*1 why petitioners file we should hold the failure of son of facts the clerk of the trial is not an statement Accordingly, informality been which has waived. it is ordered that the be reversed and the cause be remanded to that court fоr consideration of the brought points appellants’ forward brief in court. January 6, Opinion delivered 1954.
City Houston Melva R. Et Al Kunze No. A-4263. Decided December 1953. Rehearing 1954. January overruled (262 947) S.W. 2d Series *2 Burks, Sears, City Attorney, Will and Richard H. Assistant City Attornеy, Houston, petitioner. County having acquired complete at Law
general jurisdiction parties over the land con- and the right demnation suit to deterthine the to condemn and the award, court, amount of the suit district try title, upоn and an is a collateral attack invasion jurisdiction County Court at Law while the condem- pending, nation suit and the Court erred of Civil holding. not so Co.,
Davidson v. N. R. no writ Texas & O. 67 S.W. history; Ry. Tyrrell, 128 Houston North Shore Co. 786; Dist., 2d Rec. S.W. Allen v. Brazos River Con. & 2d 386. Houston, Knipp, respondent.
Ernest A. opinion delivered the of the Court. Mr. Justice Smith Houston, Petitioner, City County, Texas, against respondent, at Law of Harris
Court Huber, others, acquire an easement over and cer- across city tain land situated Houston. 19, 1949, judge May Court at Law On assess, damаges Special
appointed “to three July accordance with law.” Commis- Hearing” July 14, 1949, sioners issued “Notice of to be held on reciting person serving the made his return copy” had delivered “a true notice to “E. his Knipр” July 8, 1949. The award of the notice was. served Commissioners contains recitations that through agents attorneys, their days day the notice was served at least five service, through appeared and that “E. Huber *3 that, “We, Knipp.” Thе recites Ernest A. award further * * * undersigned damages, have assessed decide, and and order that the total amount due to the defendants * * * being $32,588.80 and to the Commissioners unable among ownership various defendants determine as imрrovements respective property said therein, and and their interests * * * damages among apportion therefore unable to said * * * * * * * * * defendants, hereby and E. we award to * * * Huber, damages, respective the totаl amount of said as their August 9, may appear.” interests This award was dated August 15, 1949, City tendered the de- and on of Houston to registry deposited the sum fendants and in the Court defendants, “for said and in order to awarded the benefit of parcel plaintiff possession of land take enable plaintiff’s in in condemnation.” The defend- described statement others, proceeding, except filed ants in this E. Huber and two award, objections pending. is now to the causе 30, 1949, September in E. filed a suit On Huber others, styled try against City and E. Huber of Houston County. Kunze, al, v. Melva et in the District Court of Harris 18, 1952, petitioner mentioned September filed in this last On alleged, summary judgment, in a motion for wherein cause part, that the suit wаs “a collateral attack proceedings pending in at Law of Harris now County, Texas.” Huber, 3, 1952, respondent, E. filed sworn October alleging summary that he
answer to the motion for America, residing Columbia, and in South was the State of participate not did he was not served with that hearing Commissioners; time that “at instituted, Knipp A. proceeding that was attorney communi- E. Huber and had not been in was not the Knipp, many affidavit of E. cation with Huber for months.” The suit, says attоrney District letter for Huber in re- addressed to E. others dated March Huber gard by to him a member of Huber’s to the was sent * * * receipt family, directly and that “after letter Attorney, personally Sears, City informed Lawrence Will W. charge Cоok, City Attorney case, then Assistant * * *, represented he had time at one Huber but that he had regarding matter, had Mr. communication from Huber agent that he not the was and that he had authority accept whatsoever to service of notice or to act any capacity for time Huber that the condemnation hear- ing was held. Statements times effect have been several communicated the affiant to Mr. Law- Will Mr. Sears W. summary judgment rence began Cook.” on the motion for 6,1952, 20,1952, on October and October overruled the motion. 20, 1952, petitioner original
On November in the con- demnation for Court at Law its temporary injunction, seeking enjoin respondent, E. Hu- ber, prosеcuting maintaining from suit in the District County, alleging, substance, Court of Harris virtue proceeding outlined, hereinabove *4 possession property alleged had lawful It involved. further substantially compiled that it had with the eminent domain stat- Texаs, utes of the of State that of the award the Commis- “recited sioners that due notice had been on all suit, defendant, said in and that the defendant Huber, appeared by had attorney, Knipp”; (emphasis his Ernest added) jurisdiction that the Court at Law has exclusive parties, to hear and determine all the issues between the suit in the District Court constitutes a collateral on attack jurisdiction. prayed its Petitioner re- that notice issue to the spondent commanding appear why him to and show cause enjoined maintaining temporarily prose- not be from cuting trespass try the title suit.
