Ex Parte Morgan

• Decision Date: 15 December 1909
• Citation: 124 S.W. 99
• Parties: Ex parte MORGAN.
• Court: Texas Court of Criminal Appeals

Page 99

124 S.W. 99

Ex parte MORGAN.

Court of Criminal Appeals of Texas.

December 15, 1909.

Rehearing Denied January 12, 1910.

Original application by Marie Morgan for writ of habeas corpus. Relator remanded to custody of sheriff.

Stuart & Bell, for appellant. F. J. McCord, Asst. Atty. Gen., and Davis & Thomason, for the State.

RAMSEY, J.

This is an original application for writ of habeas corpus, filed in this court on the 16th day of October, 1909, and was made returnable on the 27th day of the same month, when the application was presented on oral argument both by counsel for the state and for relator.

An agreed statement of facts was filed in the case, from which it appears that on the 15th day of April, 1908, R. V. Bell instituted suit in the district court of Cooke county, seeking an injunction against relator, charging that she was engaged in keeping a bawdy house as defined in article 359 of the Penal Code of 1895. Temporary injunction was granted, after a hearing, by Hon. Clem B. Potter, judge of the Sixteenth judicial district of Texas, on June 15, 1908, restraining relator from permitting prostitutes to ply their vocation upon said premises. From said order an appeal was prosecuted to the Court of Civil Appeals for the Second Supreme Judicial District of Texas, and on January 9th of this year judgment was in said court rendered affirming the judgment of the district court granting said temporary writ of injunction. Lane v. Bell, 115 S. W. 918. Thereafter, and within the time provided by law, relator in the case last named applied to our Supreme Court for writ of error, which was denied. The mandate of the Court of Civil Appeals in said cause was filed in the district court of Cooke county on August 3d of this year. On the 9th day of October, 1909, application was made by counsel for R. V. Bell, plaintiff in the cause above named, for attachment against relator, setting up a violation and disregard of the injunction theretofore granted. This application was signed by counsel for R. V. Bell, and was made in his behalf. It was sworn to, however, by J. A. Atchison, a citizen of Gainesville, who averred that the allegations contained in the application were true. It is admitted that Atchison was neither the agent nor attorney of said Bell; that he made the affidavit at the request of Bell's counsel. On the same day Judge Clem B. Potter entered an order on said application to enforce his judgment; and on the same day the clerk of the district court of Cooke county issued a writ of attachment, directed to the sheriff or any constable of Cooke county, and same was placed in the hands of H. P. Ware, sheriff of Cooke county, who took relator under such process into his custody. Thereafter on the 15th day of October, 1909, R. V. Bell himself filed statutory oath in said case, affirming that the allegations contained in the application to enforce writ of injunction filed in the cause on the 9th day of October preceding were true. It is agreed, however, that the filing of this affidavit was unknown to the said Marie Morgan and her counsel until after the issuance of writ of habeas corpus by this court. In this state of the record relator relies for release upon several propositions.

1. It is contended that, inasmuch as the original affidavit for attachment was not filed either by the plaintiff, his agent or attorney, that all subsequent proceedings should be treated as void and without authority of law, for that article 3012 of the Revised Statutes of 1895 expressly provides that the attachment in contempt for the violation of an injunction shall be issued by the court or judge when the complainant, his agent or attorney, shall file in the court or with the judge his affidavit stating the person guilty of such disobedience, and that under the conceded facts Atchison was neither the agent nor the attorney of R. V. Bell, and that the whole proceedings must fail, and the arrest and detention of relator were without authority of law. They further contend that, if the original detention and arrest were without warrant of law, the validity of this process could not be aided by filing thereafter proper affidavit. They also contend that the act of the Legislature under which the original suit was instituted, and on which the original judgment was founded, is in violation of section 35, art. 3, of the Constitution. This section of the Constitution is as follows: "No bill (except general appropriation bills, which may embrace the various subjects and accounts for and on account of which moneys are appropriated) shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed." In this connection the contention is also made that...