Citizens' Bank v. Brandau

• Decision Date: 19 November 1927
• Docket Number: (No. 10123.)
• Citation: 1 S.W.2d 466
• Parties: CITIZENS' BANK v. BRANDAU et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

1 S.W.2d 466

CITIZENS' BANK v. BRANDAU et al.^*

(No. 10123.)

Court of Civil Appeals of Texas. Dallas.

November 19, 1927.

Rehearing Denied December 17, 1927.

Appeal from District Court, Dallas County; Claude M. McCallum, Judge.

Suit by W. H. Brandau and others against the Citizens' Bank of Hattiesburg, Miss. From an interlocutory judgment granting a temporary injunction, defendant appeals. Reversed and rendered.

Dabney, Goggans & Ritchie, of Dallas, for appellant.

Smithdeal, Shook, Spence & Bowyer, of Dallas, for appellees.

LOONEY, J.

This is an appeal from an interlocutory judgment of the 101st district court of Dallas county granting a temporary injunction, restraining the sale of real estate under a former judgment rendered by said court.

On July 22, 1926, the Citizens' Bank, of Hattiesburg, Miss., a state banking corporation, instituted suit in the 101st district court of Dallas county against Harry Beck, Zora Beck, his wife, W. H. Brandau, and wife, Mae Brandau, on a judgment for $9,200 recovered by the Magnolia Company in the United States District Court for the Northern District of Texas, at Dallas, against Harry Beck and D. H. Beck. The judgment was transferred to the Citizens' Bank, and an abstract of same was recorded in the judgment abstract records of Dallas county. The purpose of the suit was to establish the judgment as a lien and to foreclose the same on certain real estate located in the city of Dallas, formerly owned by Harry Beck, but conveyed by him and wife to W. H. Brandau and wife by regular warranty deed. The Citizens' Bank alleged that the conveyance from Beck and wife to the Brandaus was in fraud of creditors and sought to have said deed canceled.

On October 13, 1926, as Beck and wife had not been served with citation, the case was dismissed as to them, and judgment by default was taken against Brandau and wife.

In the default judgment, the court decreed a cancellation of the deed from Beck and wife to Brandau and wife, established the federal court judgment before mentioned as a lien on the real estate, and ordered it sold to satisfy the amount of the judgment, interest, and costs. An order of sale was duly issued and placed in the hands of C. M. Hart, a constable of Dallas county, who levied the same on the property in question, and advertised the same for sale on the first Tuesday in May, 1927.

At this juncture in the proceedings, Beck and wife and Brandau and wife filed this suit to enjoin, review, and set aside said judgment.

This case was docketed by the clerk in the 44th district presided over by Hon. Towne Young, who, on April 29, 1927, granted a temporary restraining order, directed the clerk to issue notice to the defendants to appear on May 14, 1927, to show cause why the restraining order should not be continued in force, and contemporaneously entered an order transferring the cause to the 101st district court.

On the day set for hearing, to wit, May 14, 1927, the 101st district court, being unable because of other matters to hear the cause, postponed the same without prejudice to May 28, and again postponed the hearing until June 2, 1927. On the latter date, the court overruled the plea to the jurisdiction of the court urged by appellant, its plea of misjoinder, the general demurrer urged to plaintiff's petition, and various special exceptions except Nos. 9 and 10, and the allegations at which they were leveled were stricken out, and, on further hearing, the court entered judgment continuing in full force and effect the restraining order as a temporary injunction until the case is finally heard on its merits. To all of which appellant duly excepted and from which it has perfected and prosecutes this appeal.

The first question presented by appellant is that the trial court erred in not sustaining the plea challenging its jurisdiction.

This contention is based on the idea that the restraining order should have been made returnable to the 101st district, the court that rendered the judgment under review, and that the failure so to do was not remedied by a transfer of the cause by the 44th district to the 101st.

Appellant cites, in support of its position, article 4656, Revised Statutes 1925, which is, in part, as follows:

"Writs of injunction granted to stay proceedings in a suit, or execution on a judgment, shall be returnable to and tried in the court where such suit is pending, or such judgment was rendered."

