Federal Surety Co. v. Cook, (No. 1335-5451.)

• Decision Date: 19 February 1930
• Docket Number: (No. 1335-5451.)
• Citation: 24 S.W.2d 394
• Parties: FEDERAL SURETY CO. v. COOK, District Judge, et al.
• Court: Texas Supreme Court

24 S.W.2d 394

FEDERAL SURETY CO. v. COOK, District Judge, et al.

(No. 1335-5451.)

Commission of Appeals of Texas, Section A.

February 19, 1930.

Original proceeding by the Federal Surety Company, for writ of mandamus prayed to be directed to Hon. W. W. Cook, Judge of the District Court for the Seventy-Eighth District, in which T. A. Bond and others were made co-respondents. Writ granted.

Carrigan, Britain & King, of Wichita Falls, and Burgess, Burgess, Chrestman & Brundidge, of Dallas, for relator.

Grindstaff, Zellers & Hutcheson, of Weatherford, for respondents.

HARVEY, P. J.

This is an original proceeding in the Supreme Court for mandamus instituted by the relator, Federal Surety Company, against Hon. W. W. Cook, Judge of the district court for the Seventy-Eighth district. T. A. Bond and others are made co-respondents in the proceeding.

The facts are undisputed. They are substantially as follows:

In July, 1928, there was duly pending in the Seventy-Eighth district court a certain suit, styled Federal Surety Company v. T. A. Bond et al. Said suit had been seasonably and regularly brought by the relator herein, to set aside a final decision of the Industrial Accident Board, awarding compensation to T. A. Bond, as prescribed in the Workmen's Compensation Law, for the alleged total and permanent incapacity for work, which resulted to Bond from injuries accidentally sustained by him, in the course of his employment on October 4, 1927. Among the facts duly put in issue in said suit, by the pleadings of the parties, were the fact of Bond's total incapacity for work, as a result of his said injuries; the permanency of such total incapacity; and the amount of compensation due. On July 24, 1928, said suit was regularly tried in said court, before a jury. In answer to special issues submitted to them, the jury expressly found, among other things, that Bond had, on October 4, 1927, accidentally sustained personal injuries, in the course of his employment, as alleged by him; that said injuries totally incapacitated him for work, for the period of 65 weeks from the date of the accident; that such total incapacity was not permanent. The court thereupon, on July 24, 1928, duly rendered and entered judgment in favor of Bond, against the relator herein, for 65 weeks' compensation, at the rate of $15.23 per week, from the date of the accident. The form of said judgment is in all respects that of a final judgment, disposing of all parties and issues, except that portion of the judgment which reads as follows: "It is further ordered, adjudged and decreed by the court that the court will have continuing jurisdiction of this case, and that upon the application of the defendant herein, showing a change of condition, mistake or fraud, the court at any time within the compensation period may review this judgment, ending, diminishing or increasing compensation awarded herein, within the maximum and minimum provided by the Workmen's Compensation Act of the State of Texas, or may change or revoke this order and judgment; it is further ordered, adjudged and decreed by this court that this judgment grants to both plaintiff and defendant the privileges and rights conferred by Article 8306, Section 12d, of Vernon's Annotated Civil Statutes, 1925."

No appeal was prosecuted from this judgment, and said judgment has been fully satisfied by payment in accordance with its requirements. On February 7, 1929, after the term of court at which said judgment was rendered had expired, and after said judgment had been fully paid by the relator, the said T. A. Bond filed in said suit a document which he denominates his "First Petition for Review," wherein the following matters are alleged in circumstantial detail: The said accident of October 4, 1927; the injuries sustained by Bond in such accident; the resulting total incapacity for work; the permanency of such incapacity; the trial of said suit, and the rendition and entry of said judgment of July 24, 1928, therein. It is further alleged in the "Petition...