Ex Parte Testard

• Decision Date: 08 January 1908
• Citation: 106 S.W. 319
• Parties: Ex parte TESTARD.
• Court: Texas Supreme Court

Page 319

106 S.W. 319

Ex parte TESTARD.

Supreme Court of Texas.

January 8, 1908.

Habeas corpus by Seth Testard against John W. Tobin, sheriff. Relator remanded.

Tarleton & Camp, for relator. R. V. Davidson, Atty. Gen., Jas. D. Walthall, Asst. Atty. Gen., and C. A. Davies, for respondent.

WILLIAMS, J.

This writ was issued on the application of relator, Testard, complaining that he was restrained of his liberty by the sheriff of Bexar county by virtue of a commitment issued out of the district court of that county upon a judgment thereof convicting relator of contempt of court in disobeying a writ of injunction previously issued and served. It is unnecessary to cite authorities to the proposition that this court is restricted to the inquiry whether or not the commitment is void.

Its nullity is asserted on several grounds, the first of which is that the writ of injunction for disobedience of which relator is held was void and insufficient to support a charge of contempt consisting in the violation of it. The writ was issued on the 9th day of November, 1907, reciting that the petition for injunction and the order of the district judge granting it had been filed November 8, 1907, and enjoining the defendant from doing the forbidden acts until the further order of said court to be held on the first Monday in January, 1907. It is thus seen that by its terms the writ was returnable at a time antecedent to its issuance. The clerical error is apparent, and could have misled no one. When served on the relator on November 11, 1907, the writ informed him of the order of the judge, the filing of the petition, and the issuance of the writ all at dates prior to such service. This knowledge was sufficient to make it his duty to obey the writ, and to bring him in contempt of the court when he disregarded it. 22 Cyc. 1013, and cases cited.

It is next objected that the notice of the motion made against him for the alleged contempt varied from that motion, in that it stated that the motion charged the act of violation to have been committed on the 11th, when in truth the allegation was that the act was committed on the 22d, of November, 1907. But this cannot affect the validity of the conviction. The notice brought the relator before the court, and according to the record a hearing was had upon the charge contained in the motion, and it was of that he was convicted. We must assume that the hearing was full and fair, and that ample opportunity was given him to meet the charge actually made. If so, the mere error in the notice as to the time the act was alleged to have been done became immaterial, even if in any case such an irregularity could be held material to the validity of the judgment of conviction.

The injunction forbade the purchase and sale by relator and others, as ticket brokers or "scalpers," of nontransferable coupon tickets of kinds designated in the writ and in the petition of the plaintiffs, who were several railroad companies engaged in the carriage of passengers. The case was much like that of Lytle v. G., H. & S. A. Ry. Co. et al. (Tex. Sup.) 99 S. W. 396, 10 L. R. A. (N. S.) 437, and need not be more fully stated. It is objected to the proceeding that there was a misjoinder of parties; that the writ prayed for and granted applied to tickets to be issued thereafter, as was the one sold by relator in the sale whereof he is charged to have been guilty of contempt; that the writ also applied to tickets for transportation between points within and points without the state; and that this was a regulation of or an interference with, interstate commerce. All of these objections might be disposed of by saying that they present nothing that can be urged in justification or excuse of a disregard of the injunction. Any merit they may have can receive proper recognition when properly presented in the...