Ex Parte Tinsley

• Decision Date: 14 April 1897
• Citation: 40 S.W. 306
• Parties: Ex parte TINSLEY.
• Court: Texas Court of Criminal Appeals

40 S.W. 306

Ex parte TINSLEY.

Court of Criminal Appeals of Texas.

April 14, 1897.

Habeas corpus by Thomas Tinsley to obtain his discharge from the custody of the sheriff of Harris county, to which he was committed by an order of the district court in contempt proceedings. Writ dismissed.

Fiset & Miller and Hudson & Seay, for applicant. Ewing & Ring and Mann Trice, for the State.

HENDERSON, J.

This is an original application to this court for a writ of habeas corpus. It appears that heretofore, in the district court of Harris county, Drew and others brought a suit against the Houston Cemetery Company, a corporation, and others, and, among other things, prayed for the appointment of a receiver. William Christian was appointed receiver, and, in the judgment appointing him, he was ordered, after giving bond and making affidavit, etc., to take possession of all the property of the Houston Cemetery Company, and, among other things, certain described notes, the minute book of said corporation, alleged to be in the hands of Thomas Tinsley, and also $492.52, a trust fund, alleged to be in the hands of said Thomas Tinsley. Thomas Tinsley was a defendant in said suit, and the order was directed to him to turn over said property to the receiver. Said receiver demanded the same, and, on the refusal of said Tinsley to make the delivery thereof, a writ of attachment was served on him, and he was brought before the court to show cause why he should not be committed for contempt of court in failing and refusing to deliver said property to the receiver. The applicant, Tinsley, filed his answer, and the matter was presented to the court, evidence heard on the issues presented, and the court made its order fining said Thomas Tinsley in the sum of $100, committing him to the custody of the sheriff and to the jail of Harris county as for a contempt of court, on account of his failure to turn over and deliver said property to the receiver; and the sheriff was instructed to hold him until said fine was paid, and, further, to retain him in custody until said property should be delivered to the receiver, or until the further order of the court. Said Thomas Tinsley made an application for a writ of habeas corpus to this court, which was granted, and the writ issued. On his being brought before the court, the respondent moved to dismiss the application and said writ, and remand the relator to the sheriff of Harris county, for the reason "that said application fails to show, either by the recitals therein or the exhibits thereto attached, that the judgment from which the relief is sought is void; but, on the contrary, the judgment attached thereto shows upon its face an adjudication, and the relator had willfully placed himself in contempt of said court, and adjudicates the question as a fact here set up to avoid said judgment against relator. If the truth of all of the facts alleged be conceded, the same are not sufficient in law to nullify the judgment rendered. (2) Said application is insufficient for the further reason that it fails to show that the relator has complied, so far as was within his power, with the orders of the court on which the contempt is based." This brings before us the question whether or not the matters and things contained in the application show a void judgment, or one which is merely erroneous; the rule being that where a court has jurisdiction over the subject-matter, although its judgment may be erroneous, it is not void, and in such case it cannot be reviewed on habeas corpus, but where the court is without jurisdiction of the subject-matter or of the parties, or lacks power to make the order in the particular case, it cannot punish for contempt or disobedience of such order. See Railroad Co. v. Wear (Mo. Sup.) 36 S. W. 357; In re McCain (S. D.) 68 N. W. 163; Ex parte Kearney, 7 Wheat. 38; Ex parte Kilgore, 3 Tex. App. 247. On the motion to dismiss, the question is to be tried on the application for the writ, and we will set out such parts of the petition as are essential to a disposition of this case. As stated before, the relator sets out in his application for the writ the proceedings on which the court below committed him for contempt,—that is, perhaps not all of the proceedings, but the substantial features of the suit, and the main facts upon which the court based its action,—which are as follows: On the 23d of April, 1896, Drew and others (some of the stockholders in the Houston Cemetery Company, a private corporation) brought suit in the district court of Harris county against said corporation, and Thomas Tinsley and others were made parties defendant therein. The corporation and the defendant answered in said suit. Among other things, the object of the suit was the appointment of a receiver to take charge of the property of the alleged insolvent corporation. On the hearing, William Christian was appointed receiver, and the court made its order requiring Thomas Tinsley to turn over and deliver to said receiver all of the property of said corporation in his possession. On the 21st of February, 1897, thereafter, said receiver demanded of said Tinsley that he turn over to him a list of the notes described in Exhibit A to the application, and a certain book, known as the "minute book" of said corporation, and also $492.52 in cash, alleged to be a trust fund in the possession of said Tinsley, and belonging to said company. It is alleged that the applicant refused to turn over this property to the receiver on the ground that he did not have and never had in his possession certain of said notes, which are set out in said petition, and that the remainder of said notes (as set out in Exhibit B to the petition) and the minute book of said corporation said applicant, Tinsley, claimed to hold and to have the right to hold in possession as collateral security for a certain note of $1,500, for money loaned by him to said corporation prior to the appointment of the receiver. As to the $492.52, applicant alleges that he never held said money in trust, but that one Wisby held the same, and had appropriated it, and that applicant had simply assumed to pay the same to the corporation, and that he did not hold the same in trust, but that it was a debt due by him to the company. He further alleges that he is solvent, and able to respond to any judgment that may be rendered against him in favor of the receiver on account of said property. Applicant alleges that said order requiring him to surrender certain property and pay over said money is without due course of law, and is null and void, and that an adjudication by the court that he was guilty of contempt in refusing and failing to do so, and fining him $100, is null and void. He further contends that said judgment is null and void because John G. Tod, the judge who tried said cause, was at the date thereof related to C. H. Milby and wife, Maggie Milby, within the third degree, and that C. H. and Maggie Milby were stockholders in said corporation. He further says that said judgment and commitment were null and void because the imprisonment is for an uncertain and indefinite period of time, and because he is not able to comply with said order. And he further alleges that the statute fixes the amount of punishment at a fine of $100 and imprisonment not exceeding three days, and that the judgment was excessive, and so null and void. He further charges that the matters set up and alleged do not and could not constitute a contempt, and that his confinement under said order of the court is null and void.

