Isbill v. Stovall

• Decision Date: 21 February 1936
• Docket Number: No. 1630.,1630.
• Citation: 92 S.W.2d 1067
• Parties: ISBILL, County Superintendent, et al. v. STOVALL.
• Court: Texas Court of Appeals

92 S.W.2d 1067

ISBILL, County Superintendent, et al. v. STOVALL.

No. 1630.

Court of Civil Appeals of Texas. Eastland.

February 21, 1936.

Rehearing Denied March 13, 1936.

Appeal from District Court, Jones County; W. R. Chapman, Judge.

Suit by Mrs. Lova Mae Stovall against Earl Isbill, as County Superintendent, and others, wherein W. W. Matlock and another intervened as rural trustees of the Nugent Common School District and joined with the defendants in filing a cross-action. From a judgment for the plaintiff, the defendants and interveners appeal.

Judgment partly modified, and partly reversed and remanded.

Smith & Smith and Gilbert Smith, all of Anson, for appellants.

Coombes & Andrews, of Stamford, for appellee.

FUNDERBURK, Justice.

This is a suit for mandamus and injunction brought by Mrs. Lova Mae Stovall against Earl Isbill, county superintendent, and Mrs. Frank Heflin, joined by her husband, Frank Heflin. W. W. Matlock and John W. Harber, "as rural trustees of Nugent Common School District No. 25 of Jones County and in such capacity as such trustees," intervened, and in addition to a general demurrer and general and special denials asserted a cross-action for injunction "restraining the plaintiff from further imposing herself upon the Nugent Common School District and from further attempting to teach in said school," etc. It was also prayed that Mrs. Heflin be declared and adjudged to be the duly elected teacher of the Nugent school. The case was tried without a jury and final judgment rendered in favor of the plaintiff and against the defendant and interveners. The defendant and interveners have appealed.

The case was advanced in this court upon the assumption that the judgment appealed from was interlocutory, including the award of a temporary injunction. A study of the record, however, assures us that the trial involved a determination of all issues in the case and that the judgment was final. A bill of exception showing that the trial of the case and the rendition of judgment took place in vacation, in chambers, in the city of Abilene, in Taylor county, was qualified by the trial judge to show that "defendants and interveners answered to the merits without reservation and asked for affirmative relief, and, upon the issues joined, evidence was introduced by both sides and final judgment was rendered in this cause." Also, in the judge's findings of fact upon request duly filed, it is recited that after granting the prayer for intervention of Matlock and Harber, trustees of the Nugent Common School District, "the interveners joined with the defendants Earl Isbill as County Superintendent and Mrs. Frank Heflin and her husband Frank Heflin in an answer and cross-action; and joined issue on the merits and presented their general demurrer, which was overruled by the court and they excepted and in said cross-action they asked for affirmative relief, injunction, etc., and invoked the jurisdiction of the court upon such cross-action and no reservations were made in the original answer and cross-action for trial on the merits. No objection was made by either plaintiff, defendants or interveners to a trial before me on the merits and a full hearing was had before the court and oral and documentary evidence introduced with all formalities of a regular trial and that as a consequence thereof the trial was by consent of the parties under Art.1915, of R.S.1925." (Italics ours.) The judge's conclusion of law applicable to the above was: "I conclude as a matter of law that as judge of the district court of Jones County, Texas, the parties to this suit having consented I have authority in vacation to exercise all the powers, make all orders and perform all acts as fully as in term time and by such consent could legally try any civil case, except divorce cases, without a jury, and enter final judgment; and in accordance with such conclusion, I did try this case and enter final judgment under Art.1915, of R.S.1925." (Italics ours). The judgment recites that upon the overruling of their general exception, said "defendants and interveners then and there in open court excepted." (Italics ours.) Also, to the judgment they "then and there in open court excepted and in open court gave notice of appeal," etc. (Italics ours.)

It is apparent from appellants' assignments of error Nos. 1 to 6, inclusive, that they have misconceived the nature of the proceedings culminating in the judgment from which they prosecute this appeal. The gist of the complaint they make is that the court did not limit the trial and judgment to mandamus and injunction. It seems clear to us that there was nothing else involved in the suit but mandamus and injunction. The judgment determining the issues of mandamus and injunction determined all issues joined by the pleadings, and left nothing to be thereafter litigated.

