Little v. Morris

• Decision Date: 01 January 1853
• Citation: 10 Tex. 263
• Parties: LITTLE v. MORRIS.
• Court: Texas Supreme Court

10 Tex. 263

LITTLE

v.MORRIS.

Supreme Court of Texas.

1853.

A writ of error does not lie immediately from an order quashing a writ of sequestration in an action of trespass to try title, and ordering a restoration of the property to the defendant in the suit and for costs, the same being an interlocutory order.

A mandamus is not the appropriate remedy to obtain a revision by the Supreme Court of the action of the District Court in a matter involving the exercise of judgment.

Error from Rusk. The plaintiff in error brought his action of trespass to try title against the defendant in error, who was in possession, and, in aid thereof, obtained a writ of sequestration, under the provision of article 2864 of the Digest. The defendant failing to give bond, as provided by article 2869, was dispossessed and the plaintiff put in possession of the premises by virtue of the writ of sequestration. When the cause came on for trial the defendant moved the court to quash the writ of sequestration. The court sustained the motion, and ordered the possession of the premises to be restored to the defendant, and awarded costs against the plaintiff. The jury not agreeing upon a verdict, there was a mistrial, and the cause was continued. The plaintiff brought a writ of error to revise the judgment, quashing the writ of sequestration and awarding the possession and costs in favor of the defendant. He also petitioned this court for a mandamus to compel the District Court to reinstate the sequestration and annul the order for the restoration of the possession of the premises to the defendant.

L. T. Wigfall, for plaintiff in error. I. The 1st question proposed is, is the judgment quashing the sequestration and award of execution to dispossess Little and for cost of finality sufficient to support a writ of error. In support of the affirmative, it is urged that the judgment in question possesses all the essentials of a final judgment. There is a distinct proceeding by motion unknown to the petition, a judgment ordering the legal possession surrendered up by Little to Morris and for costs. The possession here adjudicated was the very matter in controversy. The action of trespass to try title is a possessory action. The view here taken is fully sustained by this court in the case of Merle v. Andrews, 4 Tex. R., 200; Forgay et al. v. Conrad, 6 How. R., 202.

The language in the latter case is peculiarly applicable to this. Chief Justice Taney says: “If these appellants must therefore wait until the accounts are reported by the master and confirmed by the court, they will be subject to irreparable injury; for the lands and slaves which they claim will be taken out of their possession and sold, and the proceeds distributed, &c., before they can have an opportunity to be heard in this court in defense of their rights.”

So in the case at bar. If Little, by the mere fiat of the judge, is to be thrown out of possession and an insolvent man put in to commit waste and enjoy the rents and profits, without even giving bond and security to make good his damage, and is compelled to await the final trial, he may be thus ruined with out remedy.

Let it be remembered that Little, on taking possession, gave bond to Morris for all damages which might be assessed on the final hearing. Here is a legal possession under contract until the final trial, yet the district judge, with a single stroke of his pen, annuls this contract, is to oust a citizen from his freehold by a proceeding unknown to the law, against the principles of the common law, and in direct contravention of the spirit of our constitution and laws. In such case a district judge cannot take jurisdiction on motion.

Overruling the motion to enter judgment nunc pro tunc, error lies. (Wilkerson v. Goldthrait, 1 S. & P. R., 159.) Refusal to quash execution, error lies. (Page v. Coleman, 9 Port., 274.) Overruling motion to quash forthcoming bond to avoid execution will support writ of error. (5 Ala. R., 618.)

II. Again, suppose it be said that error will not lie, then we are thrown on the application for mandamus for relief. The prospective injury is beyond dispute, and there must be a mode of redress, and none other is known save by error or mandamus. Judge Blackstone says there is a mode of redress for every conceivable injury. Here, if the writ of error and petition for mandamus be dismissed, we are then at the mercy of the sheriff, to be turned out of possession in the face of the stipulations of our bond, and to look to an insolvent man for damages should we succeed on the final trial. Whereas, if the illegal judgment be annulled on the final hearing justice may be done, and the party in possession, under security to his adversary, can be made to respond, should he fail to surrender the possession if the suit be decided against him.

The bond given by Little was strictly in pursuance of law; its performance looked to the trial in chief. What right had a subordinate judge or any other to...