In connection with the petition, the judgment of the court, appointing a receiver and ordering said Thomas Tinsley to turn over the property in his possession to the receiver, William Christian, is attached thereto as an exhibit. Also, the following by exhibits: An application on the part of said receiver, showing to the court his demand upon Tinsley for said property, and his refusal to turn over and surrender the same to him, and praying that he appear at the courthouse, at a time fixed by the court, to show cause why he should not be punished for his misconduct in disobeying said order, as for a contempt of court. Also, the order of the court based thereon, requiring the defendant Thomas Tinsley to show cause before the district court of Harris county why he should not be punished for contempt of court in disobeying the decree of the court of April 3, 1896, etc. And also the judgment of the court on said application, as follows: "Monday, February 8th, 1897. (No. 18,969.) Octavius C. Drew et al. v. Houston Cemetery Company et al. In the Matter of William Christian, as Receiver Herein, Informant, against Thomas Tinsley, Respondent, for Contempt, etc. This 6th day of February, A. D. 1897, came on to be heard in open court the proceedings for contempt of this, the district court of Harris county, Texas, against the respondent, Thomas Tinsley, upon the affidavit of said William Christian, as receiver, for a rule to show cause, etc., and the court's rule to show cause therein, both of February 2, 1897, and the answer of said respondent to such rule, and the replication of said informant to such answer, both this day filed herein; said respondent meantime having had due and reasonable notice in this behalf, and appeared in person and by attorney, and announced ready for the hearing: And the court having heard such affidavit, rule to show cause, answer and replication, and the evidence adduced, both oral and written, in support of the issues so tendered and joined, as well as the argument of counsel, doth find and declare: That the facts set forth in said affidavit and the special plea of said replication are true, as concerns the minute book, notes, and trust fund of four hundred ninety-two dollars and fifty-two cents, as herein specified, and that said respondent, under the evidence adduced, has failed to show cause as required, by the answer aforesaid, good or...