Appellant also cites a number of decisions holding in effect that this statute is mandatory, and, where the judgment attacked is not void, but merely voidable, a party thereto cannot maintain a suit in another court to enjoin its enforcement. The following cases announced this doctrine: Baker v. Southplains R. Co., 107 Tex. 566, 182 S. W. 287; Carey v. Looney, 113 Tex. 93, 251 S. W. 1040; Landa Cotton Oil Co. v. Watkins (Tex. Civ. App.) 255 S. W. 775; Murphy v. Bass (Tex. Civ. App.) 276 S. W. 767.

The proposition contended for by appellant is correct and should undoubtedly control in a case where applicable, but our opinion is that it has no application to the case at bar.

When this case was filed, the district clerk, who was clerk of all the district courts of Dallas county, docketed the same in the 44th district, as he was required to do by the act of the regular session of the Thirty-Ninth Legislature (chapter 61) approved March 9, 1925, which provides:

"Section 6. The letters A, B, C, D and E shall be placed on the dockets and court papers in the respective district courts of Dallas county to distinguish them, A being used in connection with the 14th district court, B, the 44th district court, C the 68th district court, D the 95th district court, and E the 101st district court.

"Section 7. All suits, prosecutions and proceedings hereafter instituted in the district courts of Dallas county shall be numbered consecutively, beginning with the next number after the last file number on the dockets of the existing courts, and shall be entered by the district clerk upon the dockets of said courts alternately, beginning with the 14th district court; next, the 44th district court, third, the 68th district court; fourth, the 95th district court; and fifth, the 101st district court. * * *"

Under the act that regulates practice in the civil district courts of Dallas county, Hon. Towne Young, judge of the 44th district, was authorized to issue the restraining order in question, and to transfer the cause to the 101st district. While the flat of the judge did not make the writ returnable to any named court, the effect of the simultaneous orders entered, that is, setting the hearing off for more than two weeks, and transferring the case to the 101st district, was to make the writ returnable to the latter court, hence the action of the clerk on issuing the writ the following day in making it returnable to the 44th district was unauthorized.

Appellant filed its plea and answer to the merits in the 101st district, where the hearing was had and the judgment appealed from was rendered.

We therefore hold that the restraining order was by the judge made returnable to the 101st district court, where the judgment sought to be enjoined was rendered, and that the provisions of article 4656, Revised Statutes 1925, in this respect were fully satisfied.

Appellee insists with great plausibility that the acts that regulate practice in the civil district courts of Dallas county have superseded article 4656 in the respect now under consideration. Under these acts, a litigant has no option to choose the court in which a case shall be docketed; it is the duty of the clerk to number cases consecutively and docket them alternately in the different civil district courts. The judge of each court is given authority in his discretion to exchange benches or districts to try and determine in his own courtroom any case or proceeding pending in any other court without having the case transferred; to sit in any other of said courts and hear any case there pending; to issue restraining orders and injunctions returnable to any other court or judge, and transfer any cause or proceeding, pending in his own court, to any other court, and the judge of any other court, to which a case or proceeding is transferred, shall receive and try the same, and in turn is authorized in his discretion to transfer any such cause to any other of said courts. Appellees insist that the effect of these statutes is to obliterate any distinction between the civil district courts of Dallas county, that these several courts constitute parts of a greater judicial organism, and that the provisions of the acts of the Legislature in question are inconsistent with article 4656.

This contention is worthy of serious consideration, but we do not deem it necessary to pass on the question, because, under our view as above set forth, these proceedings have been conducted in harmony with the provisions, both of article 4656 and the acts of the Legislature that regulate practice in the civil district courts of Dallas county, and for these reasons we also hold that the present suit is a direct, and not a collateral, attack on the judgment as contended by appellant.

Appellant urges the proposition that, as Beck and wife were not parties to the judgment complained of and disclaim any interest in the land sought to be sold under the judgment, they were improperly joined as plaintiffs, hence the court erred in not sustaining appellant's plea of misjoinder and dismissing them from the suit.

This contention is, in our opinion, well taken. Beck and wife were not parties to the judgment complained of. They disclaim, in the petition filed in this suit, any ownership or interest in the real estate affected by the judgment, and therefore show no right to enjoin its execution. McGhee v. Romatka, 18 Tex. Civ. App. 436, 44 S. W. 700. We are of the opinion, therefore, that the court erred in overruling the plea of misjoinder.

The...