DENTON COUNTY, Petitioner, v. G. H. BRAMMER, Jr., et ux., Respondents, 361 S.W.2d 198

SMITH, Justice. In February, 1953 special condemnation proceedings were instituted by Denton County, Texas, to condemn land owned by the Brammers, in which the Brammers filed timely objections to the award ($800.-00) of the Commissioners, but delayed for a period of seven years after filing their objections in the county court to have citation issued and served, and allowed a period of five years to elapse after their withdrawal of the Commissioners’ award before obtaining a setting and trial in the county court of their claim for compensation and damages.

For convenience, the parties will hereafter be referred to as Denton County and Brammer. On December 12, 1960, seven years after filing his original objections and exceptions, Brammer filed in the county court an instrument designated as “Defendants’ Amended Objections to Award of Special Commissioners”. Denton County and Brammer stipulated that no citation' was ever issued or served. No waiver of service of citation is disclosed by the record.

However, on December 13, 1960, Denton County filed its original answer to Bram-mer’s amended objections and exceptions to the award of the Commissioners, and, among other defenses, pleaded that Bram-mer had abandoned his “appeal” as a matter of law, and moved the court to dismiss such “appeal”. The court overruled the motion to dismiss. Brammer offered no explanation or excuse for the long delay between the date of filing the original objections and exceptions and the filing of the amended objections and exceptions. The trial court simply overruled Denton County’s motion, apparently without hearing evidence.

Thereupon, Brammer, having stipulated that Denton County’s proceedings were regular and the county had the right to condemn the land sought in the cause, and that the Denton County Court had jurisdiction of the subject matter, the case proceeded to trial only upon the issue of the value of the land to be taken, and the issue as to the damages to the remainder of Brammer’s land by reason of such condemnation and taking.

It was also stipulated that all values and damages were to be fixed as of April 2, 1953, the date on which Denton County deposited with the County Clerk of Denton County, Texas, the sum of $800.00, the amount of the award of the special Commissioners. Based upon jury findings and the stipulation of the parties, the trial court entered its judgment for Brammer for the sum of $4,956.00, together with interest at the rate of 6% from April 2, 1953, on the excess of the amount awarded by the jury verdict over the Commissioners’ award, and awarded Denton County the fee simple title to the land involved.

The Court of Civil Appeals denied Brammer the recovery of interest awarded by the trial court, but in all other respects affirmed the trial court judgment. 350 S.W.2d 888. Each party is here with an application for writ of error. Brammer’s application has been granted because of the granting of the application of Denton County.

The question of law presented to this Court by Denton County is: Whether the trial court abused its discretion in failing to hold that the circumstances of the unexplained failure of Brammer to cause citation to issue, and the undisputed evidence that Brammer waited for a period of five years after having withdrawn the $800.00 deposit (the award of the Commissioners) before obtaining a setting and trial of his claim for compensation and damages, raised a conclusive presumption that Brammer had abandoned his objections.

Brammer complains of the judgment of the Court of Civil Appeals in so far as that judgment reversed the judgment of the trial court awarding interest. It is our opinion that the trial court did abuse its discretion in failing to hold that the circumstances above mentioned raised a conclusive presumption that Bram-mer had abandoned his objections.

It follows, therefore, that the judgments of the trial court and the Court of Civil Appeals must be modified as follows: Deny Bram-mer a recovery for all sums of money in excess of $800.00, the amount of the award of the special Commissioners; affirm the judgments of both courts awarding to Den-ton County the fee simple title to the land involved; and affirm the judgment of the Court of Civil Appeals denying Brammer a recovery of interest. This conclusion effectively disposes of Brammer’s point that he was entitled to recover interest. There are certain legal principles which control our decision.

We recognize that the filing of objections to an award of Commissioners by a condemnee does not constitute the institution of a suit by the condemnee. When Brammer filed his original objections to the award of the special Commissioners, the special condemnation proceedings which had theretofore been instituted by Denton County, Texas, became a cause pending in the County Court of Denton County. See Pearson v. State, 159 Tex. 66, 315 S.W.2d 935. The cause, thus filed, is to be tried and determined as in other civil causes in the county court.