However, assignment of error No. 1 is that, "The trial court committed an error of law in rendering, in vacation, at Abilene, Texas, a judgment in this cause that was then pending in the District Court of Jones County, Texas," etc. Assignment of error No. 6 alleged, "The trial court was without jurisdiction to enter the judgment," the reason therein stated being that "the district court of Jones County, Texas, was in vacation and was only acting in chambers at Abilene, Texas, in Taylor County, and a different county from which the suit was pending and was not acting as the district court of Jones County, Texas to the extent that he had jurisdiction to try a cause of action upon its merits," etc. The reasons are not an essential part of an assignment of error. Panhandle & S. F. Ry. Co. v. Burt (Tex.Civ.App.) 71 S.W.(2d) 390, and authorities therein cited. Said assignments of error, therefore, raise a question of the jurisdiction of the court, or judge, to try a civil suit pending in the district court of Jones county and render a final judgment therein, while sitting in a place outside of Jones county.

An approved definition of a "court" includes as an element thereof the place or places of its functioning. "A court is an agency of the sovereign created by it directly or indirectly under its authority, consisting of one or more officers, established and maintained for the purpose of hearing and determining issues of law and fact regarding legal rights and alleged violations thereof, and of applying the sanctions of the law, authorized to exercise its powers in due course of law at times and places previously determined by lawful authority." (Italics ours.) Townes Texas Pleading, p. 7. "It is a fundamental principle," says the same authority, "that common law courts can exercise judicial functions only at such times and places as may be fixed by law, and that judges can enter no orders in vacation except such as are expressly authorized by law." Id., p. 11. "A judge of the district court in this state has no power to adjudicate the rights of litigants except at the time and places prescribed by law for holding courts, unless the authority is conferred by statute." (Italics ours.) Lyons-Thomas Hardware Co. v. Perry Stove Mfg. Co., 88 Tex. 468, 486, 27 S.W. 100, 109. Again, it has been said: "`All courts shall be open.' * * * And hence it is that time, and place, and terms, are prescribed for its sessions by law. And a court cannot lawfully hold its sitting at any other time or place." (Italics ours.) Hunton v. Nichols, 55 Tex. 217.

The Constitution itself fixes the place of holding regular terms of the district court at the county seat of the county. Const. art. 5, § 7. By provision of the Legislature, "All terms of the district * * * court shall be held at the county seat." R.S.1925, art. 1602. Under express authority of the Constitution, art. 9, § 2, statutory provision has been made for the location and removal of county seats (R.S.1925, arts. 1593 to 1601, as amended (Vernon's Ann.Civ.St. arts. 1593 to 1601), thereby giving rise to rights in the public as to the place in which governmental agencies, including district courts, shall perform their functions. Turner v. Tucker, 113 Tex. 434, 258 S.W. 149, 150. After enumerating statutory provisions which by construction were held not to prohibit a district court in a county comprising two judicial districts from sitting over in the other district but at the county seat, the Supreme Court in Wheeler v. Wheeler, 76 Tex. 489, 13 S.W. 305, 307, said: "None of the other laws have any regard to boundaries except those of the county itself, but, on the other hand, they are all unambiguous and emphatic in the requirement that all district courts for the county shall be held in the county court house, at one place established for that purpose by the commissioners' court." (Italics ours.)

In Turner v. Tucker, supra, in condemning as unconstitutional a statute creating a court having district court jurisdiction to sit at Texarkana, not the county seat, upon the ground that said act was not only contrary to article 5, section 7, of the Constitution, but article 9, § 2, as well, declared that it was the purpose manifested by a change in said article 5, § 7, "to make entirely plain the intent that the business of the district court should not be disposed of elsewhere than at the county seat."

We next consider whether R.S.1925, art. 1915, is effective to empower the judge or court to try the case and render final judgment while sitting in Taylor county. That provision is: "Judges of the district courts may in vacation, by consent of the parties, exercise all powers, make all orders, and perform all acts, as fully as in term time, and may, by consent of the parties, try any civil case, except divorce cases, without a jury and enter final judgment. All such proceedings shall be conducted under the same rules as if done in term time; and the right of appeals and writ of error shall apply as if the acts had been done in term time." (Italics ours.) This is the authority, if any, by which...