Ex parte White, A-4941

• Decision Date: 19 January 1955
• Docket Number: No. A-4941,A-4941
• Citation: 154 Tex. 126,274 S.W.2d 542
• Parties: Ex parte H. G. WHITE.
• Court: Texas Supreme Court

Page 542

274 S.W.2d 542

154 Tex. 126

Ex parte H. G. WHITE.

No. A-4941.

Supreme Court of Texas.

Jan. 19, 1955.

Rehearing Denied Feb. 4, 1955.

James H. Martin, Dallas, for relator.

Burt Barr and J. Lee Zumwalt, Dallas, for National Bond & Investment Co.

GARWOOD, Justice.

In this original habeas corpus proceeding we granted the writ and released the relator, H. G. White, on bail from the custody of the sheriff of Dallas County in view of doubts as to whether his commitment for constructive contempt of the District Court of that county was sustained by any evidence. While relief in original proceedings requires that the adjudication of contempt be one that is void, rather than merely erroneous on the law or the facts, we yet review the proof adduced at the hearing and, if it shows as a matter of law (i. e. conclusively establishes) that the contempt charge is not sustained, we treat the adjudication as void. Ex parte Helms, Tex., 259 S.W.2d 184.

The alleged contempt consisted of the failure of relator to turn over to Charlie Davis, Receiver, upon demand of the latter, a Chevrolet automobile, motor number JAM272917, of which the receiver had been appointed to take possession by order of the abovementioned court dated March 29, 1954, in a debt and foreclosure suit against relator by National Bond & Investment Company, as assignee of relator's purchase money note and mortgage of November 18, 1952, running in favor of a concern called R. & S. Motors, assignor of the foreclosure plaintiff and seller of the car to relator.

The original demand of the receiver and failure of the relator to deliver occurred at some date between that of the receivership order abovementioned and the motion for commitment of April 9th following. The original contempt order, providing for a fine and for imprisonment until the automobile should be surrendered, was made on May 7, 1954, but expressly suspended actual commitment for sixty days. Thereafter, in September, 1954, relator was taken into custody, and, following a further hearing, the commitment was by order of September 22nd suspended for an additional thirty days. On October 29, 1954, following a third hearing, relator was actually imprisoned until issuance of our writ. Since the three hearings were in effect but one continuous proceeding, we find it proper to treat them as one, the statement of facts reflecting the evidence as developed in all of them.

The relator admittedly executed the note and mortgage in question, including his warranty of ownership and right to mortgage the automobile, and contemporaneously (November 19, 1952) made a sworn application for a title certificate stating that he was the owner by purchase from R. & S. Motors, receiving under date of December 5, 1952, thereafter, the corresponding certificate from the State Highway Department, which is still subsisting in his name and unchanged. Relator himself asserts, moreover, that he has never sought to transfer or dispose of the title or possession of any such automobile at any time. Indeed, the proof discloses that, after November 19th, installment payments were made to National Bond & Investment Co. on relator's purchase money note and mortgage, although it does not appear that relator himself made them.

But the relator further testifies, and from the very first, that the abovementioned sale, registration and mortgage were fictitious and fraudulent on his part in that he has never received, seen, or intended to buy any automobile, but made his signature and oath as abovementioned by way of an urgently requested personal favor to his uncle, one Noland (N. E.) Stanley, who was the owner and manager of R & S. Motors (relator's abovementioned predecessor in title, seller and mortgagee). Relator swears that Stanley told him he was really selling the car to some third party (who presumably would pay relator's note and eventually get a title from relator). And although R. & S. Motors (Stanley) undoubtedly assigned relator's note and mortgage forthwith to National Bond & Investment Co. for value, the evidence discloses that the latter never saw the automobile. Stanley was not called as a witness, but relator swore without contradiction that he was in the Dallas County jail and, on grounds of self-incrimination, had declained to testify.

The following peculiar facts further appear without dispute:

The records of the State Highway Department reflect an unbroken chain of title of an automobile, as described in relator's note, mortgage and title certificate, from Winders Chevrolet Co., of Columbus, Ohio, to Alexander Rent A Car, Inc., of the same city (May 16, 1951) to R. & S. Motors (November 19, 1952) to relator (November 19, 1952). Part of these documents originated, of course, in Ohio, where the registration laws are evidently similar to our own. The Texas Title number assigned to the car by the State Highway Department was 11226857. As stated, relator, the record holder of this title, disclaims having ever seen or had control of the corresponding automobile.

On the other hand there actually exists-in the name of a Mr. W. G. Swagerty of Mineral Wells and in possession of his son, Eddie, at Brownwood-an automobile of virtually the same description, including the same motor number JAM272917, as that in the abovementioned documents executed or held by the relator. The Highway Department records reflect a title for such an automobile in Mr. Swagerty under the Title Number 13043888, a later number than the 11226857 corresponding to relator's 'title'. The former, however, is a sort of substitute title for an earlier one, No. 10296218, which is earlier than relator's and referred to an altogether different motor number, JAM80745. The Highway Department record history of this curious title shows transfers from Paul Davies Chevrolet, Inc., of Columbus, Ohio, to Alexander Rent A Car, Inc., to R. & S. Motors. The indicated original seller is different from the one in relator's title, but the Alexander concern is the same as that appearing in the corresponding position in relator's title. The indicated date of transfer to Alexander is January 31, 1951 (as against May 16 1951 in the relator's title) and...