Article 3266,

Section 6, Vernon’s Annotated Civil Statutes. We recognize that the filing of the original objections and exceptions by Brammer simply converted the special condemnation proceedings into a suit and invested the county court with jurisdiction of the subject matter of the case. See Fitzgerald v. City of Dallas, Tex.Civ.App., 34 S.W.2d 682, wr. ref.; State v. Nelson, 160 Tex. 515, 334 S.W.2d 788. filing of the original objections in this case vacated the award of the spe-speCommissioners. The condemnor, Den-Den-County, became the plaintiff and Bram-Bram-the condemnee, became the defendant.

Although the condemnee, Brammer, became the defendant, we construe the statute, Arti-Arti3266, supra, to mean that the condemnee, Brammer, had the burden of causing the issuance of citation and the obtaining of service of such citation upon the condemnor, Denton County. While the condemnor, Denton County, as plaintiff, had the burden of proving all the essentials necessary to show a right to condemnation, Fort Worth & D. N. Ry. Co. v.

Johnson, 125 Tex. 634, 84 S.W.2d 232, and had the burden of going forward to trial, it was under no legal obligation to do so unless and until it had been served with citation. -Of course, cita-citawas never served, and, as heretofore mentioned, Brammer waited seven years before filing his amended objections and exceptions to the award of the Commis-Commisand waited five years after with-withthe $800.00 deposit before obtain-obtaina setting and trial of his claim for com-comand damages. During all this time, the cause remained on the docket of the County Court of Denton County, Texas.

In the absence of citation, Denton County’s suit could not have been dismissed for want of prosecution, and Denton County was under no obligation to voluntarily answer without the service of citation.

While mere lapse of time between the filing of objections and the trial in this cause cannot operate as an abandonment by Brammer of his objections and exceptions to the award, the circumstances of this cause raised a conclusive presumption of abandonment by Brammer of his objections, and since such circumstances were wholly unexplained, there was a clear abuse of judicial discretion on the part of the trial court in overruling Denton County’s motion to dismiss.

Brammer abandoned his objections and exceptions long before the filing of his amended objections and exceptions to the award, and, therefore, was not entitled to a judicial determination of the matters presented in his objections and exceptions to the special Commissioners’ award. See Flanagan v. Smith, 21 Tex. 493; Ponton v. Bellows, 13 Tex. 254; Gillespie’s Adm’r v. Redmond, 13 Tex. 9; Bogle v. Landa et al., 127 Tex. 317, 94 S.W.2d 154; Ware v. Jones et al., Tex.Com.App., 242 S.W. 1022; Routh v. City of San Antonio, Tex.Civ.App., 302 S.W.2d 452, no writ hist.; Callahan v.

Staples, 139 Tex. 8, 161 S.W.2d 489, 491; Bevil v. Johnson, 157 Tex. 621, 307 S.W.2d 85. Since the duty devolves upon the condemnee to cause the issuance of citation, it seems logical to say that he must act with reasonable diligence, and, upon failure to so act, the rules announced in the above cases wherein plaintiffs failed to prosecute their suits with reasonable diligence should be applicable in cases where a condemnee fails to cause the service of citation, and the question of his diligence is in issue.

Brammer, so far as the citation was concerned, occupied the same status as a cross-plaintiff, and having failed to act with diligence and having failed to offer any explanation for such failure, he abandoned his objections and exceptions as a matter of law. The rule in Callahan v. Staples, supra, applies here.

In that case wherein the issue of abandonment was raised, this Court said: “Where the defendant in a suit is called to answer and has responded to the call, the duty devolves on the plaintiff to proceed in prosecuting the suit to a conclusion with reasonable diligence, and whenever a delay of an unreasonable duration occurs, such delay, if not sufficiently explained, will raise a conclusive presumption of abandonment of the plaintiff’s suit, * * * discontinuance results.” [Emphasis added.] This rule was quoted with approval in Bevil v. Johnson, supra (1957).

The judgments of the trial court and the Court of Civil Appeals are both reversed and judgment is here modified and rendered that G. H. Brammer, Jr. and Mrs. G. LX. Brammer, Jr. recover only the sum of $800.00, being the sum awarded to the Brammers by the special Commissioners, and the judgments of the trial court awarding Denton County, Texas, the fee simple title to the tract of land involved is in all things affirmed. CALVERT, C. J., and WALKER, GREENHILL and STEAKLEY, JJ., dissent. . “6.

If either party be dissatisfied with ' the decision, such party may within ten days after the same has been filed with the county judge file his objection thereto in writing, setting forth the grounds of his objection, and thereupon the adverse party shall be cited and the cause shall be tried and determined as in other civil causes in the county court.”