I concur with the views expressed by Justice YOUNG.
Lamar Street was closed about two years after appellant took possession of a part of appellee’s property by condemnation. Therefore the closing of the street was not properly an element of damage in the condemnation proceeding. Yet on cross-examination appellee’s witnesses testified directly and clearly that they did take the street’s closing into consideration in arriving at the amount of damage.
It is true that the closing of the street had been referred to earlier in the trial. But as I read the record this earlier reference was merely by way of picturing the physical setting and historical background of the neighborhood at the time of trial. It was not until counsel for the City cross-examined appellee’s witnesses that it was disclosed that the witnesses had included the street’s closing as an element in their computation of the damages sustained by appellee. Appellant through counsel then promptly objected and continued to object throughout the rest of the trial, and moved the court to instruct the jury not to consider such evidence. In my opinion the record shows reversible error.
In our original opinion we continued in effect a stay order pending this appeal to enjoin the trial court from further proceeding with a hearing in which appellee sought to obtain a mandamus ordering the City to pay immediately pending this appeal the difference in amount between the Commissioners’ award and the amount of the County Court judgment. Appellee had already withdrawn the amount of the Commissioners’ award. I think our decision to continue the stay order in effect was proper.
The language of Art. 3268, Vernon’s Ann.Civ.St. might lead one to believe otherwise, but the interpretation put upon the statute by our Supreme Court seems to me to support our decision to continue the stay order in effect. Houston Belt & Terminal Ry. Co. v. Hornberger, 106 Tex. 104, 157 S.W. 744. In the above cited case the trial court after first awarding the defendant damages in a condemnation proceeding, changed its mind and dismissed the condem-nor’s proceeding on the ground that the *439condemnation statute was unconstitutional. The condemnor appealed, but the trial court, relying on what is now Article 3268, V.A.C.S., insisted on enforcing its judgment pending appeal by issuing a writ of possession. The Supreme Court in response to certified questions answered that the statute did not deny the condemnor the right to suspend the judgment of the County Court pending appeal, and the Court of Civil Appeals had jurisdiction to enjoin the enforcement of the County Court judgment notwithstanding the statute.
I must further differ with my respected colleague Justice Cramer by saying that in my opinion the cases cited by him, Housing Authority of City of Dallas v. Dixon, Tex.Civ.App., 250 S.W.2d 636, and Thomas v. Housing Authority of City of Dallas, Tex., 264 S.W.2d 93, are not in point. It is true that the language in the Dixon case would seem to support appellee’s contention but a careful reading of the whole opinion in the case, and especially a reading of the entire record on appeal, will disclose that the question now before us was not raised by points on appeal or otherwise in the Dixon case, and was not before the court at all.
Thomas v. Housing Authority of City of Dallas, Tex., 264 S.W.2d 93, had to do only with the right of a landowner to withdraw the amount of the Commissioners’ award and continue to litigate the case in County Court and on appeal. Here is what the Supreme Court said: “This case presents hut one question and that is: Can the landowner, who has filed objections to the award of the Commissioners in a condemnation proceeding, and who has been properly dispossessed by condemnor withdraw the amount of the award, and further prosecute his suit? We hold that he can and that he has not waived his right to prosecute his appeal by drawing down the amount awarded by the Commissioners.” The question now before us was not before the Supreme Court and was not passed on in the Thomas case.
On rehearing the judgment of affirmance heretofore entered will be set aside and the judgment of the trial court will be reversed and remanded for another trial. Our stay order .will remain in effect pending further proceedings on appeal.