*1 al., Appellants, et ARONOFF Rochelle AUTHORITY, TURNPIKE
TEXAS Appellee.
No. 15208. Appeals of Texas. of Civil
Dallas. 11, 1957.
Jan.
Rehearing Feb. 1957. Denied Dallas, Bader, appellants.. &
McKool Purnell, Wayne Locke, & Locke O.. Woodruff, Dallas, appellee. *2 343 DIXON, overruled, motion Chief stating the court that Justice. grant a jury trial inter- would appeal judgment This is from a fere ordinary with and originally filed proceeding condemnation Appellants 'Court’s then business. January 23, appellee Turn- by Texas asked leave to their announce- withdraw taking pike Authority the whole involving of ready. ment request Their was denied. improve- of a fee with interest two lots by appellants owned Rochelle Aron- ments appellee Meantime had informed the in- off and a leasehold Nathan Aronoff and though court that appellee had not asked by Cortemeglia and Ma- terest owned Luke for a willing go trial and was Cortemeglia liquor store located on rie in a trial jury, anticipate without a one lots. that the case before be tried preparations and had accordingly; January 30, special On commission- and if try unwilling court was report awarding ers filed their the case before a —March appellants $40,081.62 lants Aronoffs appellee agree to a con- 1956— Cortemeglias $4,000 their interests. for tinuance of the trial to future some date appellants objections All to the com- filed for a apparent trial. After it became decision, appellee’s missioners’ but admitted proceed court was determined to to condemn. Thus the issues left a non-jury trial, appellee further stated to be determined were values the two it would delay in getting avoid interests taken. together, its witnesses there should be Appellants delay such asked for a trial. The it would ask the court’s forbear- court was so informed. Sometime ance. Janu- through ary parties both their attor- The case went to trial jury. without a appeared neys in court asked for a set- court judgment The rendered for the Aron- request ting. response to their the case $40,000 Cortemeglias offs and for the set for trial March 1956. The rec- $1,800. The Aronoffs ord shows that it was understood and antici- $40,081.62 down drawn which had been is,
pated by parties by appellants, —that awarded to them the commissioners and and the trial trial —that deposited County which had been with the jury. would be to a Clerk. So the court’s ordered ap- 1956all them to refund sum of The $81.62. pellee court announced Cortemeglias, having withdrawn the Monday morning. trial. It was a commissioners, awarded to them juryA was available or would be available $2,200. ordered to sum were refund the junc- usual about At 10:00 o’clock. the Aronoffs Cortemeglias Both court, upon examining ture perfected appeals. sheet, discovered that no paid. thereupon appeals together. The court They an- The briefed present appeal nounced that the case would not be eleven tried follows: jury, tried The “(1) but would be trial court erred and to a before the abused his objected Appellants in denying alone. hur- discretion overruling ap-' riedly paid pellants’ jury. motion for a Nevertheless the (2) persisted its refusal court erred and abused his dis- Appellants denying depriving filed a written motion ask- cretion defend- ing compelling forth in consid- ants proceed surrounding detail the circumstances erable without a setting of jury. (3) the case as The trial court erred and abused failure refusing sooner to fee. The his discretion in to reset or con- clearly testimony as to be weight of the later date cause to some tinuing this wrong.” appellants to compelling stead of (4)
to trial without
*3
appellants’ first
It will be noticed that
in
his discretion
abused
court erred and
court’s
four
based on the trial
withdraw
to
appellants
refusing to allow
permit
jury. We shall
refusal to
trial to a
ready.
(S) The
their announcement
points togeth-
therefore
four
discuss these
prejudiced
biased
judge
trial
er.
appellants
attorney for the
against the
from
appellants
determined
and was
I,
Article
15 of the Constitu
sec.
deprive
case to
this
commencement of
Texas,
provides:
tion of
Vernon’s Ann.St.
award
jury
and to
a
trial
by jury
remain
right
“The
of trial
shall
commis-
appellants amounts less than
in
inviolate.” Nevertheless trial
did
trial
(which
sioners’ awards
Texas is
an
in civil
not
absolute
fair
a
not receive
do)
appellants did
procedural
subject
is
cases.
