Life Ins. Co. of Virginia v. Sanders

• Decision Date: 01 June 1933
• Docket Number: No. 2888.,2888.
• Citation: 62 S.W.2d 348
• Parties: LIFE INS. CO. OF VIRGINIA v. SANDERS et al.
• Court: Texas Court of Appeals

62 S.W.2d 348

LIFE INS. CO. OF VIRGINIA v. SANDERS et al.

No. 2888.

Court of Civil Appeals of Texas. El Paso.

June 1, 1933.

Rehearing Denied July 19, 1933.

Original application by the Life Insurance Company of Virginia for writs of prohibition, injunction, and mandamus against R. C. Sanders and others.

Writs granted.

George T. Burgess, of Dallas, for relator.

Austin F. Anderson and Slay & Simon, all of Fort Worth, for respondents.

PELPHREY, Chief Justice.

On December 13, 1927, R. C. Sanders and wife executed a promissory note and a deed of trust upon certain property located in Ryan Place addition to the city of Fort Worth, Tex. On February 27, 1932, relator recovered a judgment in the district court of Dallas county for the debt evidenced by the note and deed of trust and foreclosure of the lien upon the property.

That judgment was affirmed by this court February 2, 1933 , and no writ of error was applied for.

On April 7, 1933, relator had an order of sale issued and placed same in the hands of the sheriff of Tarrant county for execution. The sheriff advertised the property for sale upon the May sale day, to wit, May 2, 1933.

On that day Sanders and wife filed their petition in the Seventeenth district court of Tarrant county seeking to enjoin the sheriff from selling the property for a period of 180 days from that date. Upon the same day that court entered the following order: "In chambers this 2nd day of May, A. D. 1933, the foregoing petition for injunction being considered, it is ordered that the Clerk of the District Court of Tarrant County, Texas, issue a writ of injunction in all things as prayed for in said petition, returnable to the 101st District Court of Dallas County."

The writ was then issued and served upon the sheriff on that date.

May 12, 1933, relator filed in this court an application for writs of prohibition, injunction, and mandamus.

This court, on May 15th, issued notice to respondents to appear on May 25th and show cause why the writs, as prayed for, should not issue.

On that day respondents filed an answer questioning the jurisdiction of this court to consider the application, demurred generally and specially to the petition, and further answered by general and special denial.

The first question arising is that of the power of this court to issue the writs prayed for under facts such as we have before us. This court has power to issue writs of mandamus and all other writs necessary to enforce its jurisdiction, article 1823, Revised Statutes, and has that power only for such purpose.

It follows, therefore, that we have no power to issue the writs here prayed for unless the act here complained of is an interference with our jurisdiction.

Was the court's action in enjoining the sheriff from selling the property under the judgment affirmed an interference with the jurisdiction of this court?

Our Supreme Court in the case of Wells v. Littlefield, 62 Tex. 28, had the following to say relative to its power to issue writs for the purpose of enforcing its jurisdiction: "So soon as the jurisdiction attaches under an appeal or writ of error, this court has full control of the cause, and can make such orders concerning it as may be necessary to preserve the rights of the parties and enforce its mandates. This jurisdiction continues until the case, as made by the appeal or writ of error, is fully determined by this court and its judgment is completely executed by the court below. If the judgment below is affirmed, or reversed and rendered or reformed, this court can see that the party in whose favor its decision has been given has the benefit of all proceedings below necessary to enforce its judgment."

The same court in Milam County Oil & Mill Co. v. Bass, 106 Tex. 260, 163 S. W. 577, 578, used this language: "A valid judgment should be effective to secure the benefits that it decrees; and its active office therefore continues for the full accomplishment of that result. Any interference with its enforcement or the due exercise of rights which it establishes would amount to a violation of the jurisdiction of the court as a hindrance to its power to put the judgment into effect and preserve its operative force."

The power of this court is identical with the power of the Supreme Court in the matter of issuing writs to enforce its jurisdiction.

