Beverly v. Roberts

• Decision Date: 05 November 1919
• Docket Number: (No. 1560.)
• Citation: 215 S.W. 975
• Parties: BEVERLY v. ROBERTS et al.
• Court: Texas Court of Appeals

215 S.W. 975

BEVERLY v. ROBERTS et al.

(No. 1560.)

Court of Civil Appeals of Texas. Amarillo.

November 5, 1919.

Error from District Court, Foard County; J. A. Nabers, Judge.

Suit by T. M. Beverly against N. J. Roberts and others, wherein, after judgment for plaintiff, he filled an information in contempt with prayer for damages. To review judgment that plaintiff take nothing by the motion and that defendants be discharged, plaintiff brings error. Judgment reversed, and order dismissing the motion on information entered.

Wallace Hughston, of McKinney, for plaintiff in error.

G. W. Walthall, of Crowell, for defendants in error.

BOYCE, J.

The plaintiff in error sued defendant in error N. J. Roberts and recovered judgment for the recovery of a parcel of land in Foard county. The judgment in the case provided that the defendant should have 60 days from the date of the judgment to remove a certain fence from said land, and at the expiration of said 60 days that the plaintiff have his writ of possession. No appeal was taken by either party from said judgment. Thereafter the plaintiff in error, plaintiff in the court below, filed in said cause an instrument termed "information in contempt with prayer for damages," in which he alleged that the defendant did not within the 60 days after date of the rendition of said judgment remove the fence from the land, for which the plaintiff had recovered judgment, and that after the expiration of said 60 days the plaintiff secured the issuance of a writ of possession and placed the same in the hands of the sheriff, L. D. Campbell, for execution; that the plaintiff was thereupon entitled to possession of said premises with the fence as it stood thereon at the expiration of said 60 days, and at the time of the issuance of the writ of possession; that after the issuance of the writ of possession the defendant N. J. Roberts, with intent to evade the effect of the judgment and in violation of plaintiff's rights thereunder, and while said writ was in the hands of the sheriff and with the connivance and consent of the said sheriff, removed the said fence from said land; that said fence was of the value of $80, and plaintiff was damaged in said sum by such acts; that such acts were in contempt of the court and in violation of plaintiff's rights. Wherefore relator prayed that the said N. J. Roberts and L. D. Campbell be held in contempt of court and that he have judgment against the said parties for said sum of $80. The court on hearing of this motion entered judgment that the plaintiff take nothing by his motion and that the defendants be discharged, and the appeal is from this judgment of the court.

The defendants in error have moved that the writ of error be dismissed for want of jurisdiction in this court. This motion was passed to be considered with the case on the final submission and will be disposed of by the general discussion which follows.

The purpose of the contempt proceeding was twofold: First, compensation to the plaintiff by assessment and award of the damages he had sustained; second, punishment of the defendant by fine and imprisonment in addition to forcing payment of the damages inflicted on plaintiff. In the accomplishment of the first purpose, the proceeding would be remedial and therefore of a civil nature. In the second it would be punitory and would be classed as criminal. Ex parte Wolters, 64 Tex. Cr. R. 238, 144 S. W. 567, Ann. Cas. 1916B, 1071; In re Merchants' Stock & Grain Co., 223 U. S. 639, 32 Sup. Ct. 339, 56 L. Ed. 584; Gompers v. Buck's Stove & Range Co., 221 U. S. 418, 31 Sup. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874; Hammond Lumber Co. v. Sailors' Union (C. C.) 167 Fed. 809. Some authorities have held, and others assumed, that, where there has been a violation of an order or judgment of the...