Deramus v. Thornton, No. A-7593

CourtSupreme Court of Texas
Writing for the CourtCULVER; SMITH
Citation160 Tex. 494,333 S.W.2d 824
PartiesW.N. DERAMUS III, Relator, v. Honorable W.L.(Jack) THORNTON et al., Respondents.
Decision Date24 February 1960
Docket NumberNo. A-7593

Page 824

333 S.W.2d 824
160 Tex. 494
W.N. DERAMUS III, Relator,
v.
Honorable W.L.(Jack) THORNTON et al., Respondents.
No. A-7593.
Supreme Court of Texas.
Feb. 24, 1960.
Rehearing Denied April 6, 1960.

[160 Tex. 495]

Page 825

W. A. Thie, M. E. Clinton, M. W. Reeves, Denison, O. O. Touchstone, Dallas, Dan Moody, Jake Jacobsen, Austin, for relator.

Turner, Rodgers, Winn, Scurlock & Terry, Dallas, for respondent.

CULVER, Justice.

On application of Neuhoff Brothers, a temporary injunction was granted in the 44th Judicial District Court of Dallas County in 1956 restraining the Missouri-Kansas-Texas Railroad Company of Texas, together with its agents, officers, servants and employees from willfully blocking or obstructing Alamo Street in the City of Dallas for more than five minutes at any one time by permitting their trains or cars to stand on and across that intersection. The Court of Civil Appeals affirmed. Missouri-Kansas-Texas R. Co. v. Neuhoff Bros., 297 S.W.2d 316, n. r. e.

On January 26, 1959, Neuhoff Brothers, through its President, filed an affidavit and complaint charging that the Missouri-Kansas-Texas Railroad Company of Texas and certain officers, agents and employees of the Company, namely, W. N. Deramus, the President of the Company and others had willfully violated the injunctive order by permitting and causing the blocking of the Alamo Street crossing on 86 separate occasions for periods varying from six minutes to on one occasion more than an hour, during the period of from January 2 to July 16, 1958, and that the railroad and its officers and agents were, therefore, in contempt[160 Tex. 496] of court. Notice was accordingly issued and a hearing was had. The Court found that the crossing had been blocked in excess of five minutes on 86 different occasions during the period as alleged. He adjudged that the relator, Deramus, 'acting individually and as an officer of the Missouri-Kansas-Texas Railroad Company of Texas * * * did knowingly, willfully and with full knowledge of and in violation of the order and judgment of the 44th Judicial District Court of Dallas County, Texas, permit and cause the Alamo Street crossing in the City of Dallas, Texas, to be blocked by a standing train for a period of time in excess of five minutes.' The Court, therefore, held the relator, Deramus, to be in contempt of court for each and every one of the above set forth 80 separate and distinct

Page 826

acts. 1 The Court fixed his punishment at a fine of $50 and confinement in the county jail for a period of three days for each and every separate alleged violation, totaling a fine in the sum of $4,000 and confinement for 240 days. The relator was further ordered confined until such time as he had fully paid the fine assessed, together with all costs of court. In that judgment the Court also found officials R. B. George, Superintendent of the North Texas District and Eugene Franklin, Superintendent of the Dallas Terminals, guilty as charged on 80 separate violations, and assessed each a fine of $800, and a jail sentence of 160 days. Certain operating employees were also held guilty of contempt and punishment was assessed as follows: E. E. Cook guilty of one violation, fined $5 and one day in jail; F. V. Davenport guilty of one violation, fined $5 and one day in jail; C. B. Huffaker four violations, $20 fine and four days in jail; G. W. Morgan two violations, $10 fine, two days in jail; R. Peters one violation, $5 fine and one day in jail; G. W. Railey one violation, $5 fine and one day in jail. Additionally, Missouri-Kansas-Texas Railroad Company of Texas was held in contempt for each and all of the 80 separate violations and assessed a fine of $8,000.

The decree provided in conclusion that the fine and imprisonment assessed against cach and all 'shall be and is hereby suspended for a period of 120 days immediately succeeding the date of this judgment.'

In an informal conference with the Judge of the 44th District Court, in Chambers, prior to rendition of judgment, counsel for all parties being present, the Judge inquired as to the length of time required to begin the construction of a grade [160 Tex. 497] separation at the Alamo crossing, including the drawing of the plans and other preliminary matters and was told that it would probably take about three months. The Judge then stated that he would probably allow 120 days to get the construction under way.

Preliminary to announcement of the judgment the Court spoke in part as follows from the bench:

'I have reached a conclusion here which I believe and which I hope will clear up the situation out there that has been a thorn in the side of Neuhoff and the railroad for several years. It occurs to me that it would be in the interest of the railroad and to Neuhoff to cooperate with one another in order that the situation might be remedied. * * * I want to impress upon you this idea-the convictions here have been suspended for 120 days. This has been done because the Court has been assured by the officers of the railroad that within that length of time the construction work which will finally result in an underpass at this place will have begun. This Court has no desire to be vindictive about this matter. I am interested in upholding the judgment of the Court, not only by this Court, but of all courts.'

Actual construction on the underpass began within 120 days from the date of the judgment and has been and is being prosecuted with diligence. No further action was taken in this cause until November 19, 1959, when the Judge informed the railroad's attorney that he had set the following November 27th as the date when the relator, Deramus, and all others that had been adjudged in contempt were to be present in court and receive their sentences, both fines and commitments, as a result of the judgment theretofore entered on April 13, 1959. This occurred some 216 days after the entry of that judgment and the suspension that had been granted for 120 days.

Page 827

Thereafter we granted the motion for leave to file the petition for writ of mandamus in behalf of the relator, Deramus, praying that the Judge of the 44th District Court be ordered and commanded to vacate and expunge said contempt judgment against relator and to dismiss the contempt proceedings.