It
to .certain
therefore,
and,
this
hearing,
impartial
jury
rules. One
rules
a
of these
is that
(6) The
be
aside.
judgment should
set
days prior
paid
fee shall be
ten
to trial.
hearing on the
during the
trial court erred
Rule
of Civil
Vernon’s Texas Rules
in con-
for a new trial
amended motion
Procedure.
reporter and in instruct-
trolling the court
undisputed
It
an
in
case that
is
fact
only the
reporter to record
ing the court
comply with the above-
did not
on other occasions
judge’s comments and
provision. They
jury
not
The trial
(7)
all.
make no record at
to
trial,
jury
although a
until
trial
permit
at-
refusing
in
to
court erred
pre-
had been demanded and the case
any
making
appellants from
torneys for
viously
given setting
jury
a
case.
a
rulings and actions
objections
court’s
to the
refusing
permit said
in
to
recognized in
It is
our law and
exceptions.
(8)
making
bills
parties
here that Rule
conceded
allowing E. L.
The trial court .erred
V.T.R.C.P.,
discretionary rather
than
is
testify,
Bale,
appellee, to
over
a witness
mandatory;
that when the Rule has
objections
appellants, as to the sale
with,
complied
a trial court’s de
not been
Industrial,
price
at 500 S.
deny
grant or
a
trial will
cision to
67/415,
in Block
11 and
Lots
except
appeal
be reversed on
on a
not
comparable sale
as a
was introduced
which
discretion.
showing of abuse of
Under
property.
(9) The
trial
to the
circumstances will it
held that a
be
Bale, a wit-
allowing E. L.
court erred in
court has abused such discretion? We
appellee,
testify, over the ob-
ness
question
the law on the
to be that
believe
appellants,
price
sale
jections of
to the
may
party
not be denied a
which was
5 and in Block
of Lots
67/415
dilatory
may
pay
have been
though he
comparable sale to the sub-
as a
introduced
(1)
fee if
ing the
(10) The
erred
ject property.
trial court
injure
trial will
Bale,
permitting E. L.
a witness for
party;
grant a
(2)
trial will
testify,
objections
over the
appellee, to
docket,
prop-
sale
price
as to the
appellants,
ordinary
with and
interfere
erty
at 1901-3-5 South Industrial
located
handling of the court’s business.
as a
sale
was introduced
which
property.
(11)
think that under the
We
record
granting judgment
erred
Luke
must
instant case it
be held that
Cortemeglia
Marie
trial would
in the sum
not have
Vince
wholly
party.
adverse
operated
sum
because said
’
jury.
who had demanded a
against
overwhelming
sufficient
mediately
appellants paid
But
thereafter
by appellants.
demand was
joined
Under the circumstances it must
appellee, expecting a
ordinary
held that the
requesting a
appellants in
court’s docket would
been inter-
court know-
not have
the case as
fered
impeded
with or
court had
requested,
jury had been
ing that a
set
proceeded
originally
trial as
1956.
the case for trial
planned.
Rather
it is more accurate
parties appeared
date all
say
unexpected
plans
change
adverse
Appellee, the
to a
from a
willing
non-jury
trial to a
it was
party,
court that
told the
*4
a disrupting factor
cir-
jury notwithstand-
which under the
trial before a
jury
cumstances
payment of the
tended to interfere with
ing appellants’ belated
the
orderly
fee,
as
expressed willingness
the court’s business
a
and even
planned.
This
among
allow
is shown
postpone the
in order to
case
things by
by appellee’s
the
circum-
statement made
jury
a
trial. Under such
lants
attorney when
grant
he realized that the court
well be said that
stances it cannot
was
jury
determined not to allow a
trial.
jury
operated to
a
trial would have
Unexpectedly facing a new and shorter
party.
trial,
time schedule for
of the
the duration
remains then for
to consider wheth-
us
he informed the court that
would
jury
er the
would
to assemble his witnesses in time for the
disrupted
docket would have
prompt presentation
evidence,
of his
but
seriously
impeded
the
interfered
delay
occurred
asked for the forbear-
ordinary handling
the court’s business.
ance of the court.
After
careful consideration of the whole
a
early case,
Plummer,
In an
Allen v.
71
record,
are convinced that the answer
we
546,
672,
673,
Tex.
