Jones v. McMahan

• Decision Date: 31 January 1868
• Citation: 30 Tex. 719
• Parties: JOHN S. JONES v. T. H. MCMAHAN & GILBERT.
• Court: Texas Supreme Court

30 Tex. 719

JOHN S. JONES

v.T. H. MCMAHAN & GILBERT.

Supreme Court of Texas.

January, 1868.

The constitution of 1866, article IV, section 6, provides, that the district courts and the judges thereof shall have power to issue writs of injunction, certiorari, and all other writs necessary to enforce their own jurisdiction. Pas. Dig. p. 935, sec. 6. The power resides in the judges as well as the court.

The 4th section of the act of 11th May, 1846, to organize the district courts, etc., reads as follows: “The judges of the district courts, and each of them, either in vacation or term time, shall have authority to grant, on petition to them therefor, writs of habeas corpus, mandamus, injunction, sequestration, error, and supersedeas, and all other remedial writs known to the law, returnable according to law: Provided, That no mandamus shall be granted on an ex parte hearing, and any peremptory mandamus granted without notice shall be deemed void: And further provided, That all writs of mandamus, sued out against the heads of any of the departments or bureaus of government, shall be returnable before the district court of the county in which the seat of the government may be.” Pas. Dig. art. 1407, note 528. This section, like the constitution, gives the power to the judge as well as to the court.

Whatever ordinary or extraordinary writ can be issued by a common-law judge or chancellor in those states where the jurisdiction of the officers is separate and distinct, in this state can be issued by the judge.

There is no limitation as to the court to which the judge may order the writ returned, except as to the writs against the heads of departments, which are returnable at the seat of government.

The stay law of 1866, which allowed the defendants in executions to pay judgments by installments (see the law in the statement), impairs the obligation of contracts, and is void. Pas. Dig. notes 56, 61, 147, 168; Pas. Annot. Const. notes 152 to 157, pp. 153 to 158; 31 Tex. 164.

When Texas was annexed to the United States, it not only adopted the constitution of the United States, but the interpretations of the supreme court of that government in reference to laws impairing the obligations of contracts. And as our decisions against the constitution may be brought into review before that court, it is our duty to follow the decisions of that high tribunal.

APPEAL from Galveston. The case was tried before Hon. JOHN R. KINNARD, one of the district judges.

McMahan & Gilbert, having recovered certain judgments and decrees for the foreclosure of mortgages, applied to the clerk of the district court of Galveston county to issue orders of sale. The clerk refused, because of the stay law, which, not being in any digest, is here printed:

“AN ACT regulating the collection of debts.

1. On all judgments rendered prior to the first day of January, 1867, the judgment debtor shall have twelve months thereafter within which to pay to the plaintiff, his agent or attorney, one-fourth part of said judgment and all costs; and that no execution shall issue thereon until the expiration of the time aforesaid, except in like cases and under like circumstances, authorizing the issuance of attachments, in which case execution may issue for the entire amount of said judgment. If within the time aforesaid the said debtor shall pay or cause to be paid the said one-fourth part of said judgment and all costs, then the said debtor shall have twenty-four months from the said first day of January, 1867, within which to pay one-third part of the remainder of said judgment, and that execution shall not issue thereon until the expiration of the time aforesaid, except in like cases and under like circumstances, authorizing the issuance of attachments. If within the time aforesaid the said debtor shall pay or cause to be paid the two installments above specified, then execution shall not issue on such judgment until thirty-six months from the said first day of January, 1867; and that if the said debtor shall pay or cause to be paid, within the time aforesaid, one-half of the remainder due on such judgment, then execution shall not issue thereon until forty-eight months from the said first day of January, 1867, except in like cases and under like circumstances, as above specified: Provided, That if payment shall not be made within the time above specified, and in default of said debtor to make payment of any one of said installments, then execution shall issue for the amount of the installment due, as aforesaid, and all costs: Provided further, That the provisions of this act in relation to the issuance of attachments shall not be so construed as to subject the produce of the debtor's farm to attachment, on being removed to market: And provided further, That the provisions of this section shall not apply to judgments rendered foreclosing mortgages or liens upon real or personal estate.

