Halbrook v. Quinn

• Decision Date: 05 July 1924
• Docket Number: (No. 2282.)
• Citation: 286 S.W. 954
• Parties: HALBROOK et al. v. QUINN et al.
• Court: Texas Court of Appeals

Page 954

286 S.W. 954

HALBROOK et al. v. QUINN et al.

(No. 2282.)

Court of Civil Appeals of Texas. Amarillo.

July 5, 1924.

Certified to Supreme Court October 8, 1924.

Rehearing Denied October 6, 1926.

Application for writ of prohibition by J. K. Quinn and others against Thad Halbrook and others. Writ issued.

Certified questions dismissed by Supreme Court, 285 S. W. 1079.

J. Ross Bell, of Paducah, for plaintiffs.

A. J. Smith, of Haskell, for defendants.

BOYCE, J.

This is an application by J. K. Quinn, in the above styled and numbered cause, for writ of prohibition, to prevent interference with the execution of the judgment of this court heretofore entered in such cause. The facts are that on November 7, 1922, J. K. Quinn, in cause No. 8 on the docket of the county court of King county, recovered judgment against Thad Halbrook, John H. Davis, Jr., Charley Pierson, Charles P. Bowman, and H. B. Parks. Thereafter in March, 1923, the defendants filed petition and bond in writ of error, citation being served in June, 1923. No transcript of the record was filed, however, within the time prescribed by law, and on February 6, 1924, the judgment was affirmed by this court on certificate on motion made by the defendant in error Quinn. Thereafter the defendants above mentioned filed suit No. 12 in the county court of King county, against Quinn, to set aside and cancel said judgment and to enjoin the levy of an execution issued thereon. It was alleged by the petitioners in said suit No. 12 that no service of citation had been had upon them as defendants in cause No. 8, that they had made no appearance therein, and that said judgment was void; also that the judgment was procured by fraud, in that the case had been taken up and judgment rendered in the absence of defendant's attorney, and in violation of an agreement with plaintiff's attorney that the defendant's attorney should be notified when said cause would be called for trial. It was further alleged that the defendants did not know of the rendition of said judgment until after the expiration of the term of court at which it was rendered, and that they had a good defense. Quinn answered in said cause No. 12. The case was tried and judgment rendered, setting aside the judgment in cause No. 8, except as to defendant Halbrook, from which judgment Quinn gave notice of appeal. We are not informed whether the appeal has been perfected.

When the judgment in cause No. 8 was affirmed by this court on certificate, the judgment then became that of this court (Cattlemen's Trust Co. v. Willis [Tex. Civ. App.] 179 S. W. 1117; Wells v. Littlefield, 62 Tex. 28), and this court has the power, by writ of prohibition and other appropriate writs, to prevent interference with its execution. Hovey v. Shepherd, 105 Tex. 237, 147 S. W. 224; Long v. Martin (Tex. Civ. App.) 260 S. W. 327; Milam County Oil Mill v. Bass, 106 Tex. 260, 163 S. W. 577; Cattlemen's Trust Co. v. Willis (Tex. Civ. App.) 179 S. W. 1117. These authorities also make it plain that a suit to set aside the judgment of the appellate court and enjoin its execution may be a violation of jurisdiction of the appellate court. The power of the trial courts of this state in a proper case and on proper procedure to annul a judgment rendered by such court at a former term, is well settled. One of the grounds on which a court will grant such relief is that the judgment was fraudulently procured, in the absence of the defendant, through no fault of his. Unless the judgment is void, and there is now no such contention in this case, relief against it may be granted only by the court in which it was rendered in an independent suit brought in such court for such relief. Buchanan v. Bilger, 64 Tex. 593; Bender v. Damon, 72 Tex. 92, 9 S. W. 747; Gross v. McClaran, 8 Tex. 341. Such a suit, while not strictly speaking a bill of review, is largely of the same nature. There is some uncertainty as to the proper procedure to procure relief of this character, in case the judgment is that of the appellate court. In some cases it is said that a bill of review cannot be entertained by the lower court without permission from the appellate tribunal, whose judgment is attacked. Southard v. Russell, 16 How. 547, 570, 14 L. Ed. 1062; Ryerson v. Elderd, 18 Mich. 490; Kimberly v. Arms (C. C.) 40 Fed. 548; Providence Rubber Co. v. Charles Goodyear, 9 Wall. (76 U. S.) 805, 19 L. Ed. 828; Stand. Enc. of Proc. vol. 4, pp. 428 and 433. To the contrary, see Schaefer v. Wunderle, 154 Ill. 577, 39 N. E. 623, and authorities cited. It is said in 4 Stand. Enc. of Proc. p. 433, that:

"There can never be any review or reversal of an appealed case by the lower court, except on leave of the higher court, and the appellate court has power to allow its own decree to be reviewed in the lower court on newly discovered evidence. The appellate court's leave should be obtained by petition, supported by proper affidavit, setting forth the newly discovered evidence and showing due diligence. On application to it the appellate court has full power to pass on the questions of materiality and due diligence, though such determination may be granted by it to the lower court."

The Supreme Court of the United States said in the case of Southard v. Russell, supra:

"Nor will a bill of review lie in the case of newly discovered evidence after the publication, or decree below, where a decision has taken place on an appeal, unless the right is reserved in the decree of the appellate court, or permission be given on an application to that court directly for the purpose. This appears to be the practice of the Court of Chancery and House of Lords, in England, and we think it founded in principles essential to the proper administration of the law, and to a reasonable termination of litigation between parties in chancery suits."

This does not seem, however, to have been the practice in this state. H. E. & W. T. Ry. Co. v. Cavanaugh (Tex. Civ. App.) 194 S. W. 642; First State Bank & Trust Co. v. Overshiner (Tex. Civ. App.) 198 S. W. 979; State ex rel. Bostick v. Stark (Tex. Civ. App.) 203 S. W. 371; Ellis v. Harrison, 24 Tex. Civ. App. 13, 56 S. W. 592, 57 S. W. 986. Some of the decisions last cited might warrant the conclusion that the trial courts have the indiscriminate jurisdiction and power to entertain a suit to vacate the judgment of the appellate court. If such be the law the appellate court could never prohibit by extraordinary writ the maintenance of such a suit, the only remedy for the correction of...