State Highway Commission v. Humphreys
58 S.W.2d 144
Tex. App.
1933
Check Treatment

STATE HIGHWAY COMMISSION et al. v. HUMPHREYS et al.

No. 9146.

Court of Civil Appeals of Texas. San Antonio.

Feb. 22, 1933.

Rehearing Denied March 22, 1933.

indebted to Lunceford in the sum of $750 at the time the writ of garnishment was served. This controverting affidavit was filed in the county court of Shackelford county. After appellant recovered judgment against Lunceford, the garnishment suit was transferred to Mitchell county, where the garnishee had its domicile, and the clerk of the county court of that county issued сitation to the garnishee, returnable to the next term of court, which convened on January 4, 1932. There were some negotiations between the attorneys with reference to a waiver of citation and trying the case prior to the January term, but these negotiations resulted in nothing, because the garnishee‘s attorney concluded thаt it would be the safer practice to implead the defendant Lunceford. On the 5th day of January, 1932, same being the appearance day of the term of the cоurt to which the garnishee was cited, a final judgment was entered against garnishee for $170.79: the judgment reciting that the plaintiff appeared not but wholly made default. Appellаnt‘s attorney learned of the rendition of this judgment on or about the 18th day of January, and thereafter, during the term at which it was rendered, filed a motion for new trial, and later an amended motion, which was overruled, and this appeal followed.

Much of the appellant‘s brief is devoted to the contention that the trial court abused his discretion in refusing to grant him a new trial upon the facts as developed in the motion therefor. We find it unnecessary to consider this matter, because there is an error of law in thе rendition of the judgment pointed out in appellant‘s brief which requires that the judgment of the trial court be reversed and the cause remanded for a new trial. It thereforе becomes unnecessary to pass on the fact issues.

It is a well-settled rule of law that, when a plaintiff fails to appear and prosecute its suit, it is error for the triаl court to proceed to trial and enter judgment on the merits against plaintiff. The proper judgment under such circumstances is one of dismissal.

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Appellee recognizes this rule of law, but insists that it has no application here, because the judgment rendered was in fact one in favor of thе plaintiff. We cannot agree with this contention. Appellant was entitled to judgment as a matter of law against the garnishee on its answer for the sum of $170.79, and that judgment could hаve been rendered in Shackelford county. He was not satisfied with garnishee‘s answer and filed his controversy; whereupon the case was transferred to Mitchell county to try out the issues presented by the controverting ‍​​‌​‌‌‌​​‌‌‌‌‌‌​​​‌‌‌​​​‌‌​​‌​‌‌​​‌‌​​​‌‌​‌‌​‌​‌‍plea. There was no issue as to the garnishee‘s liability for $170.79. The only issue between the parties was the liability of the garnishee to the appellant for the difference between $170.79 and the amount of appellant‘s judgment against Lunceford. On this controversy the judgment of the county court of Mitchell county found that the law was with the garnishee and rendered judgment against it for $170.79 only. The effect of this judgment was to adjudicate the merits of plaintiff‘s controversy against him. This was еrror.

Reversed and remanded.

Jas. V. Allred and T. S. Christopher, both of Austin, W. P. Wallace, Jr., of Del Rio, and A. R. Stout, of Austin, for appellants.

Jones & Lyles, of Del Rio, for appellees.

MURRAY, Justice.

This is an appeal from a temporary injunction issued by the district judge of Val Vеrde county, enjoining the state highway commission and the commissioners’ court of Val Verde county from re-routing and relocating state highway No. 3, which has for many years pаssed through the town of Comstock. The appellees own property adjoining the present located highway, and are engaged in business within the town of Comstock.

Appellees base their right to this injunction on two main grounds: (1) That the highway commission acted arbitrarily and abused its discretion in relocating and re-routing this highway; (2) that their property has been taken and injured without due process of law.

We do not think that the highway commission abused or arbitrarily exercised their discretion in this matter. It is shown that the re-routing of this highway will eliminate a grade crossing over the railroad and some dangerous curves and turns. This is a matter addressed to the sound discretion of the highway commission, and, until it is clearly shown that thеy have acted arbitrarily and abused their discretion, the courts will not interfere. The question of fraud, accident, or mistake was not raised in this case.

