Cleveland v. Ward, (No. 4224.)

CourtSupreme Court of Texas
Writing for the CourtCureton
Citation285 S.W. 1063
PartiesCLEVELAND et al. v. WARD, Judge, et al.
Docket Number(No. 4224.)
Decision Date09 June 1926
285 S.W. 1063
CLEVELAND et al.
v.
WARD, Judge, et al.
(No. 4224.)
Supreme Court of Texas.
June 9, 1926.

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COPYRIGHT MATERIAL OMITTED

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Original application for mandamus by John L. Cleveland and others against Irwin T. Ward, Judge of the District Court of the Eighteenth Judicial District in and for Johnson county, and others. Writ granted.

See, also, 265 S. W. 732.

Thomas, Frank, Milam & Touchstone, of Dallas, Spell, Naman & Penland, of Waco, and Keith & Prestridge, of Cleburne, for relators.

J. W. Hassell, C. F. O'Donnell, and Chas A. Rasbury, all of Dallas, for respondent Judges of Court of Civil Appeals.

Rosser J. Coke, of Dallas, Thos. G. Murname and Warren & Russell, all of Cleburne, and Coke & Coke, of Dallas, for other respondents.

Statement of the Case.

CURETON, C. J.


This controversy is before us on an original application for mandamus by John L. Cleveland, Annie H. Cleveland, T. K. Cleveland, and George Cleveland, against Hon. Irwin T. Ward, judge of the Eighteenth judicial district, composed of Johnson and other counties, the Home National Bank of Cleburne, Tex., James B. Long and W. T. Whaley, of Johnson county, and the American Exchange National Bank of Dallas. The relators pray for writ of mandamus against Judge Ward, requiring him to proceed with the trial of a certain cause in his court in Johnson county, No. 12207, styled John L. Cleveland et al. v. Home National Bank et al. They also pray for writs of prohibition against Judge Louis Wilson, judge of the Forty-Fourth district court at Dallas and the judges of the Court of Civil Appeals at Dallas, prohibiting and restraining the judges named and the courts presided over by them from enforcing certain orders hereafter named, and from punishing the relators for disobedience thereof, and restraining Judge Wilson from trying a case pending in his court in Dallas county, being No. 52470B,

Page 1066

styled Home National Bank of Cleburne v. John L. Cleveland et al. Prayer is also made for prohibitive and restraining orders against the attorneys for the respondent private parties.

The long train of events leading up to this proceeding will be stated in its chronological order, and with as much brevity as the record permits.

The controversy involves a suit between the parties in the district court of Johnson county, another in the district court of Dallas county, an original and one appellate proceeding in the Court of Civil Appeals at Dallas, as well as a contempt hearing and order in that court, an original proceeding in the Court of Civil Appeals at Fort Worth, and various orders, injunctions, writs of mandamus, and prohibition, issued by these several courts, each in aid of its own jurisdiction, but in serious conflict with the jurisdiction asserted by the other courts involved. So it may be said that in one proceeding here we are called upon to dispose of five cases pending in four different courts, involving many orders and numerous and intricate conflicts of power; and of necessity this opinion must be of greater length than is ordinarily desirable.

On June 18, 1924, John L. Cleveland and wife, Annie H. Cleveland, relators here, filed a suit in the district court of Johnson county against the Home National Bank of Cleburne, one of the respondents in the present action. The object of the suit was the cancellation of certain notes, renewals thereof, the deed of trust securing them, and the removal of the cloud cast thereby on the land described in the trust deed.

June 24th, six days after the filing of the suit just described, the Home National Bank, the defendant therein, joined by Joseph B. Long and W. S. Whaley, filed suit in the district court of Dallas county against John L. Cleveland and wife, Annie H. Cleveland, plaintiffs in the Johnson county suit, and also against George Cleveland and T. K. Cleveland. The object of this, the Dallas county suit, was to recover judgment on the identical promissory notes and to foreclose on the same deed of trust lien for the cancellation of which John L. Cleveland and wife had previously brought suit in the district court of Johnson county. Citation properly issued in both suits.

