Castilleja v. Camero, 207

• Decision Date: 31 March 1966
• Docket Number: No. 207,207
• Citation: 402 S.W.2d 272
• Parties: Alberto CASTILLEJA, Appellant, v. Severa CAMERO, Appellee. . Corpus Christi
• Court: Texas Court of Appeals

Page 272

402 S.W.2d 272

Alberto CASTILLEJA, Appellant, v. Severa CAMERO, Appellee.

No. 207.

Court of Civil Appeals of Texas.

Corpus Christi.

March 31, 1966.

W. G. Perkin, F. B. Godinez, Jr., Pharr, for appellant.

E. G. Henrichson, of Henrichson & Bates, Edinburg, for appellee.

GREEN, Chief Justice.

In cause No. B--22,984 in the 93rd District Court of Hidalgo County, Texas, between these same two parties, appellee on March 4, 1965, recovered judgment against appellant for $17,000.00. The trial court in his judgment in that case expressly found that appellant had on deposit in the Banco Longoria, of Reynosa, State of Tamaulipas, Republic of Mexico, a fund of money in which appellee's interest was $17,000.00, and that appellee's interest was a specific portion of said deposit in said bank. The court found appellant was threatening to dissipate, waste, or remove and secrete the same, and permanently enjoined and restrained him from assigning, removing, dissipating, secreting, or hiding said sum of money, except that he was allowed to assign the same to the district clerk of Hidalgo County, Texas, to serve as supersedeas bond in the event of appeal. Appellant did not assign any portion of the fund to the district clerk under this provision of the decree. The judgment was this day affirmed by this Court in Castilleja v. Camero, our No. 173, 402 S.W .2d 265.

On September 14, 1965, while said cause was pending on appeal to this Court as our No. 173, appellee filed the present case No. B--23,409 in the 93rd District Court of Hidalgo County, Texas, alleging the facts concerning the entry of the decree in No. B--22,984, and the appeal from said judgment without supersedeas bond, and further alleging that execution had issued and been returned nulla bona, the insolvency of appellant, the deposit by appellant of the money in Banco Longoria in Reynosa, Tamaulipas, Mexico, out of the jurisdiction of Texas courts, and appellee's specific interest in the funds represented by said deposit, that appellant threatened to remove himself from the jurisdiction of the court so as not to be available for punishment for violating the injunction against him, and other facts. Appellee prayed that after due hearing, the court issue its writ of mandamus requiring appellant to transfer the sum of $17,000.00 belonging to appellee by virtue of the judgment in cause No. B--22,984, to the district clerk of Hidalgo County, Texas, to be held by him conditioned that appellant prosecute his appeal in said cause to effect, and that said sum be paid out of the registry of the court in accordance with the final terms of the judgment in said cause No. B--22,984, serving while said case was on appeal in the nature of a supersedeas bond. Said petition was duly sworn to.

After a non-jury trial, at which both parties duly appeared in person and by counsel of record, the trial court, finding that appellee should be awarded the writ of mandamus, signed and entered its order reading in part as follows:

'It is accordingly ORDERED, ADJUDGED and DECREED that a peremptory writ of mandamus issue directing and commanding the Respondent, Alberto Castilleja, to within ten (10) days from this day pay into the registry of the 93rd District Court, the sum of Seventeen Thousand & No/100 ($17,000.00) Dollars, which are funds adjudged to be property of the Relator by virtue of final judgment in Cause No. B--22,984 and to be held by the said Clerk of this Court, K. C. Boysen, conditioned that the Respondent prosecute his appeal in said cause to effect, and that said sum be paid out of the registry of this court in accordance with the final mandate on said judgment, and that the same serve as a supersedeas bond therein, and it is further ORDERED, ADJUDGED and DECREED, that Relator recover her costs in this behalf expended and that she have her execution for the same.

'WHEREUPON, in open court, the Respondent gave notice of appeal to the Court of Civil Appeals, 13th Supreme Judicial District, State of Texas, sitting at Corpus Christi, Texas, and requested this Court to fix the amount of supersedeas bond required herein, and the Court, after consideration, does hereby set the amount of the supersedeas bond required herein at the sum of Eight Thousand Five Hundred & No/100 ($8,500.00) Dollars.'

This appeal is from said order granting the writ of mandamus.

Appellant bases his appeal on three points of error, as follows:

'POINT ONE:

The Honorable Trial Court erred in allowing the Appellee to enter in evidence the judgment in Cause Number B--22984, styled SEVERA CAMERO vs. ALBERTO CASTILLEJA, because said judgment had been appealed and was not a final judgment at the time same was sought to be introduced into evidence.

'POINT TWO:

The Honorable Trial Court erred in granting the Writ of Mandamus in that the Appellant was under a permanent injunction in Cause Number B--22984, and said Writ of Mandamus as issued was in effect an attempt to compel the Appellant to make a supersedeas bond in a separate and distinctive cause, namely Cause Number B--22984.

'POINT THREE:

The Honorable Trial Court erred in granting the Writ of Mandamus for the reason that the Honorable Trial Court had no authority to grant such a Writ in support of a money judgment.'

In support of his first point, appellant relies on the opinion in Texas Trunk R. Co. et al. v. Jackson et al., 85 Tex. 605, 22 S.W. 1030. There the court held that while an appeal or application for a writ of error is pending in an appellate court, whether prosecuted under a cost or supersedeas bond, the judgment is deprived of that finality of character necessary to make it admissible in evidence in support of the right or defense declared by it, or as the basis of a plea in bar. In the hearing of the present case, appellee did not offer the judgment in the first case in final support of the rights declared by it, or as the basis of a plea in bar of any contention of appellant. She did not make any claim that, so long as the case was on appeal, the judgment was final. Such judgment was proper evidence of the existence of a claim of hers against specific property, to-wit, $17,000.00 of the money on deposit in appellant's name in the bank in Mexico, in the event the judgment was affirmed, and of the necessity that to protect such claim, the relief sought would need to be granted subject to the action of the appellate courts. We feel that the language of the Texas Supreme Court in Ex parte Preston, 162 Tex. 379, 347 S.W.2d 938, 943, is decisive of this matter, when, through Justice Culver, it said:

'Additionally Preston complains of the enforcement of this order for the reason that the adjudication of the divorce and division of the community property has not become final because he says that case is on appeal. We think that fact is not significant. It is to be noed that the court's order directed the payment of the money not to Mrs. Preston but to the Clerk. She would hardly be entitled to its possession until the judgment of the divorce becomes final. The fact that the case is...