I dissent. The County Court at Law of Harris County entered an order in which it found that it had jurisdiction of the appeal in the condemnation proceeding. Under such finding, until the County Court at law passes upon the condemnation proceeding, there is no jurisdiction in any other court. At the hearing in the District Court, the only thing that was considered was the plea in abatement. The District Court sustained the plea in abatement and dismissed the case. This court has no jurisdiction of the appeal save and except to decide whether or not the District Court was correct. 4 Tex.Jur.2d 242, Sec. 746, and cases cited thereunder.
Condemnation law is “cold-blooded”. It allows the taking of one’s property for public use. There are certain proceedings through which the public must go. The only recourse by the condemnee is to exercise his right of appeal. In this case, the special commissioners filed their award September 8, 1960. The condemnees had ten days after that date to file notice of their appeal. The tenth day fell on Sunday. Under no theory of reasoning could they have filed their appeal on the tenth day. The statute does not limit them to nine days. Rule 4, V.A.T.R.C.P., provides that in such cases the appeal may be filed on Monday. This, they did. This case is directly in point with City of Amarillo *363v. Adams, Tex.Civ.App., 342 S.W.2d 371, err. dism’d. In that case, the condemnees filed their notice of appeal on the eleventh day, the tenth day falling on Sunday. The Court of Civil Appeals held that the notice of appeal was timely filed. With their holding, I agree. The opinion of this court is directly in conflict with the opinion of City of Amarillo v. Adams, supra.
Since the District Court of Harris County did not pass upon the question of whether or not a writ of mandamus should be granted, I think the judgment is entirely correct, and should be affirmed.