Ferguson v. Ferguson

• Court: Texas Court of Appeals
• Writing for the Court: Leslie
• Citation: Ferguson v. Ferguson, 127 S.W.2d 1018 (Tex. App. 1939)
• Decision Date: 28 April 1939
• Docket Number: No. 1997.,1997.
• Petition History: writ dism'd
• Parties: FERGUSON v. FERGUSON et al.

Page 1018

127 S.W.2d 1018

FERGUSON v. FERGUSON et al.

No. 1997.

Court of Civil Appeals of Texas. Eastland.

April 28, 1939.

Original proceeding by Joe Lee Ferguson against A. M. Ferguson and others for a writ of prohibition and for a writ of injunction.

Writs granted.

J. S. Kendall, of Munday, for relator.

Milton J. Baird, of Edinburg, and Calvin Henson, of Haskell, for respondents.

LESLIE, Chief Justice.

On April 4, 1939, Joe Lee Ferguson filed an application in this court seeking a writ of prohibition against the county judge of Haskell County, Texas, and J. F. Lindsey, Special Judge of the county court of that county, and a writ of injunction against A. M. Ferguson, his attorneys, agents and employees to restrain such judge of said court from taking any action or proceeding, the effect of which would be to change or modify the judgment of this court in Ferguson v. Ferguson, 93 S.W.2d 513, and to restrain said A. M. Ferguson, his attorneys, agents, etc., from attempting to procure in said county court, presided over by said special judge, or any other special judge, any judgment, order or proceeding in any way affecting or destroying said judgment by this court.

Said application was duly sworn to and from the contents thereof and relevant documents or records and orders in this court pertaining to this and kindred litigation heretofore disposed of, this court was inclined to grant the prayer of the petition in respect to said writ of prohibition and said injunction, but instead of doing so, this court merely granted a temporary restraining order and set said cause for hearing at 9 o'clock April 7, 1939, and notified said A. M. Ferguson, said Special Judge, and other interested parties, to appear before this court at such later date and show cause, if any existed, why said writs should not issue as prayed for. Thereafter, on April 5, 1939, said respondents appeared before this court in response to such notice and asked for further time in which to study the proceeding and make answer, if any, showing cause why such writs should not be granted. Pursuant to this request this court reset the hearing on the original application for 9 o'clock a. m., April 14, 1939. At that time said A. M. Ferguson and his attorneys and said Lindsey appeared and filed their respective answers herein.

The Hon. J. F. Lindsey disclaims in open court any intention to violate the terms and provisions of any judgment of this court heretofore rendered and states that he desires to conform his acts to the spirit of law and the legal effect of any and all such judgments, thus signifying his obedience to the mandates of this court and his purpose to pursue such course. He is hereby personally exonerated from any costs incident to this proceeding and the order and decree of this court as hereinafter indicated will affect his official acts only and as specified.

We find from the pleadings in the instant case and the testimony offered in support thereof that this application for said relief by Joe Lee Ferguson, relator, is due to the fact that the said A. M. Ferguson has filed in the County Court of Haskell County a written instrument, or purported pleading, termed in one part thereof "Special Report for Chaotic Conditions in the Administration of the Estate [Kate F. Morton, deceased] and Suggestion for Instructions" as to how he should proceed, etc., in the administration of the estate as Temporary Administrator. At another point he designated this pleading as "Special Report and Motion for Interpretation and Instructions." It is also styled "In the Matter of the Estate of Kate F. Morton, deceased. No. 609. In Probate, In the County Court of Haskell County, Texas."

However, the nature of the proceeding in that court can only be known and interpreted by a study of its specific allegations. The instrument is lengthy and has about 196 paragraphs or sections. In the outset, he complains of "a series of conflicting and unenforceable orders, judgments and decrees arising out of an Arbitration Proceeding under Art. 237, Revised Civil Statutes of Texas (1925), originating in the County Probate Court, and including the following": (Many items of litigation are here listed, including cause No. 4380 in the District Court of Haskell County, which was cause No. 1449 on the docket of this court.)

