Berman v. Kirk, 5001

• Decision Date: 09 November 1976
• Docket Number: No. 5001,5001
• Citation: 543 S.W.2d 27
• Parties: Sydell BERMAN, Individually, et al., Relators, v. The Honorable Weldon KIRK et al., Respondents.
• Court: Texas Court of Appeals

Page 27

543 S.W.2d 27

Sydell BERMAN, Individually, et al., Relators, v. The Honorable Weldon KIRK et al., Respondents.

No. 5001.

Court of Civil Appeals of Texas Eastland.

Nov. 9, 1976.

Johnny M. Moore, Mays, Moore, Dickson & Roberts, Inc., Sweetwater, Harold B. Berman, Berman, Fichtner & Mitchell, Dallas, for relators.

Stanley P. Wilson, McMahon, Smart, Wilson, Surovik & Suttle, Abilene, for respondents.

McCLOUD, Chief Justice.

Relators, Sydell Berman, Individually, and Sydell Berman and First National Bank in Dallas, as Independent Executors for the Estate of Max Berman, Deceased, and Perry Brothers, Inc., seek in this original proceeding writs of mandamus and prohibition to compel the Honorable Weldon Kirk, Judge of the 32nd Judicial District Court of Nolan County, Respondent, to set aside an order entered by Judge Kirk overruling Relators' motion to abate an action pending in Judge Kirk's court.

Relators contend that Irving A. Loeb, who was an indispensable party to the pending action, died during trial on October 28, 1976. On November 3, 1976, Relators moved for abatement of the pending cause until the heirs or legal representative of Irving A. Loeb were properly joined. Loeb was both a defendant and cross-plaintiff. The court overruled Realtors' motion to abate and ordered separate trials under Rule 174, T.R.C.P.

Relators urge that upon the death of Irving A. Loeb, his estate became an indispensable party as defined in Rule 39, T.R.C.P., and that to continue the trial in the absence of such indispensable party constitutes fundamental error. Respondent contends that this court is without jurisdiction to issue the writs requested. We agree.

Our jurisdiction to issue writs of mandamus is limited by Articles 1823 and 1824, Tex.Rev.Civ.Stat.Ann. ¹ Under these statutes, Courts of Civil Appeals may only grant writs of mandamus to protect or enforce the jurisdiction of the Court, or to compel a judge of a District or County Court to proceed to trial and judgment in a cause . Crane v. Tunks, 160 Tex. 182, 328 S.W.2d 434 (1959); Cogdell v. Williams, 461 S.W.2d 187 (Tex.Civ.App.--Eastland 1970); Chapa v. Betts, 534 S.W.2d 446 (Tex.Civ.App.--Austin 1976); Longbine v. Johnson, 347 S.W.2d 772 (Tex.Civ.App.--Amarillo 1961); Julian v. Hoffman, 520 S.W.2d 935 (Tex.Civ.App.--Dallas 1975); Guillory v. Davis,527 S.W.2d 465 (Tex.Civ.App.--Beaumont 1975); Parr v. Carrillo, 526 S.W.2d 250 (Tex.Civ.App.--San Antonio 1975).

Relators rely upon South End Development Co. v. Holland, 248 S.W.2d 1013 (Tex.Civ.App.--Galveston 1952) which held that the Court of Civil Appeals had jurisdiction to grant writs of mandamus and prohibition to prevent trial of a 'cause until, and unless, all necessary parties thereto' were made parties to the suit . The holding is inconsistent with the rule announced in Crane v. Tunks, supra. Also, Rushing v. Bush, 260 S.W.2d 900 (Tex.Civ.App.--Dallas 1953, writ dism'd.) relied upon by Realtors is not controlling. There the trial court erroneously refused to proceed...