Dallas Joint Stock Land Bank v. Ray, 9509.

• Decision Date: 02 May 1934
• Docket Number: No. 9509.,9509.
• Citation: 71 S.W.2d 589
• Parties: DALLAS JOINT STOCK LAND BANK et al. v. RAY et ux.
• Court: Texas Court of Appeals

Page 589

71 S.W.2d 589

DALLAS JOINT STOCK LAND BANK et al. v. RAY et ux.

No. 9509.

Court of Civil Appeals of Texas. San Antonio.

May 2, 1934.

Rehearing Denied May 23, 1934.

Appeal from District Court, Goliad County; J. P. Pool, Judge.

Suit by J. W. Ray and wife against the Dallas Joint Stock Land Bank and another. From an order granting a temporary injunction, defendants appeal.

Reversed and remanded, with directions.

Renfro & McCombs, of Dallas, and W. K. Hopkins, of Gonzales, for appellants.

L. J. Freeman, of Beeville, for appellee.

MURRAY, Justice.

This is an appeal from a temporary injunction issued by the judge of the district court of Goliad county, Tex., Twenty-fourth judicial district, after a hearing had, restraining C. M. Harbison, as sheriff of Goliad county and the Dallas Joint Stock Land Bank, as plaintiffs in a cause styled Dallas Joint Stock Land Bank of Dallas v. J. W. Ray, Ollie Ouida Ray, Texas Company, and C. M. Frost, and being cause No. 5499—B on the docket of the district court, Dallas county, Forty-fourth judicial district, from executing a certain order of sale issued by the clerk of the district court of Dallas county in the above-styled and numbered cause ordering the sheriff of Goliad county to sell 1,091.2 acres of land located in Goliad county, and fully described in the order of sale.

Appellees, J. W. Ray and wife, presented their petition for this injunction to the judge of the district court of Goliad county, on the 5th day of March, 1934, and a temporary restraining order was granted by the following fiat which was indorsed on the petition:

                "No. 4239
                "J. W. Ray et al. v. C. M. Harbison et al
                "In the District Court of Goliad County
                   Texas
                

"On this the 5th day of March, A. D. 1934, the foregoing petition was presented to the court, and the court being of the opinion that the plaintiffs should have the relief prayed for in their petition, it is therefore ordered, adjudged and decreed by the court that the defendants C. M. Harbison and Dallas Joint Stock Land Bank of Dallas be and are hereby restrained from selling or causing the land described in the foregoing petition to be sold under the order of sale issued by the 44th Judicial District Court of Dallas County, Texas, in Cause No. 5499-B styled The Dallas Joint Stock Land Bank of Dallas v. J. W. Ray, et al., and the clerk of this Court is hereby directed upon the filing of the foregoing petition to issue a restraining order restraining the defendants, and each of them, from selling or proceeding to sell the lands described in the foregoing petition under said order of sale, and further citing said defendants to appear on the 10th day of March, 1934, at 10 o'clock A. M. in the Courthouse of the District Court of Jackson County, Texas, at Edna, Texas, to show cause, if any, why a temporary injunction should not issue as prayed for in said petition.

                  "J. P. Pool, District Judge
                                 "Goliad County, Texas."
                

Upon the date set for the hearing, the judge of the district court of Goliad county heard the cause upon its merits and granted a stay of execution for sixty days under the provisions of S. B. No. 3 (c. 16), passed by the Last Called Session of the 43d Legislature of this state (Vernon's Ann. Civ. St. art. 3804 note).

We are thus confronted with the proposition of whether or not the district judge of Goliad county (Twenty-fourth judicial district) had jurisdiction to set this cause down for a hearing and upon a hearing enjoin the execution of an order of sale issued out of the district court of Dallas county (Forty-fourth judicial district), or would he be required, under the provisions of article 4656, R. S. 1925, to make such writ returnable to the Dallas court for a hearing?

Article 4656 provides 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."

It is clear that a hearing on this petition should not have been had before the judge of the Twenty-fourth judicial district, but the temporary injunction should have been made returnable to the Dallas court and any hearing or trial there had.

In 24 Tex. Jur., p. 163, § 119, we find the following:

"That portion of the article (4656) relating to injunctions to stay proceedings in a suit or execution upon a judgment has been said to be `imperative'. It is more than a mere venue statute; it has to do with jurisdiction. * * * Rather it is a law of comity for the protection of the dignity of our courts. The provision applies to all cases within its terms in which the injunction parties are the judgment parties, and in which the judgment is not void on its face."

In Gohlman, Lester & Co. v. Whittle, 115 Tex. 9, 273 S. W. 806, 807, Justice Greenwood, in delivering the opinion of the Supreme Court, quoted with approval the following, found in Adoue v. Wettermark, 22 Tex. Civ. App. 545, 55 S. W. 511, 514:

"It is necessary for the due and orderly administration of justice that the rule of comity which forbids one court from interfering with the execution of the judgments of another should be...