Respondent denying any filed his sworn answer that he had in directly indirectly any manner interfered with aсtion of the City prosecuting in proceeding; the condemnation alle- gations petitioner’s temporary injunction motion for to the that he had with in the effect been served notice false; notice, suit were that hе had waived had not any Respond- authorized one to waive notice or answer for him. pleads City of ent further summary judgment, as in his answer to the motion for
the facts connection the action of the Knipp; complеte that because of the lack of acquired notice the at Law has time not at pro- jurisdiction ceeding. his of in the condemnation alleged The answer land further described in the was not the as that the suit District Court same described in the condemnation statement. petitioner introduce failed to evidence application temporary injunction. for intro-
the duced in evidence the
filing original petition of date Court; to the defendants in that District the citatiоns several suit; defendants; the answers of and cross-actions some original by respond- petitions filed the first and second amended ent; listed introduced certain instruments would be suit; try in evidence trial defendant, City Houston; motion for answer sum- mary judgment affidavit filed in connection therewith original by City; copy a and the award of the suit; objections Commissioners by filed other than E. award of defendants Huber; tendering amount the written instrument showing registry Court; payment award and into the summary respondent, E. for answer of judgment the motion notice, being together showing with affidavits lack summary judgment the same evidence heard on the motion Respondent plea also abate- in the District Court. introduced рlea pre- District suit. The ment summary judgment, motion sents the same issues as the shows, pending in the far it is now District so as this record Court. December without the aid of a judgment injunction
jury denying petition for entered its stating applicant in its order thаt it “finds that shows grounds temporary injunction; and for the said issuance of things application accordingly in all denied.” This Appeals. 2d 226. affirmed 258 S.W. been the Court *5 County point Petitioner’s the Court first of error asserts that general acquired complete jurisdiction over at Law and the land right and the to condemn determine suit, and that amount of the award in the condemnation attack a collateral is respondent the District Court suit jurisdiction and an invasion only question pending. The suit is while the condemnation Law and its discretion Did trial court abuse determine is: for us to injunction? denying hold We commit error did it court and the Court judgments of the trial and that the did not be affirmed. entitled, Houston is under the Statutеs The The Texas, power eminent domain. State of to exercise the showing a special in there must be are character and taking authorizing prop compliance of strict with the law 10, erty 5 to public Sections of an owner for use. Article Statutes, inclusive, provides for the Annotated Civil Vernon’s should be manner in which notice service of notice and the sought to be condemned served. Notice to owner land presumed cаnnot any from declarations or conclusions stated be proved. proceedings, Parker v. Fort must be but City Ry. Co., 518. The Worth & Denver petitioner decree of relies on the contained in the recitations duly proof condemnation and other orders for that notice was legally respondent. proof insufficient. served This statute, “may supra, required provides The be delivering copy a by any person competent testify, by served agent attorney.” party, petitioner of such or The notice to discharge showing compliance failed to with the its burden of proof It of motion for tem statute. made no on the its porary injunction Knipp, was the agent attоrney Huber, whereas, proof or introduced respondent attorney conclusively demonstrates that agent authority not his to answer for was and had no him in the condemnation suit. filing in condemnation does not mere of the stаtement necessary. jurisdiction. He
determine landowner is Notice to the right appear until notice duly properly with the has been served in accordance statute, jurisdiction, Com the court is without damages perform authority no missioners have to assess property. act Parker which would declare a condemnation of his Co., City Ry. supra. there was v. Fort & Denver Since Worth proof properly with notice was acquired suit, jurisdiction wаs condemnation by we hold that at Law over the respondent, and, therefore, trial court not error for the it was deny expressed renders injunction. opinion we have *6 unnecessary point presented to discuss other for writ of error.
The of is affirmed. Opinion 2, delivered December 1953. dissenting.
Mr. Justice Wilson respectfully I is dissent. Here there no of title between issue city city for the admits Huber Huber. There are condemnation suit other defendants may titlе, they with whom Huber parties make an are not issue but proceeding. There the district cturt can be issue possession. only possible is value. The issue county Huber claims he was notice. general jurisdiction proceeding сourt condemnation equipped any question is to determine is about service. What gained allowing procedural aspect there to one of a be this controversy separate over in a court? It valuе be determined unnecessarily delay” cannot but contribute to the “law’s and will complicate proceedings. public condemnation interest completion public improvements within a reasonable time requires simple, effective, expeditious pro- by allowing hampered cedure. It should not be an issue service parallel while to be determined in a title suit in the district court county pending untried in court. suit is governed Ward, This situation should be Cleveland county 1063. should hold that when We duty acquired jurisdiction subject matter it had including every question to determine in that case condemnation complicated enough involving those A without service. splitting injunction issue for it between two courts. The purpose keeping suit intact.
Opinion delivered December 1953. Rehearing January 13, 1954. overruled