July 20, 1924, all the Clevelands filed a plea in abatement in the Dallas county suit, setting up the pendency of the Johnson county suit at the time of the filing of the Dallas county case, stating that the issues and the real parties at interest in the two cases were the same.

On the 30th of July, 1924, upon an ex parte application made by the Home National Bank and Whaley and Long, the Dallas county district judge appointed a receiver to collect and hold the rents from the properties covered by the lien in controversy. This receiver qualified, and is now acting in that capacity.

September 24, 1924, John L. Cleveland and Annie H. Cleveland, original plaintiffs in the Johnson county case, filed in that case their first amended original petition, wherein they, as well as T. K. and George Cleveland, were named as plaintiffs, and, in addition to the Home National Bank, W. S. Whaley, Joseph B. Long, and the American Exchange National Bank were named as defendants. Citation issued to the additional defendants. To state fully the contents of this pleading would unnecessarily prolong this opinion. Among other things, it showed the origin of the notes and deed of trust for the cancellation of which the Johnson county suit had been brought, and for the collection and enforcement of which the Dallas county suit was filed.

In the course of the transaction complained of, seven notes were executed by John L. Cleveland, three for $4,000 each, payable to the Home National Bank, and four to Joseph B. Long and W. S. Whaley, payable at the Home National Bank, aggregating $11,000. There were also four notes aggregating approximately $5,900, payable to the order of Joseph B. Long and W. S. Whaley, signed by George Cleveland, and indorsed by John L. Cleveland, and one note payable to the Home National Bank for $1,616, signed by T. L. Cleveland and indorsed by John L. Cleveland. Allegations of fraud were made against the bank and Long and Whaley, by reason of which it was said that the deed of trust became void, etc. It was stated in this amended petition that prior to the filing thereof Annie H. Cleveland and John L. Cleveland had conveyed the lands and properties involved to George Cleveland, but that in truth and in fact the property really belonged to Annie H. Cleveland, subject to certain rights held by George Cleveland. The pleading also alleged that the American Exchange National Bank was claiming some interest in the property, or was in some way holding some of the notes involved in the controversy. The prayer was for rescission and cancellation of the instruments involved in this litigation.

On October 12, 1924, the plaintiffs in the Johnson county case obtained an ex parte injunction from the Honorable Irwin T. Ward, district judge of that county, enjoining the Honorable Louis Wilson, the district judge of Dallas county, the Home National Bank, Joseph B. Long, and W. S. Whaley, from proceeding further in the Dallas county case, except to enter an order of dismissal, until further orders of the Johnson county district court. The application was based upon allegations that the Johnson county court had first acquired jurisdiction of the parties and subject-matter of both suits, and was entitled to go to judgment thereon.

Page 1067

On October 13, 1924, the parties appeared in the Dallas county district court, the plea in abatement filed theretofore by the four Clevelands on July 20th was heard, and on October 14th determined adversely to them by Judge Wilson. Thereafter on the same day the injunction issued on October 12th by the district judge of Johnson county was served on Judge Wilson, and on the 15th on Whaley, Long, and the Home National Bank.

On October 14, 1924, appearance day for the district court of Johnson county, all parties defendant answered, some moved to quash citations, and the bank moved for a continuance. The defendants called for a jury, and the court set the case regularly for trial on Monday, October 20th, at 9 o'clock a. m.

On October 18th the plaintiffs in the Johnson county case filed therein, under leave of the court, their second amended petition, setting forth more fully the grounds for avoidance and cancellation of the deed of trust, etc.

On this same date, Saturday, October 18th, the Home National Bank of Cleburne, Whaley, and Long, filed a petition for writs of mandamus and prohibition in the Court of Civil Appeals for the Fifth District at Dallas, in which they complained of the Honorable Irwin T. Ward, judge of the Cleburne district court, the four Clevelands, and their attorneys, naming them, and the Honorable Louis Wilson, judge of the Forty-Fourth district court at Dallas. The prayer was for a mandamus directing Judge Wilson to proceed with the trial of the Dallas county suit, and that a writ of prohibition or mandamus be issued against Judge Ward, the four Clevelands, their agents and attorneys, etc., prohibiting them from taking any action in the Johnson county case, etc.

