Dallas Joint Stock Land Bank v. Ballard, 1390.

• Decision Date: 22 June 1934
• Docket Number: No. 1390.,1390.
• Citation: 74 S.W.2d 297
• Parties: DALLAS JOINT STOCK LAND BANK OF DALLAS v. BALLARD et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

74 S.W.2d 297

DALLAS JOINT STOCK LAND BANK OF DALLAS v. BALLARD et al.^*

No. 1390.

Court of Civil Appeals of Texas. Eastland.

June 22, 1934.

Rehearing Denied July 13, 1934.

Appeal from District Court, Haskell County; Clyde Grissom, Judge.

Suit by T. E. Ballard, independent executor, and others, against the Dallas Joint Stock Land Bank of Dallas for an injunction to prohibit execution of order of sale obtained by the defendant in an action for foreclosure of deed of trust liens upon lands of plaintiff. From a judgment granting an injunction prohibiting execution of order of sale until December 1, 1934, defendant appeals.

Reversed and dismissed.

Renfro & McCombs, of Dallas, for appellant.

F. T. Baldwin, of Houston, for appellee.

FUNDERBURK, Justice.

The Dallas Joint Stock Land Bank, on October 27, 1933, recovered judgment in the district court (101st judicial district) of Dallas county, against T. E. Ballard and others, for $40,940.08, with foreclosure of deed of trust liens upon lands in Haskell county. After the judgment became final, an order of sale was issued, as directed in the judgment, and was executed by the sheriff to the extent of giving notice, as provided by law, of the proposed sale of the land on March 6, 1934.

The instant suit was filed in the district court of Haskell county by the defendants in said judgment to enjoin the sale under authority of chapter 16, p. 42, General and Special Laws, 43d Legislature, Second Called Session (Vernon's Ann. Civ. St. art. 3804 note). The act is also referred to as Senate Bill No. 3. There was a prayer for a temporary restraining order, which was granted, and had the effect of preventing the sale as advertised. At a hearing of the case, held on March 10, 1934, for the purpose of determining whether the injunction sought should be granted, the court entered its order granting same, with the effect of prohibiting execution of the order of sale until December 1, 1934. The defendant the Dallas Joint Stock Land Bank has appealed.

Submission of the case in this court was advanced upon the supposition that the appeal was from an interlocutory order granting a temporary injunction. R. S. 1925, art. 4662. The appeal is in fact from a final judgment. The injunction is not temporary in the ordinary sense that it operates only until final judgment on the merits of the case. See Hamner v. Headrick (Tex. Civ. App.) 66 S.W.(2d) 1106.

Appellant made three contentions in the trial court, which, being overruled, are renewed in this court as grounds for reversal of the judgment. It is insisted, first, that R. S. 1925, art. 4656, required that the writ of injunction, being one to stay proceedings in the district court of Dallas county, should have been made returnable to, and tried in, that court; second, that said act of the Legislature (which may also be referred to as the moratorium statute of 1934, or Senate Bill No. 3 [Vernon's Ann. Civ. St. art. 3804 note]) is void, because it impairs the obligations of contracts within the prohibition of the Constitution, art. 1, § 16; third, that, even if said statute be valid, the appellant, being an agency of the federal government, is exempt from its provisions.

In so far as the first question may involve a mere construction of said moratorium statute of 1934, apart from any question of the constitutionality of said act, we are of the opinion that the trial court was by the terms of the act given jurisdiction to hear and determine the case. The statute provides: "* * * When a sale of real property under execution or order of sale is threatened the Judge of the District Court of the county in which the land or a part thereof is situated, or the Judge of the Court from which the execution or order of sale is issued, upon presentation of a verified petition embracing" certain allegations "may in his discretion issue an order temporarily restraining the sale under the * * * order of sale or execution. In such cases the Judge shall set for a hearing on the petition within ten (10) days from the date of the restraining order and shall cause notice to be given to the parties against whom complaint is made in the manner now provided by law, and upon such hearing, if the allegations in the petition are found to be true, the Judge may, in his discretion, grant a temporary injunction restraining the sale for a reasonable time, not beyond Feb. 1, 1935." Section 3. (Italics ours.) It is clear that the last sentence quoted, although it denominates the injunction as "temporary," deals with an injunction to be granted or refused upon hearing, and the powers thus granted constitute the full extent of the powers granted to any court or judge under the provisions of the act. If the statute be valid, it necessarily supersedes R. S. 1925, art. 4656, providing that: "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," etc. If the constitutional power of the Legislature be granted to enact a law giving one court or judge jurisdiction to stay proceedings in another court of co-ordinate jurisdiction, then we think it must be held that the Legislature has by this act clearly done so. The San Antonio Court of Civil Appeals in the Dallas Joint Stock Land Bank v. Ray, 71 S.W.(2d) 589, has not, we think, definitely committed itself to the view that there is no conflict between these statutes. It was merely held on rehearing, in effect, that, if the statute was not susceptible to a construction, not in conflict with said article 4656, it was unconstitutional and void.

A majority of the court are of the opinion that, in view of our conclusion upon the third question, that the appellant the Dallas...