City of Sherman v. Gnadt ( 1960 )

On Rehearing

DIXON, Chief Justice.

As indicated in our main opinion the record in this case contains testimony in support of these valuations: part taken, $40,000; remainder before taking, $40,000; and remainder after taking, $2,250. Based on such testimony and figures the jury could have made findings which would have supported a judgment in excess of the $62,-500 awarded in this case.

But in one particular we must hold that the finding of the jury was excessive because it went beyond the maximum value for which there is support in the evidence. The jury in answering special issue No. 2 found that the value of appellees’ land, exclusive of the strip of land condemned, immediately before the strip was taken, was $40,500. The highest valuation we find in the testimony as to the value of appellees’ land, exclusive of the strip of land condemned, immediately before the strip was taken is $40,000, which was the valuation testified to by the witness Joe P. Treece. The jury’s finding in this particular was $500 in excess of the highest valuation which finds support in the evidence.

In our opinion the judgment of the trial court is excessive in the amount of $500 as above indicated, and should be reversed for that reason only. However if appellee or his attorneys will file a remittitur of $500 within ten days from this date we shall reform the court’s judgment accordingly and affirm the judgment as reformed. Rule 440, T.R.C.P. If such remittitur is not filed the judgment will be reversed and remanded for another trial.

CRAMER, J., not sitting.