Judge Wilson appeared by answer, but as to all others the hearing in the Court of Civil Appeals at Dallas was purely ex parte, and the writs of mandamus and prohibition were awarded.

The court afterwards modified this order, but just when is not clear to us from the record, nor is the matter of any consequence. By the modified order, Judge Wilson was directed "to proceed to trial and judgment, or to enter such preliminary or dilatory orders within the judicial discretion of said court, agreeably to the principles and usages of law." In order "to effectuate this order and judgment of the court" a writ of prohibition was granted prohibiting Judge Ward from holding Judge Wilson accountable for proceeding in the Dallas county case, in disregard of the injunction previously issued by Judge...

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380 practice notes
  • Walker v. Packer, No. C-9403
    • United States
    • Supreme Court of Texas
    • February 19, 1992
    ...occasions, this Court has used, or at least mentioned, the more lenient standard first articulated in Cleveland v. Ward, 116 Tex. 1, 14, 285 S.W. 1063, 1068 (Tex.1926), that the remedy by appeal must be "equally convenient, beneficial, and effective as mandamus." See, e.g., Jampole v. Touch......
  • Morrow v. Corbin, No. 6542.
    • United States
    • Supreme Court of Texas
    • June 24, 1933
    ...and to carry the sentence or judgment of the court into execution." 11 Texas Jurisprudence, p. 711, § 9; Cleveland v. Ward, 116 Tex. 1, 285 S. W. 1063. Writing with reference to the subject, the first authority cited declares: "Jurisdiction has been broadly defined as the power to hear and ......
  • Texas Dept. Parks and Wildlife v. Miranda, No. 01-0619.
    • United States
    • Supreme Court of Texas
    • April 2, 2004
    ...(1887) (objecting that forcible entry and detainer action was not filed in justice court). 11. See, e.g., Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, 1072 (1926), disapproved on other grounds, Walker v. Packer, 827 S.W.2d 833, 842 (Tex.1992); Grathaus v. Witte, 72 Tex. 124, 11 S.W. 1032, ......
  • Foster v. State, No. 61714
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 3, 1982
    ...37 S.W.2d 1041, 1046 (Tex.Civ.App.-Amarillo 1931), affirmed, Tex.Civ.App., 55 S.W.2d 797. Likewise, in Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, the Supreme Court of Texas "... Since the ... district court had no jurisdiction of this particular case, what was done therein was necessaril......
  • Request a trial to view additional results
380 cases
  • Walker v. Packer, No. C-9403
    • United States
    • Supreme Court of Texas
    • February 19, 1992
    ...occasions, this Court has used, or at least mentioned, the more lenient standard first articulated in Cleveland v. Ward, 116 Tex. 1, 14, 285 S.W. 1063, 1068 (Tex.1926), that the remedy by appeal must be "equally convenient, beneficial, and effective as mandamus." See, e.g., Jampole v. Touch......
  • Morrow v. Corbin, No. 6542.
    • United States
    • Supreme Court of Texas
    • June 24, 1933
    ...and to carry the sentence or judgment of the court into execution." 11 Texas Jurisprudence, p. 711, § 9; Cleveland v. Ward, 116 Tex. 1, 285 S. W. 1063. Writing with reference to the subject, the first authority cited declares: "Jurisdiction has been broadly defined as the power to hear and ......
  • Texas Dept. Parks and Wildlife v. Miranda, No. 01-0619.
    • United States
    • Supreme Court of Texas
    • April 2, 2004
    ...(1887) (objecting that forcible entry and detainer action was not filed in justice court). 11. See, e.g., Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, 1072 (1926), disapproved on other grounds, Walker v. Packer, 827 S.W.2d 833, 842 (Tex.1992); Grathaus v. Witte, 72 Tex. 124, 11 S.W. 1032, ......
  • Foster v. State, No. 61714
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 3, 1982
    ...37 S.W.2d 1041, 1046 (Tex.Civ.App.-Amarillo 1931), affirmed, Tex.Civ.App., 55 S.W.2d 797. Likewise, in Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, the Supreme Court of Texas "... Since the ... district court had no jurisdiction of this particular case, what was done therein was necessaril......
  • Request a trial to view additional results

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