The relator contends that the writ of mandamus is available to him under the circumstances here and that the alternate remedy of habeas corpus is inadequate. It is inadequate only, he says, because it would necessitate his arrest and confinement, at least temporarily, until his application for relief could be [160 Tex. 498] presented to this Court, thereby entailing the stigma of this procedure. But that would be true in every case of this nature. Had the District Judge not suspended the judgment of contempt the normal course would have followed, and the remedy adopted by the relator could necessarily have been an application for a writ of habeas corpus.

Even so there is considerable logic in relator's contention and ample supporting authority from other jurisdictions. 2 We have uniformly held in this State, however, that the validity of a contempt judgment can be attacked only collaterally and that by way of habeas corpus. Recent decisions to that effect are: Tims v. Tims, Tex.Civ.App., 204 S.W.2d 995, wr. er. ref.; Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890; Ex parte Arapis, 157 Tex. 627, 306 S.W.2d 884.

We do have authority to correct the action of a trial judge in the abuse of his discretion, or in violation of his clear duty under the law, where there is no adequate remedy by appeal, and even to direct a trial judge to enter an order of dismissal where that is the only proper judgment that can be rendered on undisputed facts. City of Houston v. Adams, 154 Tex. 448, 279 S.W.2d 308; Thomason v. Seale, 122 Tex. 160, 53 S.W.2d 764. Therefore this matter becomes not so much a question of jurisdiction to entertain this application for mandamus, but rather the consideration of a long-established policy. Nevertheless, in view of the unbroken line of authorities we are reluctant to depart from a judicial path so well landmarked, especially so since the claimed inadequacy of habeas corpus in this instance is one common to all cases where escape is sought from the penalties of a contempt judgment. This in itself, we think, is sufficient justification for our refusal of this application. To do otherwise would completely change the procedure long followed in this State and allow in every case an attack on the order of contempt by way of mandamus. Moreover, the presumption obtains that a judge will not attempt to enforce a void order and...

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84 practice notes
  • Luttrell v. El Paso Cnty., No. 08-16-00090-CV
    • United States
    • Court of Appeals of Texas
    • December 20, 2017
    ...as nearly as practicable to those in criminal cases. See Ex parte Johnson, 654 S.W.2d 415, 420 (Tex. 1983) (citing Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824, 829 (1960); Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306, 311 (1939)). In most instances, this will require a trial court to ap......
  • Metzger v. Sebek, No. 01-92-00912-CV
    • United States
    • Court of Appeals of Texas
    • September 29, 1994
    ...n. 1; Saenz v. Saenz, 756 S.W.2d 93, 95 (Tex.App.--San Antonio 1988, no writ); Anderson, 583 S.W.2d at 467; but see Deramus v. Thornton, 160 Tex. 494, 497-98, 333 S.W.2d 824, 827 (1960) (stating that there may be circumstances in some contempt proceedings that would make a remedy by habeas ......
  • Luttrell v. El Paso Cnty., No. 08-16-00090-CV
    • United States
    • Court of Appeals of Texas
    • July 26, 2018
    ...as nearly as practicable to those in criminal cases. See Ex parte Johnson, 654 S.W.2d 415, 420 (Tex. 1983) (citing Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824, 829 (1960) ; Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306, 311 (1939) ). In most instances, this will require a trial court to ......
  • Ridgway v. Baker, No. 82-1561
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 12, 1983
    ...right to counsel should be decided on case-by-case basis). 6 See also Ex parte Hiester, 572 S.W.2d 300 (Tex.1978); Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824, 829 (1960); Ex parte Ratliff, 117 Tex. 325, 3 S.W.2d 406 (1928); Ex parte Hosken, 480 S.W.2d 18 7 This is a fact that was rec......
  • Request a trial to view additional results
84 cases
  • Luttrell v. El Paso Cnty., No. 08-16-00090-CV
    • United States
    • Court of Appeals of Texas
    • December 20, 2017
    ...as nearly as practicable to those in criminal cases. See Ex parte Johnson, 654 S.W.2d 415, 420 (Tex. 1983) (citing Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824, 829 (1960); Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306, 311 (1939)). In most instances, this will require a trial court to ap......
  • Metzger v. Sebek, No. 01-92-00912-CV
    • United States
    • Court of Appeals of Texas
    • September 29, 1994
    ...n. 1; Saenz v. Saenz, 756 S.W.2d 93, 95 (Tex.App.--San Antonio 1988, no writ); Anderson, 583 S.W.2d at 467; but see Deramus v. Thornton, 160 Tex. 494, 497-98, 333 S.W.2d 824, 827 (1960) (stating that there may be circumstances in some contempt proceedings that would make a remedy by habeas ......
  • Luttrell v. El Paso Cnty., No. 08-16-00090-CV
    • United States
    • Court of Appeals of Texas
    • July 26, 2018
    ...as nearly as practicable to those in criminal cases. See Ex parte Johnson, 654 S.W.2d 415, 420 (Tex. 1983) (citing Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824, 829 (1960) ; Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306, 311 (1939) ). In most instances, this will require a trial court to ......
  • Ridgway v. Baker, No. 82-1561
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 12, 1983
    ...right to counsel should be decided on case-by-case basis). 6 See also Ex parte Hiester, 572 S.W.2d 300 (Tex.1978); Deramus v. Thornton, 160 Tex. 494, 333 S.W.2d 824, 829 (1960); Ex parte Ratliff, 117 Tex. 325, 3 S.W.2d 406 (1928); Ex parte Hosken, 480 S.W.2d 18 7 This is a fact that was rec......
  • Request a trial to view additional results

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