Allen v. Woodward

• Decision Date: 05 April 1922
• Docket Number: (No. 3598.)
• Citation: 239 S.W. 602
• Parties: ALLEN v. WOODWARD, District Judge.
• Court: Texas Supreme Court

Page 602

239 S.W. 602

ALLEN v. WOODWARD, District Judge.

(No. 3598.)

Supreme Court of Texas.

April 5, 1922.

Original application of Irene S. Allen for mandamus against J. O. Woodward, District Judge. Writ issued.

Critz & Woodward, of Coleman, for relator.

J. O. Woodward, District Judge, Baker & Weatherred, of Coleman, and McDaniels & Bounds, of McAllen, for respondent.

GREENWOOD, J.

This is an original action for a writ of mandamus to compel Hon. J. O. Woodward, judge of the Thirty-Fifth judicial district of Texas, to hear and determine a petition whereby relator seeks to have G. L. Allen adjudged in contempt of the district court of Coleman county, and to have him imprisoned until purged of the contempt. There is no controversy about the facts, which will be briefly stated.

On April 30, 1921, relator recovered a judgment against G. L. Allen in the district court of Coleman county, for the title to and possession of a diamond ring of about 1½ carats. The judgment ordered the issuance of an "execution and mandatory writ of injunction," and ordered and commanded G. L. Allen to deliver the ring to any officer demanding the ring under such writ. The judgment was rendered after Allen had given notice of appeal from an order overruling his plea of privilege to be sued in Hidalgo county, which appeal he later perfected on a bond for costs. The appeal is still pending in the Austin Court of Civil Appeals.

After the adjournment of the term of the district court at which the judgment was rendered, a writ of execution was issued commanding the seizure of the ring and its delivery to relator, and a writ of injunction was also issued. A copy of the injunction writ was delivered to G. L. Allen. The sheriff's return showed that he executed the writ of execution by calling on G. L. Allen for the diamond ring, who stated that he neither had the ring nor knew where it was, and that he further executed the writ by searching Allen's person, room, and effects without finding the ring.

Thereupon the relator presented to the respondent, as judge of the district court of Coleman county, her petition, averring the foregoing facts, and also averring that G. L. Allen either had the power to comply with the court's judgment or that he had willfully concealed or disposed of the ring for the purpose of defeating the enforcement of the judgment, and praying that Allen be cited to show cause why he should not be held in contempt of the court, and that, upon a hearing, he be adjudged in contempt, and that the court administer such punishment, by fine and imprisonment, as would compel compliance with the court's judgment.

On June 17, 1921, after considering relator's petition, the respondent denied same because of his conclusion that he was without authority to grant an order citing G. L. Allen for contempt because of the sheriff's return on the execution, and that, regardless of the sheriff's return, he had no authority to enforce the judgment by means of proceedings for contempt.

By his answer in this court, the respondent avers that he was of the opinion that the appeal to the Court of Civil Appeals deprived the district court of jurisdiction, and that for this reason he overruled the application for the contempt...