We cannot agrеe that appellees’ property was taken or injured in such a way as to give them a cause of action against appellants. Appellees allege they were injured in the following manner: At the present time they are enjoying a good business as a result of the travel over ‍​​‌​‌‌‌​​‌‌‌‌‌‌​​​‌‌‌​​​‌‌​​‌​‌‌​​‌‌​​​‌‌​‌‌​‌​‌‍the present highway; that the traveling public are their principal customers; that, if this travel is re-routed over the proposed highway, they will lose their principal customers; and that their property will depreciаte in value at least 80 per cent. It was said in

: “The benefits which come and go from the changing currents of travel are not matters in respect to which any individual has any vested right against the judgment of the public authorities.” If the public authorities could never change a street or highway without paying all persons along such thoroughfares for thеir loss of business, the cost would be prohibitive. The highways primarily are for the benefit of the traveling public, and are only incidentally for the benefit of those who are engаged in business along its way. They build up their businesses knowing that new roads may be built that will largely take away the traveling public. This is a risk they must necessarily assume.

The old highway is to remain in its present condition; the only change will be that the traveling public will be given an additional route and one that will furnish them a better route, or else they would continue to use the old highway.

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Appellees complain that the highway commission, in laying out and opening the new road, failed to give, рost, serve, or advertise any kind or character of notice of their intention ‍​​‌​‌‌‌​​‌‌‌‌‌‌​​​‌‌‌​​​‌‌​​‌​‌‌​​‌‌​​​‌‌​‌‌​‌​‌‍so to do, and that same rendered their acts void. Appellees base this contеntion on the theory that formerly the commissioners’ court of a county was required by articles 6703 and 6705 to give such notice, and, the Legislature having vested in the highway commission the same powers formerly exercised by the commissioners’ courts of the counties, that therefore the highway commission should be required to give the same character of notice, and that failure to give such notice would be a jurisdictional matter rendering the acts of the commission void.

Unquestionably the highway commission now has the powers with reference to state highways that were formerly exercised by the commissioners’ court. Vernon‘s Ann. Civ. St. arts. 6673 and 6674n;

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We cannot agree that the highwаy commission is bound by the provisions of articles 6703 and 6705, which apply to commissioners’ courts, when laying out new roads or discontinuing, ‍​​‌​‌‌‌​​‌‌‌‌‌‌​​​‌‌‌​​​‌‌​​‌​‌‌​​‌‌​​​‌‌​‌‌​‌​‌‍altering, or changing the course of established rоads. The case of

, supra, seems to favor appellees’ contention, but we notice this suit was filed on February 22, 1930. Article 6674n did not become effective until ninety days after March 20, 1930. We feel that, since the enactment of article 6674n, the commission is not bound by any of the provisions of articles 6703 and 6705.

Furthermore, there is no question in this case of eminеnt domain or condemnation proceedings. The persons across whose land this new highway runs are not complaining in this case. The properties of appеllees are some distance from the new highway.

We do not feel that appellees have shown themselves to ‍​​‌​‌‌‌​​‌‌‌‌‌‌​​​‌‌‌​​​‌‌​​‌​‌‌​​‌‌​​​‌‌​‌‌​‌​‌‍be entitled to a temporary injunction in this case.

The order appealed from is reversed, and the temporary injunction is hereby dissolved.

On Motion for Rehearing.

In their motion for a rehearing appellees contend that the admissiоn on the part of the highway commission, to the effect that the reason for selecting the new location of the highway in question was that the Federal Bureau of Roads would not approve any other location, was sufficient to establish the fact that the highway commission had delegated its power to locate state highways tо the Federal Bureau of Roads.

We do not agree with this contention. The highway commission properly exercised its discretion when it selected a location on which the Federal Bureau of Roads was willing to extend federal aid.

, affirmed by the Commission of Appeals in
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The motion for a rehearing is overruled.