9
page
S.W.
our
negative.
must be in the
Supreme
been,
“It has
in ef-
said:
fect,
court,
3064,
held
that articles
appellants’
In overruling
motion for a
3066,
Statutes,
of the Revised
which directs
jury trial,
judge
stated that “If
the
jury
that the demand for a
shall
trial,
the
court were to
a
[trial]
paid upon
be made and the
fee
interfere with and
day
term,
strictly
first
of the
are not
man-
ordinary handling
of the court’s busi-
datory, and that the failure to make the
sincerity
ness.” We do not doubt
payment
on that
does not
forfeit
judge,
the trial
we
are convinced that
right
to have a trial
such
when
his conclusion was
on an
based
erroneous
prejudice
failure does not
analysis
undisputed
of the
facts. The un-
opposite party. Allyn Willis,
65
v.
disputed
are,
facts
as we have
65;
Goldfrank,
Gallagher
Tex.
v.
Tex.
63
stated,
prior
that several weeks
to March
473;
132;
Blackshear,
Hardin
19,
v.
60 Tex.
1956 both
had
Co.,
Berry
case,
v.
& N.
court and asked for
Railroad
[Texas
O.]
Applying
346 Bank, v. Lincoln 84 19 court and the Nat. Tex. S. opinion,
in his
the term of
379;
admit of W.
Ever
Western Union Tel. Co. v.
state
docket would
of that
90;
heart,
existing
Tex.Civ.App.
reached at the then
S.W.
fact,
Paggi, Tex.Com.App.,
Blair v.
Conceding that such was
S.W.
term.
639; Creglar
Tex.Civ.App.,
affairs
Hyde,
fail
that this condition
we
to see
delay
plaintiff’s
S.W.2d 783.
brought
about
payment
paying
If the
As we believe
court’s refusal
under
Monday,
result
had been made
re-
grant appellants’
circumstances
By failing
precisely
have been
the same.
error,
quest
reversible
day, the
deposit
fee on the first
we sustain
points
first four
his
plaintiff
not so far forfeit
appeal.
the dis-
trial that the court
merely
cretion to refuse it
because
Appellants’ fifth,
sixth
seventh
delayed
get-
thereby be
defendant would
allege bias
prejudice
on the
delay in the
hearing,
ting
danger
trial judge
*5
the
of such a nature as
de-
by the
hearing
having
been caused
prive appellants
fair
rec-
trial. The
deposit
the time
failure
make the
at
regrettable
ord discloses that
took
scenes
specified in the statute.”
place during the
and
regrettable
things were said and done.
289, 290,
Sharp,
In
Tilton v.
S.W.2d
explaining
defending
statements
Appeals
the
said:
“The
Civil
of
actions,
appear
his
which statements
in the
one,
of trial
is a valuable
Appellants present
record.
of
side
litigant,
be denied
even
will not
controversy by
the
bystanders’
means of
dilatory
complying
though he has been
in
exception.
bills of
we
Since
have
(Rev.St.
provisions
the
of the statute
concluded that
the
of
the
seq.),
grant
2123 et
the
art.
unless
court must be reversed because of
re-
the
orderly
ing thereof will interfere with the
fusal to allow appellants
jury trial,
we
in
court’s
or
some
handling of the
fifth,
see no
pass
need to
on the
sixth and
way operate
injury
adverse
of
points.
seventh
do so
To
would serve no
Hemman,
party. Hemman v.
Tex.Civ.
purpose, especially
useful
happen-
since the
313;
App.,
Lincoln
Petri v.
Nat.
S.W.
complained
ings
surely
of
will not occur
**
*
Bank, 84 Tex.
