Cattlemens Trust Co. of Ft. Worth v. Willis

• Decision Date: 09 October 1915
• Docket Number: (No. 8340.)
• Citation: 179 S.W. 1115
• Parties: CATTLEMENS TRUST CO. OF FT. WORTH v. WILLIS, District Judge, et al.
• Court: Texas Court of Appeals

179 S.W. 1115

CATTLEMENS TRUST CO. OF FT. WORTH v. WILLIS, District Judge, et al.

(No. 8340.)

Court of Civil Appeals of Texas. Ft. Worth.

October 9, 1915.

Rehearing Denied November 13, 1915.

Petition by the Cattlemens Trust Company of Ft. Worth for a writ of prohibition against Frank Willis, District Judge, and another. Writ issued.

A. H. Kirby, of Ft. Worth, for petitioner. J. W. Payne, of Ochiltree, Newton P. Willis, of Canadian, and George W. Steere, of Ft. Worth, for respondents.

CONNER, C. J.

This is an application on the part of the Cattlemens Trust Company of Ft. Worth against J. M. Blassingame, of Ochiltree county, and against Hon. Frank Willis, judge of the Thirty-First judicial district, for a writ prohibiting the said Blassingame from further prosecuting and the said judge from a further hearing of a writ of injunction issued by order of said judge on September 1, 1915, restraining an execution sale of certain lands belonging to Blassingame situated in Ochiltree county. The application for the writ is based upon the following undisputed facts:

On June 15, 1914, the Cattlemens Trust Company recovered a judgment by default in the district court of Tarrant county against the defendant J. M. Blassingame for the sum of $869.40, being the principal, interest, and attorney's fees specified in a promissory note declared upon in that case. Blassingame, though duly served, made default, but later, on September 12, 1914, sued out a writ of error from said judgment to this court, at the time filing a supersedeas bond, with A. W. Thurman, S. C. Brillhart, Sharman Jines, and A. M. Jines as sureties. Blassingame, however, failed to file the record in this court, or otherwise prosecute his writ of error with effect, as required by the terms of his supersedeas bond, whereupon the Cattlemens Trust Company, pursuant to the terms of our statute on the subject, filed its motion in this court praying for an affirmance of the judgment and a recovery of 10 per cent. damages for delay. In answer to the motion to affirm, Blassingame filed in this court a pleading to the effect that shortly prior to the institution of the suit in Tarrant county by the Cattlemens Trust Company he (Blassingame) had instituted a suit in Ochiltree county, where he resided, to cancel for fraud the note which was the foundation of the suit and judgment in Tarrant county; that the case in Ochiltree county had been tried upon the issues made by the pleadings in that case, and that he (Blassingame) had recovered a judgment canceling the note; that the Cattlemens Trust Company had duly prosecuted an appeal from the Ochiltree county judgment to the Court of Civil Appeals for the Seventh Supreme Judicial District, where it was alleged the appeal was then pending. The prayer was that the motion to affirm be dismissed, or in the alternative that this court postpone judgment on the motion until after disposition of the appeal from Ochiltree county by the Court of Civil Appeals for the Seventh Supreme Judicial District. After due consideration, we held, in effect, as will be seen from our published opinion (Blassingame v. Cattlemen's Trust Co., 174 S. W. 900), that the facts set up by Blassingame in answer to the motion constituted a good plea in abatement only, and not a good plea in bar of the action in Tarrant county, and that, Blassingame having failed, after due notice of the Tarrant county suit, to therein plead said matter of abatement, such matter could not be given effect for the first time in this court, and that the same would not constitute cause to refuse the prayer of the motion to affirm, or to grant Blassingame's prayer for a postponement of our action until after the determination of the appeal from the district court of Ochiltree county. The motion to affirm was accordingly, on, to wit, January 23, 1915, granted by us, and this court duly entered its judgment in favor of the Cattlemens Trust Company for the amount adjudged in its favor below, together with the further sum of 10 per cent. thereon as damages for delay and all costs of the proceedings, against Blassingame and the said sureties upon his supersedeas bond. From this judgment of affirmance Blassingame later sued out a writ of error to our Supreme Court, but the writ was dismissed by that court on the ground of a want of jurisdiction. Yet later, on, to wit, the 23d day of June, 1915, the mandate of this court was regularly issued and transmitted to the district court of Tarrant county, directing the enforcement of our said judgment. The district court of Tarrant county thereupon regularly issued execution, directed to the sheriff of Ochiltree county, commanding him to make the sums of money adjudged by this court, which execution was levied upon lands belonging to Blassingame situated in Ochiltree county, and such lands were advertised for sale on September 2, 1915.

