Glenn v. Hollums, 4313.

• Decision Date: 18 June 1934
• Docket Number: No. 4313.,4313.
• Citation: 73 S.W.2d 1068
• Parties: GLENN v. HOLLUMS et ux.
• Court: Texas Court of Appeals

73 S.W.2d 1068

GLENN v. HOLLUMS et ux.

No. 4313.

Court of Civil Appeals of Texas. Amarillo.

June 18, 1934.

Appeal from District Court, Floyd County; Kenneth Bain, Judge.

Suit by John A. Hollums and his wife against H. C. Glenn, receiver of the Temple Trust Company, and another. From a judgment, named defendant appeals.

Reversed, and cause dismissed.

Critz & Woodward, of Coleman, and John B. Daniel, of Temple, for appellant.

H. D. Payne, of Floydada, for appellees.

HALL, Chief Justice.

Hollums and wife, Mrs. Maude E. Hollums, instituted this suit under Senate Bill No. 3, Acts of the 43d Legislature (Second Called Sess.) chapter 16, commonly known as the Moratorium Act (Vernon's Ann. Civ. St. art. 3804 note). They made E. S. Randerson, sheriff of Floyd county, and H. C. Glenn, receiver of the Temple Trust Company, parties defendant.

The purpose of the suit was to restrain the execution of a judgment rendered against the plaintiffs in the district court of Bell county November 28, 1933, in favor of Glenn as receiver of the Trust Company, and against John A. Hollums for the sum of $3,378.30, with a foreclosure of a deed of trust lien against Hollums and wife on two town lots in Floydada, Tex. The judgment awarded an order of sale. The plaintiffs filed their petition on March 6, 1934, five days after the Moratorium Act became effective. They alleged that Glenn had been appointed receiver of the Trust Company by the federal court; that as receiver he had sued upon a series of notes and recovered judgment against John A. Hollums for over $3,000 and a foreclosure upon the property as to both plaintiffs; that an appeal had been taken from said Bell county judgment without a supersedeas bond; that Glenn had taken out an order of sale, which was levied upon said lots and threatened to sell the same on March 6th; and they prayed that the court grant a restraining order enjoining the sale until February 1, 1935.

On said March 6th the petition was presented to the district judge of Floyd county, who made an order enjoining the sale and setting the petition down for a hearing on March 14th. The order recites that no bond was required under the law and none was required by the order. Injunction was duly issued and served.

The receiver, Glenn, filed his motion on March 23, 1934, to dissolve the injunction.

The petition and motion were heard in vacation on March 23d, and the district judge entered an order denying the motion to dissolve and temporarily enjoining Glenn as receiver, and Randerson as sheriff, from executing the order of sale until the 1st day of February, 1935, and further ordered that the defendants be restrained from selling said property under any other order of sale which might be issued upon said judgment until after said last-named date. The district judge further ordered that John A. Hollums and wife pay to the clerk of the district court the sum of $27.50 per month during the effective period of the order, payments to begin on the 1st day of April, 1934, and to be made on the 1st of each succeeding month thereafter. It further ordered the district clerk to apply the amounts paid to the payment of taxes due for 1928 and succeeding years and after the payment of taxes, the balance, if any, to be applied to insurance, interest, and principal of the Bell county judgment in the order named. It further provided that default in making any of said payments would ipso facto dissolve the injunction.

The receiver, Glenn, introduced the following evidence: (1) Decree of the federal court entered in the case of Hubert v. Temple Trust Company on March 10, 1933, appointing him receiver of the company and defining his duties; (2) judgment of the district court of Bell county in favor of the receiver against Hollums for the sum of $3,378.30, with interest from November 8, 1933, at 7 per cent. and decreeing a foreclosure against Hollums and wife of the deed of trust lien against both defendants. The judgment awards order of sale and execution as required by the statutes. The statement of facts contains three stipulations to the effect that no permission had been given by the federal court at Waco or by the district court of Bell county for the plaintiff in this suit to file and prosecute the same, that the order of sale to be enjoined issued out of the district court of Bell county based on the judgment rendered in favor of Glenn against the defendants, and that the reasonable rent for all of the property in question was $27.50 per month. Hollums testified that the property was worth from $10,000 to $15,000 in normal times. Mrs. Hollums testified that it was worth at least $10,000. The only description given of the property showed that it consisted of two 50-foot lots which contained a residence and a greenhouse. Hollums did not know whether the state and county taxes had been paid for the years 1928 to 1933, inclusive, stated that he did not know about values. The testimony further shows that the judgment rendered in the district court of Bell county against the Hollums had been appealed and was pending in the Court of Appeals at the time of the trial of this case; that the Hollums had a plea of usury which, if sustained, would cut the judgment to about $1,500. It further appears that they denied the validity of the lien which had been foreclosed in favor of the trust company in the district court of Bell county.

The Moratorium Act under which the Hollums are endeavoring to stay the execution of the judgment against them is held to be in derogation of the common law, and it must be conceded that it is contrary to several provisions of the State and National Constitutions, especially article 1, § 16, of the Constitution of Texas, which prohibits the enactment of retroactive laws and further prohibits the passing of laws which impair the obligations of contracts, and also of article 1, § 19, of the Constitution, which provides that no citizen shall be deprived of his property, privileges, or immunities except by due course of the law of the land. Its validity, if sustained, must be upon the ground that moratorium laws generally are upheld, i. e., because of the financial distress and unusual conditions which exist throughout the nation, during the present period. All rights in this suit which the Hollums have, if any, exist solely and alone in virtue of the statute, and, as said by Cureton, C. J., in Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084, 1087: "The general rule is that where the cause of action and remedy for its enforcement are derived not from the common law but from the statute, the statutory provisions are mandatory and exclusive, and must be complied with in all respects or the action is not maintainable. * * * The rule is well settled in most jurisdictions and in this state `that there is no presumption of jurisdiction where a court, although it is one of general jurisdiction, exercises special statutory powers in a special statutory manner or otherwise than according to the course of the common law, since under such circumstances ...