Ex parte Jones

• Decision Date: 13 June 1962
• Docket Number: No. A-8915,A-8915
• Citation: 163 Tex. 513,358 S.W.2d 370
• Parties: Ex parte Thomas Wilburn JONES.
• Court: Texas Supreme Court

Page 370

358 S.W.2d 370

163 Tex. 513

Ex parte Thomas Wilburn JONES.

No. A-8915.

Supreme Court of Texas.

June 13, 1962.

Merritt H. Gibson, Longview, for relator.

K. Baker, Crawford Parker, Jr., Carthage, for respondent.

SMITH, Justice.

Relator, Thomas Wilburn Jones, has filed in this Court a petition for a writ of habeas corpus alleging that he is illegally confined and illegally restrained in his liberty at Carthage, in Panola County, Texas, by Johnie Spradley, the Sheriff of said county. By this original proceeding Jones seeks release from the restraint of a judgment of the District Court of Panola County, Texas, adjudging him to be in contempt of that court.

It is necessary for this Court to state the facts, although we have no authority to evaluate facts. We may consider the facts only for the purpose of determining whether they constituted acts sufficient to confer jurisdiction upon the court to make the particular order. Ex parte Tyler, 152 Tex. 602, 261 S.W.2d 833; Ex parte La Rocca, 154 Tex. 618, 282 S.W.2d 700; Ex parte Fisher, 146 Tex. 328, 206 S.W.2d 1000, 1003.

The facts are these: The Relator, Thomas Wilburn Jones, and Marjorie Evelyn Jones, husband and wife, were legally divorced and the judgment dissolving the bonds of matrimony was entered by the District Court of Panola County, Texas, on September 14, 1961.

On August 30, 1961, prior to the date of the judgment of divorce, the Relator and Mrs. Jones executed a contract in settlement of their community property rights. The Divorce judgment of September 14, 1961 incorporated the contract by reference, subject only to the modification (also by agreement) that the house should be built in Woodcrest Addition instead of BelAire Addition. The pertinent portion of the contract is as follows:

'Party of the First Part (Petitioner) hereby agrees to construct, or cause to be constructed, a three (3) bedroom brick veneer residence, with living room, kitchen-den combination, one (1) bath and single carport upon a lot in the Bel-Aire Subdivision to the City of Carthage, Texas, on such lot and on such plans as the Parties shall agree upon and said lot and improvements to be conveyed and title thereto vested in Milton Payne and Lewis Pool, Trustees for Tommie Lynn Jones, Jennifer Jones, Melinda Jones and Tenna Marie Jones to be held and administered under the terms of the Trust Agreement and executed by the parties hereto on the (1) day of (April), 1961, subject however to the covenant and right of Party of the Second Part (Marjorie Evelyn Jones) to the use of such house and lot as a residence for Party of the Second Part and the children born of this marriage, in her custody, for as long as Party of the Second Part shall desire to use same as her homestead, or until such time as the Party of the Second Part shall remarry, and during the use by Party of the Second Part she shall pay all taxes assessed against said lot and improvements. It is understood that such rights and covenants in favor of the party of the Second Part shall be incorporated and made a part of the instrument of conveyance of such property in trust, subject, however, also to a Vendor's Lien to be reserved in favor of Party of the Second Part securing the payment of the written agreement as described and set forth under Paragraph B(4) hereafter. Such improvements to be completed within ninety (90) days after the approval of plans and specifications by Party of the Second Part.'

On December 6, 1961, Mrs. Jones filed a complaint alleging that Jones was in contempt because he had failed and refused to comply with the Court's judgment '* * * in that he has not built or caused to be built that certain dwelling house as provided in Paragraph III, Subsection A of the aforementioned agreement, all as provided for in the judgment of this Court.'

We note that at the time of the filing of this complaint the plans and specifications for the residence had not been agreed upon by the parties. Therefore, the ninetyday period fixed in the contract for the completion of the construction of the improvements had not commenced to run when this complaint was filed.