edge delayed courts are had testified subsequent subject to the values by previ of disposing cases land and of improvements separately consuming explana more ous cases time the anticipated opinion of their as to tion the total than was the court when value taken settings were made. In condemnation. view by way facts, we Thereafter of above have concluded that rebuttal Bale, justified who refusing appel fered witness testified that was $19,920, subject land valued request jury.” at lant’s also Petri See foot, erly im- per square propounded hypothetical questions.) $1.40 provements $13,925, val- making a total But that at is not the situation before us. $33,845. he explaining Though uation how opinion Bale’s partly was based per square figure at his gained arrived information from reading $1.40 land, Bale listening, foot as value of the he personal himself had knowl- edge values, properties testified about the sales three and their pieces though property. negotiated actually He had not he nego- had not himself himself, part the three tiated the sales sales of them. —but part his information about them —of In Houston Lighting & Power Co. sources, necessarily derived from other Daily, Tex.Civ.App., pages S.W. cluding property. To owners of the 321, 322, Judge Pleasants of the Galveston that extent of the data on which Appeals Blase, Court of “H. said: a wit- opinion may based his be said be hear- appellees, ness for testified that he resided say. about 7 miles Rosenburg and knew appellees’ There where land is much in the record is across which evidence power lant’s line qualification constructed, relative to Bale’s as a witness line; question seen the on the farm- of real At estate values. ing county twenty- the time business in that since 1900 trial he had been years was familiar five with land values around Ro- the real estate business senberg section, years fifteen and in his had heard of appraisal business. Among professional offers, purchases sales and organizations thought *6 prepared opinion give he was an which he to as to was a member are the American land; the value of the Right-of-Way during Association, National Asso- ciation, years he lived there he known of Society American Appraisers, vicinity, sales in around Society had heard Appraisers of Residential and the prices land, were asked for had heard year Dallas Real Board. at- Estate Last made, and, putting offers all of these facts special tended a course in real estate con- together, qualified express he felt to an demnation Southern at Methodist Universi- opinion toas the reasonable fair market ty, year before that attended appellee’s neighborhood; value of land in Houston, similar course in Texas. Gener- appellees’ that he knew the character of ally he takes a seminar course in the sub- put. land and which it could the uses to j every year. ect somewhere * * * Appellant’s objection the testi- to acquainted He testified that he was with mony goes of these witnesses the weight present property values of near South on or admissibility not the of their testi- Dallas, Industrial Boulevard in which mony.” Ry. In Fort Worth & R. G. Co. v. property area the is He located. 202, Hickox, Tex.Civ.App., 103 S.W. appraisals had conducted extensive objection is said: “Another page area, had examined recent sales in the testimony is of these witnesses that their comparable area and areas. He was' ac- hearsay, market value is evidence as to personal quainted with and had knowledge predicated upon they information that independently possessed, up- but was based properties. by was stated or told them on what have some knowledge who claimed to others * * * opinion testimony market value of horses.
In our ob objection might admissible. We are be true that is well to was aware jected testimony evidence the. witness opinion is not admissible as to the taken * * * entirely as the evidence of opinion is based hear Couch when Faulkenbury a rule (We witness different say or data. concerned the facts have some actual opinions given prop- applies. in answer Fie did seem to here value, independent knowledge as to market the court’s docket. The rec- of information received ord that he had here shows that both were conditions and, parties; eliminate negatived. if we were to Therefore were en- Couch, evidence of the witness titled to a be sus- judgment the court below could As we opinion stated in appellants, our upon tained value fixed the estimate of appellee, asked for a However * * * ques- Faullcenbury. being no there appellee objects to our statement that both Faulkenbury’s admissibility tion attorneys appeared in asked evidence, could judgment as to value case, a setting of the informing testimony properly upon rest that it was a case. Our statement Dallas, City witness.” See Cole v. also based on a of the record as follows: Tex.Civ.App., and Mc- 229 S.W.2d Evidence, Ray, Cormick and Texas Law From motion trial: 638, pp. sec. We overrule 808-809. in January plaintiff “That points. eighth, lants’ ninth and tenth defendants, attorneys, appeared their before this setting Court for a of this case point appeal is that Appellants’ last as close setting possible to number one Cortemeglias’ judgment for the in order that the case could be tried. At the against is insufficient and leasehold interest they Court,, time that before the overwhelming weight of the evidence. they requested also in another case judg- .already As we have decided which was set at the same time this case grounds, ment reversed on other must be time, was set. At that both attorneys in- point. pass for us on this there is need no the Court that these cases were to n formed opinion Because we are of juries, be tried and it would take about appellants a trial was refusal to cases, and a half to and that error, is reversed reversible they wanted these cases be set on a and remanded. Monday they so that get would be able to witnesses, get trial without *7 * * * Rehearing. question. That both for anticipated both sides have and made clients they In to show that order particular available time for this hear- notwithstanding were entitled to a upon ing, based the fact that it was time, fee on it their failure to jury, tried before a having to> necessary negative them to both trial before the Court makes might which defeat their re- the conditions * * impossible secure the witnesses words, appellants quest. had the (Emphasis ours.) establishing allow them burden of (1) would not jury trial appellee’s From statement of counsel: party, (2) would not set forth in the “As to dates motion of hand, docket. On the other defendants, the dates and facts related demand for a defeat by attorney for defendant are sub- therein circumstances, appellee needed under stantially correct true and best of only establish one—either one —of the my knowledge and belief.” say, appellee is to That conditions. allow Appellee’s that to rehearing show motion for over- injure appellee operate to ruled.