160 S.W.2d 1003 | Tex. App. | 1942
At the July term, 1941, of the county court of Montgomery county, judgment was entered against appellants, E. A. McIntyre et al., condemning "a road, right of way and easement" across their land in favor of appellee, the State of Texas, and awarding appellants damages in the sum of $400. Appellants have regularly prosecuted their appeal to this court. The record is before us without a statement of facts.
Appellants' first proposition is that the lower court "was wholly without jurisdiction" to hear and determine the case. The point made is that the original petition for condemnation was filed on the 22d day of April, 1941, with and by the county clerk, while the statutes, Articles 3264 — 3271, R.C.S. 1925, Vernon's Ann.Civ.St. arts. 3264-3271, required that it be filed with the county judge. On the face of the *1004
record, appellants' point is supported by State v. Davis, Tex. Civ. App.
The following decree was entered in favor of appellants for the damages assessed by the jury: "It is Further Ordered, Adjudged and Decreed by the Court that Defendants have judgment over and against The State of Texas, Petitioner, for the sum of Four Hundred and No/100 ($400.00) Dollars, as damages sustained because of the taking, and acquiring of the above 1.90 acres in fee for said road an right-of-way, and 0.40 acres as an easement as above described, for the purpose of constructing, laying out, widening ant reconstructing said State Highway #19, as herein specified and designated, and that Defendants have their execution and such other and further writs may issue as are necessary and proper for the enforcement of this judgment."
The second point is that this part of the judgment of the lower court is "unenforceable in law, and therefore void." After this case was tried in the lower court, the amount of the damages assessed by the jury was deposited by appellee's agent with the county clerk for appellants' benefit. This is shown by the affidavit of the county clerk: "My name is Covy A. Beard, and I am the duly elected and qualified County Clerk of Montgomery County, Texas. During the July Term, A.D. 1941, of the County Court of Montgomery County, Texas, Case No. 1735, styled the State of Texas vs E. A. McIntyre, Et. Al., was tried in the County Court of Montgomery County, Texas, and final judgment was entered therein on August 8, 1941. I further state that after said judgment was entered by J. W. Strode, Judge of the County Court of Montgomery County, Texas, the sum of Four Hundred and No/100 ($400.00) Dollars was deposited with me by Geo. B. Darden, Attorney for Appellee, for the right-of-way desired in said suit, as above styled, plus damages awarded Appellants, and said sum is being held by me in accordance with provisions of Art. 3268, and will be paid to Appellants if their appeal of said case to the Beaumont Court of Civil Appeals, under Docket No. 3977, is not successful."
The deposit of the amount of the damages assessed by the jury obviates all constitutional questions raised by appellants. Traders' Compress Co. v. State, Tex. Civ. App.
The judgment of the lower court is affirmed. *1005