Thе relator, city of Big Spring, filed with Hon. J. S. Garlington, county judge of Howard county, its petition for condemnation of certain property within its limits belonging to L. E. Coleman and othеrs. Such petition (or statement) is apparently in conformity with the law in all respects. The city and property owners agreed upon the commissioners to bе appointed, and filed with the county judge a joint written request for such appointment, but said county judge refused to appoint the commissioners agreed upon, and refused to appoint any other persons as commissioners. Whereupon relator filed its verified petition for mandamus in this court, reciting in detail its desire to acquire the property sought to be condemned, the necessity therefor, and showing compliance with the eminent domain statutes. It recites the agreеments of the parties as to the commissioners to be appointed and that respondent, though requested to do so, has refused to appoint the cоmmissioners agreed upon, or any other commissioners, and says that he will not do so, and that therefore no progress can be had in the condemnation prоceeding, that it has no remedy at law, etc., and prays for judgment requiring respondent to appoint commissioners. All of the landowners have intervened, adoрted the allegations of relator, and prayed for the issuance of a writ of mandamus requiring respondent to appoint the commissioners agreed upоn. Respondent, although notified, has not answered.
Article 1824, R.S. 1925, as amended, Acts 1929, 41st Leg., c. 33, p. 68, § 1 (Vernon’s Ann.Civ.St. art. 1824) provides: “Said Courts [Courts of Civil Appeals] or any Judge thereof, in vacation, may issue the writ of Mandamus to compel a Judge of the District or County Court to proceed to trial and judgment in a cause, returnable as the nature оf the case may require.”
“A cause is a suit, litigation or action; any question, civil or criminal, contested before a court of justice.” Black Law Diet. p. 181.
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“Casе and cause are synonyms.” Blyew v. United States, 13 Wall. (80 U.S.) 581,
This court’s authority to issue the writ it limitеd to a situation wherein there is a cause pending in a district or county court wherein the judges of said courts have authority to proceed to trial and judgment thеrein. Article 3264, Rev.St., provides that, when a statement or petition, such as was presented to the respondent here, is presented and filed with him, he shall appоint special commissioners to assess the damages, giving preference to those that may be agreed upon between the parties; that the commissioners shall be sworn; that they shall set a time and place for hearing and issue notice to the interested' parties; that-such notice shall be served and a hearing had; that, when the commissioners have assessed the dam-* ages, their decision shall be filed with the county judge. “If no objections to the decision are filed within ten days, thе county judge, shall cause said decision to be recorded in the minutes of his court, and shall make the same the judgment of the court and issue the necessary prоcess to enforce the same.” Rev.St. art. 3266, subd. 7. If dissatisfied with the decision, a party has 10 days within which to file his objection' thereto, and until after this is done there is no causе pending in the county court, and such proceeding is not within the jurisdiction of the county court to hear and determine. Article 5, § 16, Const, of Texas. The commissioners appointed cease to act as such on the filing of their decision and the jurisdiction of the county court attached subsequently only in the event that the award оf the commissioners was objected to in the proper time and manner.
“To thus invoke the jurisdiction, of the county court it was necessary that appellants shоuld, as they did do, file with the county judge, within ten days after the decision of the commissioners was filed with him, their objections thereto in writing'; and, in order for the county court to proceed, to hear and determine the cause as- in other civil cases, it was necessary that citation be duly issued and served upon ap-pellee, or that appellee should make a voluntary appearance.” Fitzgerald et al. v. City of Dallas (Tex.Civ.App.)
“The effect of the filing of the objections is ordinarily to vacate the award Of the commissioners. Such action also marks the attachment of jurisdiction of the county court and converts the original statеment or petition into a cause of action to be ‘tried and determined as in other civil causes in the county court.’ ” 16 Tex. Jur. § 162, p. 791, 792.
From the institution of condemnatiоn proceedings and until after objections filed to the award of the commissioners there is no cause in the county court. The only action of the county judgе during such proceeding is his acts in appointing appraisers and filing the petition and award of the commissioners and entering the judgment of the commissioners as thаt of- the court. Such acts he does not perform as a court, but in doing such acts he is performing ministerial duties required of him by the Legislature. Suppose we should grant thе writ prayed for and direct the county judge to proceed to trial and judgment in a cause it would be'impossible for him to perform such mandate of this court because there is no cause pending in the county court, and he has no right nor authority to proceed to trial, and the only judgment that he can enter is the judgment of thе commissioners and in entering their judgment as that of the court he is performing no judicial function. He has no discretion in the entry of this award as the judgment of the county cоurt, but is required by statute to enter the award as prepared by the commissioners. It is not until after some party to this special proceeding has filed his objections, removed the proceeding to the county court, and citation is issued and served that there is a cause pending in the county court on which he can prоceed to trial and judgment.
In the view that we take of the matter, this condemnation proceeding at its present stage is analogous to the filing of a claim bеfore the Industrial Accident Board. We do not believe that it would be seriously contended that under the statute in question we would have the authority to direct such boаrd to proceed to trial and judgment. The courts of civil appeals have no original jurisdiction to grant writs of mandamus except where they are expressly authorized to do so by statute. Fan-
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nin County v. Hightower,
“The original jurisdiction of a court of civil appeals cannot be successfully invoked if the ordinary remedy by suit for mandamus in the district court and appeal to the appellate court is available and adequate.” 28 Tex.Jur. § 48, p. 603; Love v. Wilcox,
Constitution, art. 5, § 8, provides that the district court “shall have general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided by law or this Constitution.” It has been determined that the district court has jurisdiction to “compel the performance of a ministerial duty by a county judge acting as such, and not as a court.” 28 Tex.Jur. § 49, p. 606; Ferguson v. Leigh (Tex.Civ.App.)
In the case of Prince v. Miller, Dist. Judge,
The petition for mandamus is dismissed without prejudice.