Ex Parte Beamer

• Decision Date: 16 June 1926
• Docket Number: (No. 4136.)
• Citation: 285 S.W. 255
• Parties: Ex Parte BEAMER et al.
• Court: Texas Supreme Court

Page 255

285 S.W. 255

Ex Parte BEAMER et al.

(No. 4136.)

Supreme Court of Texas.

June 16, 1926.

Habeas corpus by M. R. Beamer and another against L. J. Polk, Judge of the Ninety-Third Judicial District, and others to be relieved of an alleged restraint of their liberties. Application dismissed.

Gause & Kirkpatrick, of Mercedes, and D. W. Glasscock, of McAllen, for applicants.

Don A. Bliss, of San Antonio, for respondents.

PIERSON, J.

Relators M. R. Beamer and H. B. Seay seek by the writ of habeas corpus to be relieved of an alleged restraint on their liberties, alleging that they are illegally restrained of their liberties by L. J. Polk, judge of the Ninety-Third judicial district of Texas, A. Y. Baker, sheriff of Hidalgo county, and A. R. Baker, constable of precinct No. 6 of Hidalgo county, acting in their official capacities as named. As gleaned from the exhibits and the pleadings, the facts necessary to a decision of this case may be summarized as follows:

J. T. Ford and D. T. Ford brought suit in the district court of Hidalgo county against the Stewart Farm Mortgage Company, W. E. Stewart, W. E. McNeese, and the American Rio Grande Land & Irrigation Company, in which they allege that they had been induced to purchase a certain tract of land through false and fraudulent representations, and sought to recover damages and to have canceled certain notes and a deed of trust on the land to secure their payment, which notes were payable to the order of the American Rio Grande Land & Irrigation Company. After the said suit had been pending for some time, Robert E. Kirkpatrick, who had been appointed substitute trustee under the said deed of trust, advertised the land for sale to satisfy said notes, the cancellation of which was sought in the case. Upon motion of J. T. and D. T. Ford, on the 3d day of July, 1922, the district judge, L. J. Polk, entered his order restraining the said irrigation company and Robert E. Kirkpatrick, substitute trustee, from making the sale of said land as advertised until further ordered by the court. On October second thereafter the defendants American Rio Grande Land & Irrigation Company and Robert E. Kirkpatrick, substitute trustee, filed their motion to dissolve said injunction. On February 4, 1924, the American Rio Grande Land & Irrigation Company, through H. B. Seay, its vice president and general manager, caused the said Robert E. Kirkpatrick to resign as substitute trustee and appointed M. R. Beamer substitute trustee, and said Beamer proceeded again to advertise said land for sale under said deed of trust for the satisfaction of the notes, all of which were involved in the original suit pending. Upon motion of the plaintiffs, J. T. and D. T. Ford, Hon. L. J. Polk, district judge of the Ninety-Third judicial district, ordered an attachment to be issued, requiring the sheriff of Hidalgo county to bring the said M. R. Beamer and H. B. Seay before the court to show cause why they should not be dealt with for contempt of court. Upon hearing upon said contempt order, the court found said parties guilty of contempt, but that said contempt was unintentional, and the court imposed no punishment, except that said Beamer and Seay would be required to pay the cost of the contempt proceedings. No order was issued by the court committing them to the jail or to the custody of the sheriff or any other peace officer, but the said Beamer and Seay went at large at their will. Whereupon relators made application for writ of habeas corpus to this court, alleging that they were illegally restrained of their liberties by all of said hereinbefore mentioned respondents "under and by virtue of, or under color of, certain orders made and entered by said L. J. Polk as judge of the Ninety-Third judicial district court of Hidalgo county, * * * and also by virtue of certain process, being an attachment issued by the clerk of said court * * * on February 4, 1924," requiring them to show cause why they should not be punished for contempt.

The right to be discharged and freed from the alleged illegal restraint under the writ of habeas corpus in this...