Ex parte Coffee

• Decision Date: 07 October 1959
• Docket Number: No. A-7439,A-7439
• Citation: Ex parte Coffee, 160 Tex. 224, 328 S.W.2d 283 (Tex. 1959)
• Parties: Ex parte John R. COFFEE and A. L. Holley, Relators.
• Court: Texas Supreme Court

Page 283

328 S.W.2d 283

160 Tex. 224

Ex parte John R. COFFEE and A. L. Holley, Relators.

No. A-7439.

Supreme Court of Texas.

Oct. 7, 1959.

Rehearing Denied Nov. 11, 1959.

John A. Coffee, George T. Thomas, John R. Coffee, Big Spring, for relators.

Ralph Logan, San Angelo, for respondent.

CALVERT, Justice.

This is an original habeas corpus proceeding filed in this court by relators to relieve themselves of penalties imposed by a judgment of contempt entered by the District Court of the 51st Judicial District. The judgment of contempt and imposition of penalties grew out of a violation by relators of a temporary injunction granted by the court in the following fact situation.

On May 29, 1959 R. L. Damron, a resident of Crane County, and Wm. W. Gruber, a resident of Tom Green County, presented to the judge of the aforesaid court at his chambers in Tom Green County their petition in which they sought injunctive relief against Kathleen Amberson, a resident of Dallas County, and John Coffee, G. L Holley and Louis Bankston, all residents of Howard County. It was alleged that plaintiffs were the owners of an interest in leasehold estates owned by Amberson Petroleum Company in certain lands located in Sterling County, which estates were subject to a deed of trust lien given to secure an indebtedness in favor of Mrs. Amberson; that the indebtedness was not due until September 10, 1959, but that the defendant, John Coffee, as substitute trustee, had posted notices of his intention to sell the property on June 2nd under power of sale contained in the deed of trust and unless restrained and enjoined from so doing would make the sale, to the plaintiffs irreparable injury. They prayed for a restraining order, for a temporary injunction and for a permanent injunction until the debt should become due.

Upon presentation of the petition to the District Judge a restraining order was issued restraining the defendant, John Coffee, from selling the property pending a hearing to be held on the prayer for a temporary injunction, which hearing was set at 10 o'clock a. m., June 8th, in the courtroom of the District Court in the courthouse at Sterling City, Sterling County, within the 51st Judicial District. The issuance of the restraining order was conditioned upon the filing by Damron and Gruber of a bond in the penal sum of $7,500, conditioned as required by law. A bond in that sum, conditioned that Damron and Gruber would abide the decision in the case and would pay all sums of money and costs which might be adjudged against them if 'the restraining order' should be dissolved, in whole or in part, was approved and filed by the Clerk of the District Court, Sterling County, on June 2, and the sale advertised for that date was avoided.

At the conclusion of the hearing on June 8th the court granted a temporary injunction restraining and enjoining all defendants from selling the property at trustee's sale under the deed of trust pending final hearing and determination of the cause or until September 10, 1959, whichever was earlier in time. The judgment contained the following order: 'And the bond heretofore filed with the Clerk upon issuance of the restraining order herein be, and is hereby continued in full force and effect as a temporary injunction bond.'

On July 15th the District Judge, sitting in Sterling County, pursuant to a show cause order and after hearing, determined that on July 7th relators, Coffee and Holley, did, in violation of the temporary injunction and in contempt of the court, sell and cause to be sold the property at trustee's slae to relator Holley, and that Coffee, as substitute trustee, executed, a deed conveying the property to Holley, which deed had been filed for record and recorded in Sterling County. The court assessed a fine of $100 against each of the defendants and ordered them confined in jail for twenty-four hours and thereafter until the fines and costs were paid and until they should purge themselves of their contempt by executing and filing of record a reconveyance of the property to Amberson Petroleum Company without prejudice to the rights, titles, etc. of lienholders or other persons as the same existed prior to the trustee's sale. It is from these penalties that relators seek relief in this proceeding.