Thereafter, to wit, on or about August 1, 1915, Blassingame presented to the presiding judge of the district court of Tarrant county a petition praying that said judgment in said court and said execution sale be enjoined. In this petition Blassingame, in substance, set up the facts, so far as necessary to here state, as we have hereinbefore recited them, asserting the superiority of the judgment in the district court of Ochiltree county, and further averred that he had been misinformed as to his right or duty to plead the institution of the prior suit in Ochiltree county in the suit in Tarrant county, and that he had omitted to plead such matter in abatement upon the advice of his attorneys. The district judge of Tarrant county, to whom the petition was presented, indorsed his fiat thereon, commanding the Cattlemens Trust Company to appear before him on August 11, 1915, and show cause why the temporary writ of injunction prayed for should not be granted. The Cattlemens Trust Company appeared, and on a hearing of the motion, on, to wit, the 26th day of August, 1915, Hon. Ben M. Terrell, judge of said district court of Tarrant county, entered his order stating that:

"The court, having heard and fully considered said application, is of opinion that same should be in all things denied and refused; and it is accordingly so ordered, adjudged, and decreed."

It does not appear that any appeal was taken from the order last named. The next step on the part of Blassingame was the presentation by him on the 1st day of September, 1915, of a petition to Hon. Frank Willis, respondent herein, judge of the district court of the Thirty-First judicial district, seeking to enjoin the threatened execution sale hereinbefore mentioned and the said judgment upon which it rested. The petition set up the institution of the conflicting judgments, as hereinbefore recited, and the fact of the appeal pending in the Seventh supreme judicial district, omitting any reference to the proceeding in this court which resulted in the judgment of affirmance we have described, and the prayer was that the sheriff of Ochiltree county be "restrained and enjoined from further executing or enforcing said judgment of Tarrant county district court until the decision of the honorable Court of Civil Appeals of Amarillo in this case, and that on final hearing hereof said judgment be made perpetual, and for general and special legal and equitable relief." Hon. Frank Willis indorsed his order upon the petition granting the issuance of the temporary writ of injunction as prayed for, and it is to further proceedings under the writ of injunction issued pursuant to said order that the relator, the Cattlemens Trust Company, now interposes its petition for a writ of prohibition, as stated in the beginning of this opinion. The respondents Blassingame and Willis, in obedience to the notice of this court to show cause why the writ should not issue, have appeared and filed written answers. There is no denial of the material facts stated; the contention of respondents constituting in its essence a mere denial, for various reasons, of a power in this court to issue a writ of prohibition such as sought in this case.

While it seems to be true, as respondents insist, that no Court of Civil Appeals in Texas has ever issued such a writ, yet we have no doubt of the power of such court to do so in a proper case. Section 6, article 5, of our Constitution, after providing for a division of Texas into supreme judicial districts, and for the establishment of a Court of Civil Appeals in each of said districts, declares, among other things, that such courts "shall have appellate jurisdiction coextensive with the limits of their respective districts, which shall extend to all civil cases of which the district courts or county courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law." Said section of the Constitution further specially provides that said Courts of Civil Appeals "shall have such other jurisdiction, original and appellate, as may be prescribed by law." Later the Legislature, in defining the jurisdiction of the Court of Civil Appeals, among other things, enacted that:

"The said courts and the judges thereof shall have the power to issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts."

See Vernon's Sayles' Texas Civil ...