In paragraph 2 of the petition addressed to the Hon. J. F. Lindsey, Special Judge of said County Court, he alleges: "* * * conflicting awards, decisions, decrees, judgments and orders of many courts, which are obviously and manifestly contradictory within themselves and with each other, and are conflicting, unintelligible, void, voidable and confusing when taken together or separately as a rule of procedure for the Statutory Administration of the Estate, and beyond and incapable of physical specific performance by this court [Special County Court] or Administrator."

In paragraph 3 of the petition he alleges "* * * unless such awards, decisions, decrees, judgments and orders herein mentioned be abated, construed or interpreted and brought into agreement with the lawful administration of this estate by this court * * *; and the rights, duties and powers heretofore given this Administrator and existing at this time, be more specifically defined, construed, protected and upheld * * * rights and claims of creditors, etc., and of this Administrator" will be lost.

In paragraph 60 it is alleged: "Each and all the above named orders entered upon and following the filing of the final report, this administrator believed to be erroneous and wrong, and if allowed to stand, would lead to chaos and unconscionable waste of the property of the estate, and were entered by a disqualified judge, not legally considered, seriously modified and altered the Award or Report of the Board of Arbitrators, and in both practical and legal effect destroyed and invalidated any legal effect previously had or held over this estate, if any, its beneficiaries and this Administrator in such capacity."

Section 61 is as follows: "When such awards and multiple orders thereon entered by this court, are compared, they appear obviously conflicting, confusing and contradictory. They accentuate and exemplify the many, gross and manifest errors of fact and law, equity and justice, precedent and principle, contained in the Award and all proceedings thereunder."

Paragraph 62 is as follows: "The order or judgment of the County Court dated September 5, 1933, adopting the award of the Board of Arbitration as the judgment of the Probate Court, recites therein that A. M. Ferguson withdrew his objections thereto and filed his motion to construe and enforce the same. In this connection, this administrator would show that such plea was filed by this administrator under agreement of all parties concerned and interested therein that the illegal and objectionable features of the Award would be construed, reformed, corrected and made to conform to the Arbitration Agreement. The motion filed and referred to in the order is still pending in this cause, unheard unacted upon and undetermined. Such motion should be set down for hearing by this court and acted upon in such way and manner as would carry out such agreement."

It is further alleged in section 113: "The judgment in No. 4380 of the District Court, by its own terms is not final or complete." And, in section 117, he alleges "Hence the judgment in said cause No. 4380 is now not only an open judgment as distinguished from a final one, but is now beyond physical performance," etc.

Additional facts making up the background of this proceeding and reflecting its nature and purpose may be more fully gathered from the extensive litigation between Alex M. Ferguson and Joe Lee Ferguson, beginning more than ten years ago and involving the alleged claims of each to and concerning an estate which their deceased sister, Kate F. Morton, endeavored to leave them. The following is a partial list in chronological order of such suits, appeals, etc.: Ferguson v. Ferguson, Tex. Civ.App., 11 S.W.2d 214, Granted and Affirmed Tex.Com.App., 23 S.W.2d 673; Morton's Estate v. Ferguson, Tex.Civ. App., 45 S.W.2d 419; Ferguson Seed Farms, Inc. v. Ferguson, Tex.Civ.App., 52 S.W.2d 354; City of Haskell v. Ferguson, Tex.Civ.App., 66 S.W.2d 491; Ferguson v. Ferguson, Tex.Civ.App., 66 S.W. 2d 755; Ferguson v. Ferguson, Tex.Civ. App., 69 S.W.2d 592; Ferguson v. Mauzey et al., Tex.Civ.App., 69 S.W.2d 597; Ferguson v. Ferguson, Tex.Civ.App., 75 S.W. 2d 275, Refused; Ferguson v. Ferguson, Tex.Civ.App., 84 S.W.2d 836, Dismissed; Ferguson v. Ferguson, Tex.Civ.App., 93 S.W.2d 513, Dismissed; Ferguson v. Chapman, Tex.Civ.App., 94 S.W.2d...