On Petition for Rehearing
There has been seasonably filed herein a courteous and dignified petition to rehear. This petition consists of some eleven pages and is filed for the purpose of calling our “attention to material and substantial errors of law and fact apparent on the face of the opinion”.
The argument made by counsel primarily is that the jurisdiction given the County Court in condemnation under Sections 49-801 through 49-804, T.C.A., are not concurrent with condemnation statutes applicable to the Circuit Court because under these special County Court condemnation statutes there is no provision for a jury trial, etc. The argument is that if our opinion is correct that then the mayor of the town, who is likewise given jurisdiction under these Acts would have concurrent jurisdiction with the Circuit Court. Counsel, too, argues that if our conclusion, in our original opinion, is correct that the Circuit Court would have concurrent jurisdiction *330in matters of probating wills, etc. A related argument (citing authorities) was made to this Court one hundred years ago and answered by the Court adversely to the petition herein. See Towson v. Debow, 37 Tenn. 193, 195. We think this argument is erroneous and wholly overlooks the principal involved. We were probably responsible for this in not making it a little more definite in our original opinion.
The jurisdiction of course of the two courts is only concurrent insofar as the County Court has jurisdiction wherein this jurisdiction corresponds with a similar jurisdiction when the action is originally brought in the Circuit Court. Under these Sections, 49-801 et seq., the County Court’s jurisdiction ends at a point when the property owner and the condemner, the School Board, are not able to get together after a jury of view has reported. These condemnation sections then end and when they are not able to get together as provided in these sections why then it is appealed to the Circuit Court and there tried de novo by the jury. This does not keep the actions as originally brought from being concurrent. When the actions or proceedings with respect to a subject matter can be brought in one of several courts they are concurrent as far as the jurisdiction of the proceeding goes.
These sections of the Code of course, as said in the original opinion, are part of the Education Act and are not very skillfully drawn but drawn merely for the purpose of expediting the condemnation of this land for these school purposes.
Next it is very courteously and seriously complained that we found certain facts, that is, that the reason the *331School Board declined to take this property was because of the percolation tests. This fact statement is not necessary to the decision at all but is a statement of fact that was more or less conceded in argument both orally and in brief. This state of facts is merely pointed ont to show that there was no attempt to play fast and loose with the conrts in taking this nonsnit. In other words there was not any position of filing a condemnation and then becanse the money was too much then backing ont and taking a nonsnit, or anything of that kind. It was conceded that the parties were not in any disagreement abont the amount bnt if they conld not nse the property clearly they did not want to take it.
The theory of fact of the way these sections in regard to condemnation, that is 49-801 through 49-804, T.C.A., are drawn is to show that unless after the jury of view is appointed and the figure was fixed, unless there was a meeting of minds of the parties, that they agreed, then that the action was not ended. This within itself would preclude the action of the County Court from becoming final so as to bar the party from taking a nonsuit.
We have very carefully read and considered this petition and after doing so we appreciate counsel’s calling our attention to these things, but we are more convinced than ever of the correctness of the result of our original opinion, that is, that under the facts and circumstances here the County Board of Education was not barred from taking a nonsuit. We have said nothing in this case that is in conflict with the holding in Justices of Williamson County v. Jefferson, 41 Tenn. 419, 420.
The result is that the petition to rehear must be overruled.