345 S.W.2d 807 | Tex. App. | 1961
Initial proceedings to condemn a strip of land for highway purposes in the City of Beaumont were instituted by the State of Texas against Mrs. Alma Petkovsek as owner and Mrs. Mickline Branch as Lessee thereof. The strip comprised 1.5714 acres of land. Formalities of Art. 3264, V.A.C.S., having been complied with, the commissioners assessed the value of the strip at $32,000, and damages to the remaining property at $650. Of this total, $32,650, they awarded Mrs. Branch $3,000 as lessee. The State thereafter filed its objections to the award and appealed to the County Court of Jefferson County at Law. Pending the appeal it deposited $29,650 in the registry of the court, payable to the order of Mrs. Petkovsek, and $3,000 to the order of Mrs. Branch, each of whom thereafter withdrew their respective awards.
The appearance of all parties having been noted in the record, the cause thereafter proceeded to trial in which all parties stipulated that the only issue before the court was that of damages. In answer to the one special issue submitted, the jury found the overall value of said land with improvements thereon to be $35,000. Proof was not made of damage to the remaining land. Cognizant of the awards theretofore paid and received, the court thereupon entered its judgment investing title to the land in the State and decreeing payment .by the State of $2,350 to Mrs. Petkovsek and Mrs. Branch jointly. The State has appealed to this court in dissatisfaction with the jury award. Cross points of error of appellee Petkovsek complaining of the inadequacy of the sum apportioned in the judgment between herself and Mrs. Branch are considered in the latter part of the opinion.
The appellant’s two points of error urge that the verdict is not supported by any evidence and in the alternative that it is contrary to the overwhelming weight of the evidence. Under such points, briefed together, the appellant points to the fact that appellee Petkovsek called only one witness
In the circumstances this court is precluded by the rules relating to motions for new trials from affording the relief for which appellant prays. Rule 320, T.R.C.P., particularly prescribes that no ground not specified in a motion for new trial (where such motion is required) shall be considered on appeal. Also, see Rules 321, 374, T.R. C.P. We have carefully examined the appellant’s motion for new trial and we find no assignment of error therein which raises the question in the trial court of the exces-siveness of the jury’s verdict. Such an assignment was a prerequisite to our consideration of the question. Collins v. Smith, 142 Tex. 36, 175 S.W.2d 407. The appellant having evidenced no desire that the judgment of the trial court be reversed and remanded by reason of its points of error, and we being precluded from ordering a re-mittitur in the circumstances, the appel-lant’s points must be overruled. We think it not improper to say, however, that we have nevertheless carefully weighed all the testimony and circumstances regarding the value of the land and are convinced that the value placed thereon by the jury is not contrary to the greater weight of the evidence so as to require a reversal of the trial court’s judgment, or a remittitur of any portion thereof.
The essence of the argument under the cross points of error of appellee Petkovsek, is that in entering judgment on the verdict of the jury, the trial court should have disregarded the sum of $3,000 which was paid to Mrs. Branch as hereinbefore related, thus establishing the sum of $5,350 as the value of the Petkovsek property in excess of the $29,650 previously received by her. Asserting a dispute to exist between herself and Mrs. Branch regarding the validity of the lease, she then appears to contend that the court should have ordered said excess paid into the registry of the court pending the establishment of the appellees’ rights thereto.
Contrary to the assertions in the brief of appellee Petkovsek, the record in this appeal is devoid of any evidence concerning a dispute as to the validity of a lease existing between the appellees herein, either in the hearing before the special commissioners or the trial court. No objections were raised in the trial concerning the apportionment of the commissioners’ award, and it is presumed in the circumstances that they applied the correct rule in assessing the value of the parties’ separate interests; viz., the overall value of the land, inclusive of the value of the leasehold, as though both estates were in a single ownership. Reeves v. City of Dallas, Tex.Civ.App., 195 S.W.2d 575; City of San Antonio v. Sullivan, 23 Tex.Civ.App., 658, 57 S.W. 45. For ought that appears in the record, the parties appellee accepted their respective awards as having been validly ascertained by the commissioners, subject
All points of error are overruled, and the judgment of the trial court is affirmed.