2. On all judgments rendered after the first day of January, A. D. 1867, except such as are hereinafter mentioned, the judgment debtor shall have twelve months from the date of such judgment within which to pay one-third part thereof, and that no execution shall issue thereon until the expiration of the time aforesaid, except in like cases and under like circumstances, authorizing the issuance of attachments; and except, also, in cases of attachment, sequestration, or injunction, where property or effects may be in the hands of an officer under process, or restrained in the hands of another, by virtue of process duly issued, or by agreement of parties interested therein, in which case execution may issue for the entire amount of said judgment or order of sale of such property. If within the time aforesaid, the said debtor shall pay or cause to be paid the said one-third part of such judgment, then the said debtor shall have twenty-four months from the rendition of such judgment within which to pay one-half of the remainder due thereon, during which time execution shall not issue, except in cases as above provided. If within the time aforesaid the said debtor shall pay or cause to be paid the two installments, as above specified, then the debtor shall have thirty-six months from the rendition of such judgment within which to pay the entire balance due thereon; and in default of the said debtor to make any one of the payments within the time specified therefor, then execution shall issue for the amount of the installment then due: And further provided, That on all judgments hereafter rendered, execution may issue in favor of the officers of court for all costs due thereon: And provided further, That the provisions of this act shall not be so construed as to prohibit sales of real or personal estate, in the settlement of estates of deceased persons, in payment of any mortgage or lien: Provided, The county judge shall not confirm any sale, unless the property sold shall have brought at least three-fourths of its actual value.

3. On all judgments heretofore or hereafter rendered, foreclosing a mortgage or lien upon real or personal estate, the judgment debtor shall have two years from the first day of January, 1867; on all judgments rendered prior to that time, and on all judgments thereafter rendered, two years from the rendition of such judgment within which to pay two-thirds of such judgment; and if payment thereof be made within the time aforesaid, then execution or order of sale shall not issue until twelve months thereafter; and in case of default to make payment of the said two-thirds of such judgment within the time above specified for the first installments, then execution and order of sale shall issue for the entire amount of such judgment, interest and costs due thereon, and sale shall be made, and the proceeds thereof applied to the payment of such judgment liens or mortgages, in the manner now provided by law.

4. In all suits now pending or hereafter instituted upon accounts, bonds, bills, promissory notes, contract, or other obligation in writing, for the payment of money, made, executed, or entered into before the twenty-sixth day of May, 1865, or in the settlement, substitution, liquidation or discharge of any such accounts, contract, or obligation, made or bearing date since the said twenty-sixth day of May, 1865, it shall be competent to prove by parol testimony, in all suits, that the same were given or entered into in the settlement, substitution, or liquidation of an account made or contract entered into prior to that time; and also the debtor shall, in all cases, be permitted to prove, by parol testimony, that the same were, by the agreement or understanding of the parties, to be paid in Confederate currency, and the value thereof at the time the same became due and payable.

5. Nothing herein shall prohibit the issuance of attachments as heretofore provided by law; and all causes of action which have accrued since the twenty-sixth day of May, 1865, and which are not in discharge of causes of action existing prior to that date, shall be subjected to and regulated by the laws in force prior to the second day of March, 1861.

6. It shall not be lawful for any trustee to sell, or cause to be sold (except with the consent of the parties interested), any property or real estate held in trust to secure the payment of the debt or debts therein specified, within two years from the first day of January, 1867. And if the debtor therein shall pay, or cause to be paid, two-thirds of the entire debt or debts secured thereby, within the time aforesaid, then it shall not be lawful for any trustee to sell such trust property until the expiration of twelve months from the time aforesaid; and that if the said debtor shall make default, and fail to make such payment within the two years from the said first day of January, 1867, then it shall be lawful for said trustee to sell the entire trust property, or sufficient thereof to pay the entire debt or debts,...