Ex Parte Westbrook

• Decision Date: 17 July 1935
• Docket Number: No. 1880-6403.,1880-6403.
• Citation: 84 S.W.2d 700
• Parties: Ex parte WESTBROOK.
• Court: Texas Supreme Court

84 S.W.2d 700

Ex parte WESTBROOK.

No. 1880-6403.

Commission of Appeals of Texas, Section A.

July 17, 1935.

Habeas corpus proceeding on the petition of T. H. Westbrook, relator.

Relator remanded to the custody of the sheriff of Hamilton county to await further orders of the county court of that county.

Arthur R. Eidson, of Hamilton, and Lovett & Lovett, of Corsicana, for relator.

GERMAN, Commissioner.

This is a habeas corpus proceeding brought by T. H. Westbrook, who was on December 31, 1932, declared to be in contempt of court by the Honorable P. M. Rice, judge of the county court of Hamilton county, Tex. Temporary writ was issued by Associate Justice Greenwood on January 24, 1933, since which time relator has been released from custody of the sheriff on bond. Relator was adjudged to be in contempt of court because of willful disobedience of a writ of injunction issued out of the county court of Hamilton county on September 17, 1932, and subsequent orders of that court. A concise statement of the material facts, as reflected by various orders of the court, supplemented by findings of fact incorporated in the judgment, will indicate a proper order to be entered by this court.

The relator was, prior to September 17, 1932, the secretary of the Bankers Life & Accident Association of the Citizens Mutual Life & Accident Association of Texas, a corporation, and, as such secretary, was, according to his own admission, "in active charge of the operation of said Insurance Association." Said corporation issued policies of insurance payable on the assessment plan. It will be called the association.

It is undisputed that prior to June 21, 1932, this association had issued to John Franklin Walker a certificate of insurance payable by assessments upon the members of the association belonging to the group of which Walker was a member, said policy being payable to O. C. Walker. John Franklin Walker died June 21, 1932, and due proof of his death was promptly made. The claim of O. C. Walker, beneficiary under the policy, was duly approved. Assessments upon members of the association belonging to the group of which John Franklin Walker was a member were duly made by the relator as secretary of the association. By virtue of said assessments the sum of $400 was paid to relator as secretary, said assessments being paid early in the month of September, 1932, and prior to September 17, 1932. For some reason, not clearly disclosed by the record, the said sum of $400 was not paid to O. C. Walker, and on September 17, 1932, O. C. Walker filed suit in the county court of Hamilton county against the association, alleging that relator was its secretary, and alleging facts showing the collection of the sum of four or five hundred dollars for the benefit of the plaintiff. He further alleged that said sum of money "constitutes and is a trust fund in the hands of defendant for the benefit of plaintiff, and cannot and should not be used for any other purpose, but should be turned over to plaintiff." Plaintiff further alleged that the association was in a precarious financial condition, and asked for an injunction to prevent it from making any disposition of the funds collected by it for plaintiff's benefit and held by it in trust, other than to pay the same into the registry of the court for the benefit of plaintiff. Upon proper affidavit and bond, a writ of injunction was issued on September 17, 1932, by the county court of Hamilton county directed to the defendant Bankers Life & Accident Association of the Citizens Mutual Life & Accident Association of Texas; the mandatory provisions of said writ being as follows: "Therefore, you and your officers and agents are hereby directed and enjoined to refrain from doing any of the acts forbidden of by you by the above order, and are commanded and required to keep intact the said fund referred to in said order until otherwise directed by the order of this court or the judge thereof."

This injunction was served upon relator, as secretary of the association, on September 17, 1932. On October 18, 1932, the cause of O. C. Walker against the association was regularly tried in the county court of Hamilton county and judgment was rendered in favor of the plaintiff for $400. The court made the following finding in the judgment: "* * * Which amount, it is found by the court has been collected by the defendant and its secretary prior to Sept. 17, 1932, and was collected by the said defendant and its said secretary from the other members of said association for the use and benefit of plaintiff and as a trust fund belonging to plaintiff, and to be paid to the same; having been assessed by the defendant and its officers on the different members of the association for the use and benefit of plaintiff and to pay his said claim, and to be turned over and delivered to plaintiff as his money and in satisfaction of his claim."

There was a further finding to the effect "that the defendant and the said secretary had and held said amount at the time the injunction hereinafter mentioned was served upon the defendant by...