Relators recognize the collateral nature of the attack they make on the trial court's judgment and that they are entitled to relief in this proceeding only if the judgment is void. They assert that the judgment is void for two reasons: because the trial court had no power, authority or jurisdiction to grant the temporary injunction, and because no bond was required or filed as a condition precedent to the issuance of the writ of temporary injunction as required by Rule 684, Texas Rules of Civil Procedure. If the order granting the writ of temporary injunction and the writ itself were void, then the judgment of contempt is also void. Ex parte Coward, 110 Tex. 587, 222 S.W. 531.

Relator's contention that the order granting the injunction was void because the court was without power or jurisdiction to grant it is based upon the failure of the trial judge to comply with Articles 4643 and 4656, Vernon's Annotated Texas Civil Statutes.

Article 4643 relates to the granting of writs of injunction by nonresident judges and reads as follows:

'No district judge shall grant a writ of injunction returnable to any other court than his own except in the following cases:

'1. Where the resident judge cannot hear and act upon the application by reason of his absence, sickness, inability, inaccessibility, disqualification or refusal to act, when such facts are fully set out in the application or in an affidavit accompanying same, and if such judge refuses to act, such refusal shall be indorsed by said judge on such writ with his reasons therefor. In such case no district judge shall grant the writ when the application therefor has once been acted upon by another district judge of this State.

'2. To stay execution, or to restrain foreclosure, sales under deeds of trust, trespasses, the removal of property, or acts injurious to or impairing riparian or easement rights, when satisfactory proof is made to such nonresident judge that it is impracticable for the applicant to reach the resident judge and procure his action in time to effectuate the purpose of the application.

'3. When the resident judge cannot be reached by the ordinary and available means of travel and communication in sufficient time to effectuate the purpose of the writ sought. In such case the applicant or his attorney seeking a writ on the ground of such inaccessibility shall attach to his application an affidavit fully stating the facts of such inaccessibility and his efforts made to reach and communicate with said judge, and the result thereof, and unless such efforts appear to have been fair and reasonable the application shall not be heard. Such injunction may be subsequently dissolved upon it being shown that the petitioner did not first make reasonable efforts to procure a hearing upon said application before the resident judge.'

Article 4656 reads 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; writs of injunction for other causes, if the party against whom it is granted be an inhabitant of the State, shall be returnable to and tried in the district or county court of the county in which such party has his domicile, according as the amount or matter in controversy comes within the jurisdiction of either of said courts. If there be more than one party against whom a writ is granted, it may be returned and tried in the proper court of the county where either may ahve his domicile.'

It is settled that Art. 4656 only applies to and governs the issuance and return of writs and trial in cases in which the relief sought is purely or primarily injunctive. Southwest Weather Research, Inc. v. Jones, Tex.Sup., 327 S.W.2d 417; Brown v. Gulf Television Co., 157 Tex. 607, 306 S.W.2d 706. In that type of suit Article 4643 directs that no district judge shall issue a writ returnable to any court other than his own except in specified emergency situations and upon adequate proof of the emergency, and if one of the emergency situations arises which authorizes the granting of emergency restraint by a nonresident judge, Art. 4656 directs, with the two exceptions set out in the opening clause, that the writ be made returnable to the county of residence of the defendant or of one of the defendants if there be more than one.

The petition presented to the Judge of the District Court of the 51st Judicial District in chambers in Tom Green County shows on its face that Damron and Gruber sought injunctive relief only. It also shows on its face that one of the defendants was a resident of Dallas County and the other three were residents of Howard County. We take judicial notice that neither Dallas nor Howard County is in the 51st Judicial District. It further shows on its face that the restraint sought was not to stay proceedings in a suit or execution on a judgment, but was to restrain a sale under a deed of trust. With those facts before him the District Judge, without requiring an affidavit or proof that it was impracticable to reach the District Judge of Howard County or one of the District Judges of Dallas County and procure action from one of them in time to halt the sale, granted a temporary restraining order returnable to his own court in Sterling County and there tried the right of the plaintiffs to and granted a temporary writ of injunction. The order granting the writ did not direct to what court the writ was returnable and the writ, if one was actually issued, is not in the record. We may assume, however, that the writ was returnable and returned to the court from which it was issued...