Opinion
Rehearing Denied Sept. 16, 1964.
Houston Thompson, Silsbee, for appellants.
Waggoner Carr, Atty. Gen., Austin, for appellee.
HIGHTOWER, Chief Justice.
Highway condemnation case. The commissioners award of $3,559.00 was withdrawn from the registry of the court by appellants prior to trial de novo.
On appeal by State to County Court at Law the lowest value placed upon the property taken, by State's only witness, was $1,570.00. The highest by appellants' only witness was $3,246.00. The jury found the value of the land taken to be only $1,298.40. The court accordingly entered judgment in favor of State for $2,260.60, such sum being the difference between the award withdrawn by appellants and the jury finding. The question of damages to the remainder is not before us.
Appellants challenge the sufficiency of the evidence to support the verdict, say there is no evidence to support the same, and urge that the same is against the overwhelming weight and preponderance of the evidence, all because the finding of the jury as to the value of the land taken was less than the value testified to by any witness. These contentions are in substance a complaint as to the excessiveness of the judgment and they are not without merit. Houston Belt & Terminal Ry. Co. v. Lynch,
Page 322
221 S.W. 959 (Tex.Com.App.1920). However, they do not require reversal and remand as urged by appellants.
We conclude the jury could have found the value of the land taken to be $1,570.00, the lowest value testified to, and therefore the judgment was excessive in the amount of $271.60. See reasoning of court in Houston Belt & Terminal Ry. Co. v. Lynch, 185 S.W. 362, at p. 365 (C.A.).
In the circumstances, it is our duty to order a remittitur by State in the sum of $271.60. Rule 440, Texas Rules of Civil Procedure; Carter v. Texarkana Bus Company, 156 Tex. 285, 295 S.W.2d 653 (1961); Houston Belt & Terminal Ry. Co. v. Lynch, 221 S.W. 959 (Tex.Com.App. 1920).
Upon filing of remittitur herein within fifteen (15) days by State in the said sum of $271.60, the judgment of the trial court will be affirmed with costs of appeal in favor of appellant. Upon failure to file remittitur, judgment will be reversed and remanded.
Affirmed on condition of remittitur.