
    CITY OF SAN ANTONIO v. ASTORIA.
    
    No. 2010-6732.
    Commission of Appeals of Texas, Section A.
    Oct. 7, 1936.
    T. D. Cobbs, Jr., City Atty., and W. C. Davis and Jack H. Davis, Asst. City Attys., all of San Antonio, for plaintiff in error.
    Hirshberg, Mueller, Powell & Green, Mueller & Green, and H. W. Green, all of San Antonio, for defendant in error.
    
      
      Rehearing denied Nov. 19, 1936.
    
   GERMAN, Commissioner.

On December 12, 1929, the plaintiff in error, city of San Antonio, filed a petition in condemnation in the county court of Bexar county for the purpose of condemning certain property belonging to defendant in error, P. A. Astoria; such property being necessary for the widening of one of the streets of said city. Commissioners were duly appointed, a hearing had, and an' award of $7,500 was made in behalf of defendant in error. Not being satisfied with said award, defendant in error timely filed his objections in writing, and the cause was properly docketed in the county court of Bexar county for hearing as provided by statute. Pending the hearing, the city, in order to take possession of the property, in pursuance of subdivision 1 of article 3268 of the Revised Statutes of 1925, deposited with the clerk of the county court of Bexar county the. sum of $7,500 and paid all costs. This condemnation proceeding appears to have remained inactive upon the docket of the county court until after the taking effect of the act constituting chapter 75 of the Acts of the Fifth Called Session of the 41st Legislature (1930) being an amendment of article 1206 of the Revised Statutes of 1925 (Vernon’s Ann. Civ.St. art. 1206), and being in effect a re-enactment of several sections of chapter 4 of the Acts of the 38th Legislature (1923) which had been omitted from the 1925 revision. On July 16, 1930, said proceeding was by agreement transferred to the county court at law No. 1 of Bexar county, which court, by the act of 1930 above referred to, was given jurisdiction of same. In such county court at law No. 1 on December 20, 1932, an agreed judgment was entered, making effective the condemnation of the property in question, the appropriation thereof, by the city as of date February 10, 1930, and fixing the value of the property taken and damages caused to defendant in error by reason of the taking at $10,000, with 6 per cent, interest from February 10, 1930. In the judgment thus entered it is recited that the city had paid to defendant in error the sum of $7,771.81, and that defendant in error acknowledged receipt of that sum as a credit upon the judgment. It appears that this recital was upon the assumption that the $7,500 theretofore deposited by the city with the county clerk of Bexar county was still available as a payment upon the agreed judgment. It developed, however, that by reason of default of the county clerk the said sum of money was not available and could not be applied as a payment to defendant in error. Thereupon, defendant in error filed his motion in county court at law No. 1 to correct and amend the judgment of December 20, 1932, and on February 18, 1933, the parties went to trial upon this motion. It appears that the purpose of this trial was to determine whether or not the loss of the $7,500 deposited with the county clerk should fall upon the city or upon defendant in error. It is recited that after hearing the motion, the reply to the city thereto, the evidence, and the argument of counsel, the court entered the following finding and judgment: “The court, however, being of the opinion and finding that defendant’s motion to amend and correct said judgment should be granted, and that that part of said judgment, wherein it is stated that the City of San Antonio has paid on said judgment the sum of $7,771.81, and that defendant acknowledged the receipt of said sum as a credit on said judgment, should be corrected and amended, the court finding from the evidence that said part of said judgment is incorrect and does not speak the truth, in that the plaintiff has not paid on said judgment said sum, and defendant has not received said sum as a' credit on said judgment; the court finding that said judgment as heretofore rendered and entered herein, in all other respects, correctly states the agreement of the respective parties hereto.

“Therefore, it is ordered, adjudged and decreed by the court as follows: The defendant’s motion to set aside the judgment rendered and entered herein on the 20th day of December, A. D. 1932, be, and said motion is hereby, denied and overruled; that defendant’s said motion to amend and correct said judgment be, and said motion is hereby, granted, and said judgment is hereby amended and corrected so as to eliminate therefrom the statement that the City of San Antonio, plaintiff herein, has paid on said judgment the sum of $7,771.81, and also the acknowledgment by P. A. Astoria, defendant herein, of the receipt of said sum as a credit on said judgment.”

After said judgment was thus corrected and amended, it became final and no appeal was prosecuted thereupon.

The present suit was brought by defendant in error Astoria in the district court of Bexar county, and was for the purpose of obtaining a mandamus to require payment of the judgment of the county court at law No. 1 of date February 18, 1933, with interest. No question is raised as to the propriety of the action, provided the city is liable for payment of the judgment. In the district court judgment was in favor of defendant in error, and this judgment was affirmed by the Court of Civil Appeals. 67 S.W.(2d) 321.

For the first time plaintiff in error has raised in this cóurt the question of jurisdiction. It is contended that the judgment of February 18, 1933, was void because the county court at law was without jurisdiction. It is asserted that the county court of Bexar county has exclusive jurisdiction in condemnation proceedings. Without going into a lengthy discussion of the matter, we hold that by virtue of article 1206 of the Revised Statutes of 1925, as amended by the Acts of 1930, 41st Legislature, Fifth Called Session, chapter 75 (Vernon’s Ann.Civ.St., art. 1206), the county court at law had' jurisdiction to entertain this proceeding-when it was transferred to it from the-county court of Bexar county on July 16, 1930; and the judgment of that court is. not void.

Under our view of the case, it is-unnecessary to here decide whether or not the loss of the $7,500 deposited by the city with the county clerk was properly adjudged against the city. That question: was directly and conclusively litigated in-the county court at law and no appeal was. prosecuted. We are of the opinion that the question is now res judicata. The city-contends, however, that the county court-at law was without jurisdiction to determine that question. Admittedly, the court had judisdiction to litigate the question of’ the right of the city to condemn the property and the question of adequate compensation for the land taken. We think that the question of whether or not there had' in fact been a payment made to defendant and whether or not the city was entitled to a credit upon the agreed judgment was so directly related to the question of compensation that the • court undoubtedly had jurisdiction to determine-the question, and its judgment, not being appealed from, was final. Gulf Coast Irrigation Co. v. Gary, 118 Tex. 469, 14 S.. W.(2d) 266, 17 S.W.(2d) 774; Gulf, C. & S. F. R. Co. v. Ft. Worth & Rio Grande Ry. Co., 86 Tex. 537, 26 S.W. 54.

For the reasons stated herein, the judgment of the Court of Civil Appeals is affirmed.

Opinion adopted by the Supreme Court..  