W. 439; City of Dallas v. Crawford (Tex. Civ. App.) 222 S. W. 305; Crawford v. Frio County (Tex. Civ. App.) 153 S. W. 388; Cooke County v. Dudenhaffer (Tex. Civ. App.) 196 S. W. 976.

The sheriff of Newton county served J. K. Wilson with notice of the proceedings, and testified, substantially, that at the time he served J. K. Wilson that Wilson told him that Mrs. Wilson was very ill and that her mental condition was bad, and that she was not in a condition to be disturbed, and that he then told Wilson that he would not serve her with the notice, but that he would mail it to Wilson at their home, and that he could give the notice to Mrs. Wilson, and that he later did mail the notice to Wilson and received a letter from Wilson that he had received it and that it would be all right. Wilson admitted getting the notice that the sheriff mailed him for his wife, but says that because of her condition he did not give it to her nor tell her anything about it, and that in fact she knew nothing of the proceedings. Mrs. Wilson testified that she was not served with the notice, and that she did not know anything about it; that her husband did not tell her anything about the matter; that she was not present at the condemnation hearing; and did not authorize her husband or any other person to represent her at said hearing. Appellees tried to avoid the force of this by showing that J. K. Wilson, husband of Minnie Wilson, looked after the land, rendered it for taxes, and had paid the taxes on it several times, and had built a fence around portions of it, contending that these acts constituted Wilson the agent of his wife, and that service on him was therefore sufficient. Wilson denied that he was in any manner authorized by his wife to act for her in the premises, and said that he had "been looking after this land as any other husband would look after his wife's land." There was no proof, other than the above stated, that he was her agent for any purpose. The evidence did not raise the issue of agency, and, further, the husband is not by implication of law the agent of the wife. Magee v. White, 23 Tex. 195; Ethridge v. Price, 73 Tex. 602, 11 S. W. 1039. Moreover, for the service upon an agent to be good as service upon the principal the process must be directed to the principal to be executed by service upon the agent (Evans v. Life Stock & Land Co., 81 Tex. 622, 17 S. W. 232), which, in the instant case, was not pretended to have been done, but Wilson was served independently as a party to the suit, and separate notice to Mrs. Wilson issued, but not served or in any manner called to her attention. Mrs. Wilson was a necessary party to the proceedings, and, such being true, the notice must have been served upon her personally, and not by delivery to her husband. Shelby v. Perrin, 18 Tex. 515.

The judgment condemning the land is void for the further reasons:

(a) There is a fatal variance between the description of the land sought to be condemned, as shown in the application and order for condemnation, and the description of the land actually condemned, as shown by the judgment of condemnation. The land is described in the application and order for condemnation as follows:

"Being a part of the N. H. Cochran survey situated in Newton county, Tex., and being a strip 60 feet in width and beginning at a point where the Newton and Orange public road crosses the J. & E. Railway track west of Bleakwood, Tex. Thence in a southerly direction to the O. & N. W. Ry. track, a distance of about 500 yards. Thence from said railway track in a southerly direction to a point where the new grade stops on the Newton and Orange public road."

The description of the land condemned, as shown by the report of the special commissioners and the judgment of condemnation, is:

"Being a part of the N. H. Cochran survey situated in Newton county, Tex., and described as follows: Being a strip 60 feet in width and beginning at a point in the old Newton and Orange public road, at about 50 feet perpendicular distance from the south boundary line of the J. & E. Railroad right of way west of the town of Bleakwood; thence in a southeasterly direction at 1,311 feet intersected the west boundary line of the O. & N. W. Ry. right of way, at about 1,431 feet to the east line of said O. & N. W. right of way, at 2,083 feet to a point where the new grade stops on the Newton and Orange public road, and at the south line...