It follows, therefore, that the enjoining of the sale was an interference with the complete execution of our judgment by the court below, and the question should be answered in the affirmative. See, also, the following cases as to the power of this Court to issue writs to prevent interference with its jurisdiction: Millikin v. Jeffrey, 117 Tex. 134, 299 S. W. 393; Halbrook et al. v. Quinn et al. (Tex. Civ. App.) 286 S. W. 954; Cattlemen's Trust Co. v. Willis et al. (Tex. Civ. App.) 179 S. W. 1115; Long v. Martin (Tex. Civ. App.) 260 S. W. 327 (dismissed for want of jurisdiction, 114 Tex. 581, 278 S. W. 1115); Williams v. Foster (Tex. Civ. App.) 233 S. W. 120; Hovey v. Shepherd, 105 Tex. 237, 147 S. W. 224; Birchfield v. Bourland (Tex. Civ. App.) 187 S. W. 422, 425; Farrell v. Young et al. (Tex. Civ. App.) 23 S. W.(2d) 468; Bell v. Young (Tex. Civ. App.) 20 S.W.(2d) 135.

The contentions of respondents that we have no jurisdiction to issue the writs prayed for because relator has an adequate remedy at law and because writs of prohibition cannot be used as a means of testing the validity of a statute are, in our opinion, untenable. In Wells v. Littlefield, supra, the first contention was made and overruled by the Supreme Court, in the following language: "If the ground taken by respondent's counsel, that we cannot issue the writ because the relator has his remedy by appeal, is to prevail, then this court will be without power to enforce its judgments in any cause." See, also, Bell v. Young, supra.

We have no quarrel with the general principle embodied in the second contention, but in a case such as this, where the act which interferes with our jurisdiction is done in pursuance of a statute passed after our judgment was rendered, and the party in whose favor our judgment was rendered complains of such action to us, contending that the interference was based upon an invalid law, it presents a case where we are obliged to decide the validity of such statute. In other words, if the statute under which the Tarrant county district court enjoined the sale of the property here involved is a valid one, then we can grant no relief to relator, while if, on the other hand, the act is invalid, then there has been an unlawful interference with our jurisdiction, and relator should have the writs issued. It appears from the record before us the Tarrant county district court enjoined the sale solely by reasons of the provisions of House Bill No. 231, passed by the present session of the Legislature, and which became effective May 1, 1933 (chapter 102 [Vernon's Ann. Civ. St. art. 2218b]).

We think it clear from the act itself that court did not have the power to grant the injunction, the act expressly limiting the granting of the relief provided for therein to the court or judge having jurisdiction of the subject-matter.

It appears, however, that the injunction was made returnable to the 101st district court of Dallas county, the court where the original judgment was rendered, and that the petition of Sanders and wife is now on file in that court.

In this condition of the record, the 101st district court, by virtue of the provisions of the Stay Act, has the power to issue further orders staying the carrying out of the judgment. We therefore must pass upon the validity of the act involved.

It (section 1) provides that: "In all suits or causes of action which are pending in any trial court exercising jurisdiction in this State on the effective date of this Act, and in all suits or causes of actions which may be filed within one hundred and eighty (180) days from and after the effective date of this Act and in which a judgment for the recovery of real property sought to be recovered or wherein a recovery of real property is sought for a failure or omission to pay any indebtedness due thereon, or to foreclose any lien or liens thereon, the defendant shall have the right to a postponement or continuance thereof as herein provided and a stay of orders of sales or executions by complying with the conditions as hereinafter set forth, to-wit."

The conditions prescribed are that he shall file a sworn statement showing (1) that he is unable to pay the indebtedness, and that, if sold, the property would probably sell for less than either its reasonable market value or its intrinsic value; (2) that the lien sought to be foreclosed was not procured to secure indebtedness for money or property procured by misrepresentation, fraud, defalcation, or embezzlement; (3) that the rendition of a judgment as prayed for would result in an unfair, unjust, and inequitable financial injury to him; (4) that the property is not being wasted, ill treated, mismanaged, or destroyed, and is in substantially as good condition as when the lien was executed; (5) that he has not dissipated the property or the rents and revenues therefrom; (6) that he is not in arrears in payment of taxes for more than four (4) years since February 1, 1922, on the property involved in the suit; and (7) that he consents to the appointment of a receiver to collect all rents and revenues from the property, and that they shall either be applied to discharge the indebtedness or deposited in the registry of the court to await the final disposition of the case as the judge may direct.

The act further provides for a hearing upon the motion by the judge or court before whom the suit or cause of action is pending, and authorizes extensions from time to time, but in no event beyond May 1, 1934.

It further directs the court, in passing upon the question of postponement, to consider the financial condition of the...