The city of Fort Worth filed with the judge of the county court a petition against J. M. Leonard for the condemnation of lot 3 and the east 40 feet of lot 4 in the city of Fort Worth, to be used as a public park of the city. Upon the filing of that application, the county judge appointed three commissioners to assess the damages resulting to Leonard, the owner, from the taking of said property for that purpose. After being duly sworn and after due notice to all the parties, the commissioners heard the evidence and returned into court their report showing an assessment of damages in the sum of $31,500. Exceptions and objections were duly taken to such finding by J. M. Leonard and filed with the county judge within ten days after the report of the commissioners.
The issues were then tried and determined by the county court before a jury. Only one issue was submitted to the jury, which, together with the answer thereto, was as follows: "What do you find from the evidence is the reasonable cash market value at the time of the property in controversy? Answer: $81,000.00."
That verdict was rendered June 13, 1929. On June 15, 1929, the plaintiff city of Fort Worth filed its motion to set aside the verdict on numerous grounds alleged in the motion. On June 25, 1929, the city filed another motion for the court to discontinue and dismiss the case from its docket and to permit plaintiff to abandon further proceedings in the cause. Several grounds were urged in that motion, one of which was that the damages allowed by the jury were excessive and far above the amount the city council contemplated paying when it decided to institute the condemnation proceedings, and that the city was without funds available for use in acquiring the property and paying the damages so assessed by the jury. On June 28, 1929, the defendant Leonard filed a motion to have judgment entered in accordance with the verdict of the jury. On the same day the court sustained the motion of the plaintiff to dismiss the suit and discontinue the condemnation proceedings theretofore instituted by it.
From that judgment of dismissal, Leonard duly prosecuted his appeal to this court, and the record of the proceedings was duly filed in this court on July 11, 1929. After his appeal had been thus perfected and filed in this court, Leonard filed his application for Writ Of mandamus to be issued from this court compelling and requiring the judge of the county court to determine the merits of plaintiff's motion to set aside the verdict, and, in the event the same should be overruled, to enter a judgment for condemnation of the property in controversy in plaintiff's favor and in favor of defendant Leonard for the sum of $81,000 as damages for the taking of it, in accordance with the verdict of the jury.
The appeal referred to above is now pending and undetermined, and whether or not the defendant Leonard is entitled to the relief prayed for in his application for mandamus is the principal issue involved in the appeal. Therefore, to grant the writ of mandamus would have the effect of disposing of the entire controversy presented by the appeal before the case on appeal is reached in its regular order.
It is a familiar rule that, pending an appeal, this court has jurisdiction to grant ancillary writs, such as injunctions, to preserve the status of the property or matter in controversy until the appeal is decided, but it is quite clear that the material and controlling issue involved in this appeal cannot be summarily determined by a proceeding such as is now before this court. Accordingly, the application for the writ of mandamus now presented to this court is denied and refused, without prejudice, however, to the rights of the applicant to have the same questions determined when the appeal which he has prosecuted is heard.