Churchill v. Martin
| Decision Date | 29 January 1886 |
| Docket Number | Motion No. 18 |
| Citation | 65 Tex. 367 |
| Parties | J. S. CHURCHILL ET AL. v. BARCLAY MARTIN. |
| Court | Texas Supreme Court |
APPLICATION to the supreme court for injunction against the judge and the clerk of the district court of San Saba.
On December 14, 1885, Barclay Martin recovered, in the district court of San Saba county, a judgment awarding him a peremptory mandamus, requiring the defendants in the suit, who had in charge the public free schools of the town of Burnet, in Burnet county, to receive him as a pupil in the schools. The defendants' motion for new trial was overruled, and they gave notice of appeal. On December 17, 1885, the peremptory writ awarded, was issued. On December 26, the defendants filed their supersedeas appeal bond, which was approved.
On January 7, 1886, the defendants presented and filed in this court a petition for injunction, to restrain the judge and the clerk of the district court from immediately executing the judgment appealed from. It was averred that neither the judge nor the clerk recognized that the appeal suspended the execution of the judgment, and its enforcement, in spite of the appeal, was seriously apprehended. On January 9, 1886, the judges of this court endorsed upon the petition a fiat, ordering the clerk to issue a notice to the judge and the clerk, requiring them to show cause, on the 22d instant, why the injunction prayed for should not be granted, and an order, in the meantime, restraining them from executing the judgment.
The judge and the clerk filed answers, which show that nothing had been done or intended toward the execution of the judgment, since the appeal bond was filed. The case was submitted to the court on petition, exhibits, and answers.
J. G. Cook, for applicant, that a judgment of the district court, awarding a peremptory writ of mandamus, is superseded by an appeal to the supreme court, cited: R. S., 2268, 2271; Griffin v. Wakelee, 42 Tex. 516;Williams v. Ponns, 48 Tex. 144.
That the control which district courts have, during a term of court, over its judgments rendered at such term, is limited to the power to alter, amend or set aside the same, he cited: Garza v. Baker, 58 Tex. 487;Blum v. Wettermark, 58 Tex. 125.
On the question of jurisdiction of the supreme court, he cited: Wells v. Littlefield, 62 Tex. 30;Garza v. Baker, 58 Tex. 487.
That the execution of a judgment awarding a peremptory writ of mandamus, may be suspended by a proper appeal bond is not an open question in this court. Griffin v. Wakelee, 42 Tex. 513. After the approval of such a bond, the district court, during the term, still has jurisdiction to modify or set aside the judgment appealed from, (Blum v. Wettermark, 58 Tex. 125;Garza v. Baker, 58 Tex. 487) but not to enforce such judgment. When the bond...
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...appropriate bond for this purpose, pending the appeal in this court." This doctrine was adhered to by this court in the case of Churchill v. Martin, 65 Tex. 367, where this court, citing the Griffin Case, supra, "That the execution of a judgment awarding a peremptory writ of mandamus, may b......
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...Worth Street Railway Co. v. Rosedale Street Railway Co., 68 Tex. 163, 168, 7 S. W. 381; Griffin v. Wakelee, 42 Tex. 513, 515; Churchill v. Martin, 65 Tex. 367, 368; Crary v. Port Arthur Channel & Dock Co. (Tex. Civ. App.) 45 S. W. 842, 844; Lee v. Broocks, 51 Tex. Civ. App. 344, 111 S. W. 7......
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...is necessary to enforce the jurisdiction of this court that it has the power to issue it. City of Laredo v. Martin, 52 Tex. 548; Churchill v. Martin, 65 Tex. 367.' (Emphasis The Supreme Court jurisdiction then, as now, was limited by Article 5, Sec. 3 of the Constitution to issuance of writ......