The court below did not err in overruling plaintiff's exceptions to the report of the commissioners. It seems that G.W. Raines, W.H. Wellborn, and Z.J. Harmonson were the commissioners first appointed by the county judge to assess the damage in the condemnation proceedings, and they were duly sworn as such; but it is also made to appear from the undisputed evidence in the record that Wellborn declined to serve, and the county judge appointed Gibbs in his place, who, with the other two commissioners first appointed, sat at the hearing and made the report. It also appears from the record that Gibbs was sworn prior to the meeting of the commissioners. The statute does not require either the appointment by the county judge of the commissioners nor their oath to be in writing, and the court therefore properly admitted parol evidence to show that Gibbs was sworn. It seems that his appointment was in writing. 2 Sayles' Civ. Stats., arts. 4183, 4184. The statute also fully provides for the appointment of a new commissioner whenever either of those first appointed is "from any cause unable or fails to act." 2 Sayles' Civ. Stats., art. 4198.
The action of the court in permitting the defendants to open and conclude the argument was correct. The admission of plaintiff's cause of action filed by them was almost in the exact language of an admission held sufficient in this character of proceeding in the case of Railway v. Waples, Painter Co., 3 Willson's Civil Cases, 409. But even in the absence of such admission, it seems that the weight of authority outside of this State is in favor of the right of the owner of the land to the opening and conclusion. Lewis on Em. Dom., 426.
The court erred in excluding the judgment of the District Court of Denton County in the case of S.A. Needham et al. v. E.S. Day. The bill of exceptions does not state the ground of the defendants' objection to this judgment, but the court explains its reason for excluding it to be the fact that the parties admitted that this judgment had been appealed from, and that the cause was then pending in the Supreme Court. Under our statute a judgment of a trial court is res adjudicata, notwithstanding the execution of a supersedeas bond and the pendency of the cause in the appellate court thereon. Thompson v. Griffin, 69 Tex. 139; Westmoreland v. Richardson, 2 Texas Civ. App. 175[2 Tex. Civ. App. 175].
Had this judgment been admitted in evidence, it would have shown that E.S. Day, who recovered all the damage, had no title to the Wallace survey, and was not entitled to the damage caused thereto, but that this right was in the other defendants to this proceeding. If we could say from the record as presented to us, that these other defendants had been given legal notice of these proceedings, it might be that they would be precluded by this judgment from denying Day's right to all this damage, they not having excepted to or appealed from the judgment; but the record does not disclose such notice; and inasmuch as this is a special *Page 356 proceeding, we are of opinion that before we should affirm Day's right to damages which it appears he is not entitled to receive, we should know from the record as presented to us that appellant can suffer no injury, because those who are entitled to what Day receives are estopped by the proceedings from again asserting their claim against it.
It is true the report of the commissioners as returned to the County Court states that notice had been given all the parties, and that none of them, except Day, appeared; but the judgment rendered in the County Court from which this appeal is taken only recites the appearance of plaintiff and the defendant Day, and says nothing as to service having been had upon the other defendants. Where a judgment is by default, the record should contain the citation to the party against whom the default is taken, and a recital of service in the judgment is not sufficient. Burditt v. Howth, 45 Tex. 466; Carlton v. Miller, 21 S.W. Rep., 697.
Were these defendants to institute a suit against appellant for the damages caused to this land, it is clear there is not sufficient disclosed by this record to preclude them from recovering. This being a special proceeding, it would be incumbent upon appellant, in defense of such suit, to show affirmatively that the plaintiffs therein had been served with legal notice in this proceeding; and the recital of such notice having been given in the report of the commissioners, or even in the judgment rendered by the County Court, would be no evidence against them of this having been done. Parker v. Railway,84 Tex. 333. The proceedings for the condemnation of the right of way across the Wallace and Hallmark surveys having been consolidated in the County Court, and the verdict not showing the amount of damage caused to each survey, the error in excluding the judgment above indicated will necessitate a reversal of the entire judgment.
The charge of the court in submitting the case to the jury, in calling their attention to the different elements of damage to be considered by them, does not meet with our entire approbation, yet we find nothing especially objectionable therein; and inasmuch as it is so nearly in the language of a charge which had been previously approved by our Court of Appeals, we would not reverse the cause on account thereof. We believe, however, it would be better if the court would instruct the jury that the measure of defendant's damage is the fair value of the land actually taken, and the lessened value of the remainder of the tract, and admit evidence as to the several items alluded to in the charge as bearing upon such lessened value, without specially directing the attention of the jury thereto.
The court did not err in refusing the charge requested by the plaintiff, to the effect that the jury must exclude from their estimate such injuries and inconveniences as would be suffered by the community in general, and not peculiar to the ownership of the land in controversy. This *Page 357 charge announced a correct proposition of law, but we find no evidence in the record showing any injury or inconvenience that will result to the community in general from the construction of this road. The only evidence introduced upon this branch of the case related to these particular tracts of land.
We see no objection to the court's permitting the witnesses Abney and Harmonson to state that a railroad ran through their land. These witnesses were called to give their opinion as to the extent a tract of land is injured by the construction and operation of a railway through it, and we think this evidence was properly admitted as bearing upon the weight that should be given to such opinion.
The court did not err in refusing to require the defendant Day to particularize in writing the damage claimed by him before going into the trial. The statute does not require written pleading in this character of proceeding, other than the application filed by the plaintiff as a basis for the condemnation. The law regulates what can and what can not be considered as items of damage, and there is no necessity for any greater particularity.
Had the judgment herein before alluded to not been offered in evidence, there would have been no error in the court's charging the jury to find all the damage in favor of defendant Day. The record shows that he had been in actual possession of the land for as much as ten consecutive years, and this at least would afford prima facie evidence that he was the owner thereof; and in the absence of the judgment referred to, there appears nothing in the record to rebut this prima facie case. Express Co. v. Dunn,81 Tex. 85.
None of the other assignments of error presented by appellant are believed to be well taken, and there is nothing in any of them which calls for a further discussion.
The judgment of the court below should be reversed and the cause remanded, and it is so ordered.
Reversed and remanded.