On December 19, 1961, the court held Jones in contempt for failure to complete the improvements as provided by the contract, and sentenced him to confinement in the county jail for seventy-two hours, and thereafter until he had complied with the following order of the court:

'1. Pay to the Petitioner the sum of $130.00, being the amount improperly charged for house payment against the $250.00 indebtedness.

'2. Pay the automobile insurance on Petitioner's automobile that was granted to her in the said above referred to Judgment entered on the 14th day of September, 1961.

'3. That Defendant will complete a three-bedroom, brick veneer residence with living room, kitchen-den combination, one bath, and single carport on the lot specified in the above referred to Divorce Decree, in a good and workmanlike manner, according to good and ordinary construction practice from one of the plans substantially agreed upon by the parties subject only to the right of this Plaintiff to select all color schemes and finishes, but not to include materials of construction.'

The order of December 19, 1961, further reflects that the court appointed Robert Brown, III, of Carthage, Texas, '* * * as Chancellor ¹ of this Court to certify to the proper construction of the said brick veneer residence and to make weekly reports to the Court to the proper construction including materials and workmanship to insure the adequacy of the residence herein ordered built so that the Court can determine whether or not such dwelling is commensurate with the ordinary three bedroom brick veneer residence in this vicinity.' This order further provides that 'the commitment of this Defendant will be suspended until February 23rd, 1962, at 10 a. m., and the Court directs both Petitioner and Respondent to be present at that time so that the Court may determine whether or not the Defendant is discharged from this contempt or whether or not commitment will issue.' (Emphasis added.)

Between the date of his appointment and February 13, 1962, Robert Brown, III, made several reports to the court by letter as to the progress of the work on the dwelling, and on February 13, 1962, made a report to the court as follows:

'All necessary corrections as listed in our letter of February 12, 1962 have been completed on the above named case. The writer attempted to contact the court by phone this date concerning the heating unit as previously discussed, but was unable to make connections. As far as the writer is concerned this job is complete and in accordance with standard building practices in the particular area of its location, and we would approve it accordingly. With this writing we are leaving the decision of the heating unit to be settled by the court.'

By agreement of the parties, the next hearing on this matter was held on February 20, 1962. The only purpose of this hearing was to determine whether Jones should be discharged or commitment should issue. The court's order made after such hearing recites that the court heard evidence 'including report and testimony of R. G. Brown, 3rd, the Chancellor appointed by the court, to the effect that the house in question had not been completed according to ordinary good construction practice, as required by the original judgment, until Respondent completed the installation of an attic fan and a central heating unit, properly connected to the duct system which had been installed, and the court further having found that Respondent had not delivered for the benefit of the minor children the lot and residence described in the property agreement and judgment until the proper Trustees had been delivered the title to such property free and clear of the existing Mechanic's and Materialman's Lien thereon held by the mortgagee builder or its assigns.'

The order further recites that

'* * * said Thomas Wilburn Jones, Respondent, continues in contempt of this Court as heretofore adjudged and will not be purged to such contempt until he has complied with the following

'1. Deliver a Deed of Conveyance to the Trustee for the minor children TOMMIE LYNN, MELINDA, TENNA MARIE and JENNIFER JONES, to the following described property:

'A lot or parcel of land located in the A. Moorman Survey, Panola County, Texas, and being further described as the North 110 feet of Lot 14, Block 94-A, Woodcrest Addition to the City of Carthage, as per plat recorded in the Plat Records, Panola County, Texas, free and clear of all incumbrance, save and except balance now due on that certain first lien in favor of Petitioner in the original amount of $6,000.00, said lien being to secure future property settlement payments.

'2. Install an 80,000 B.T.U. Heating System in said above described residence.

'3. Install a 42 inch attic fan in said above described residence.

'It is further ORDERED that the commitment of this Defendant will be further suspended until March 16, 1962, at 10 A.M.,...