Long v. Martin

• Decision Date: 05 March 1924
• Docket Number: (No. 1762.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 260 S.W. 327
• Parties: LONG et al. v. MARTIN.
• Court: Texas Court of Appeals

260 S.W. 327

LONG et al. v. MARTIN.

(No. 1762.)^*

Court of Civil Appeals of Texas. Amarillo.

March 5, 1924.

Rehearing Denied April 2, 1924.

Application by M. E. Martin for a writ of prohibition to restrain H. A. Long and others from interfering with the enforcement of a judgment. Application granted.

Fitzgerald & Hatchitt, of Wichita Falls, for Martin.

W. L. Eason and W. E. Spell, both of Waco, for respondents Long and others.

BOYCE, J.

This is an application by M. E. Martin for a writ of prohibition from this court, to restrain the respondents from interfering with the enforcement of the judgment of this court, rendered in the above numbered and entitled cause; the opinion on original hearing being reported in the case of Long v. Martin, 234 S. W. 91.

The case came to this court on writ of error from the district court of Wichita county, and the judgment of the district court was affirmed on the 21st day of May, 1921; judgment being rendered against the plaintiffs in error, H. A. Long and W. H. McCullough, and the sureties on their appeal bond, Ed. McCullough and Tom McCullough. Motion for rehearing was overruled by this court on October 12, 1921. On the 31st day thereafter petition to the Supreme Court for writ of error was filed, which was granted by the Supreme Court on February 15, 1922. Thereafter the Supreme Court dismissed the writ of error for want of jurisdiction and overruled the motion for rehearing thereon on March 7, 1923. See Long v. Martin, 112 Tex. 365, 247 S. W. 827. Mandate of this court was issued on December 4, 1923. On December 20, 1923, alias execution was issued out of the district court of Wichita county on said judgment, directed to the proper officers of McLennan county, and was on the 4th day of January, 1924, levied upon 200 shares of stock in the Central National Bank of Waco; 150 shares of such stock being levied on as the property of W. H. McCullough and 50 shares thereof as the property of Tom McCullough, and the sheriff was proceeding to advertise said property for sale.

Thereafter, on January 29, 1924, Long and the McCulloughs, joined by Kate O. McCullough, wife of Tom L. McCullough, filed suit in the district court of the Seventy-Fourth judicial district, in McLennan county, to enjoin the execution of said judgment of this court. As grounds therefor it was alleged: (1) That the judgment of this court became final on November 12, 1921, 30 days after the overruling of the motion for rehearing, as above stated, and had become dormant because no execution was issued within 12 months after such date. (2) That said judgment is void because the plaintiff's petition in said cause set out no cause of action and conferred no jurisdiction on the trial court or this court to render any judgment therein. (3) That notices of sale were not published in accordance with law. (4) That the levy is illegal because of insufficient description of the property levied on; that W. H. McCullough owns only 10 shares of stock in said bank; and that the 50 shares of stock, levied on as the property of Tom L. McCullough, is the separate property of Kate O. McCullough. The prayer was for temporary injunction against the execution of said judgment and for final judgment, canceling and holding for naught the said judgment of this court and for permanent injunction against the execution thereof. The Hon. H. N. Richey, judge of said district court, on presentation of such petition, granted the temporary injunction as prayed for therein, and said cause is now pending in said court.

As already stated, M. E. Martin, the judgment creditor, has filed this petition for writ of prohibition against the plaintiffs in the injunction suit above mentioned, and Hon. H. M. Richey, judge of said district court, to prevent further interference with the execution of said judgment. The respondents have answered: (1) That this court is without jurisdiction to grant a writ of prohibition against the respondents herein; and (2) that it is their right to maintain said injunction suit for the same reasons alleged in their petition for injunction, as above stated, they have also filed herein what they term a cross-action, in which they ask this court to reexamine the question of the sufficiency of the petition on which the judgment in this case was rendered, to declare it subject to general demurrer, and on such grounds set aside our former judgment.

The question as to the dormancy of the judgment will be determined by the effect that should be given to the proceedings in writ of error from this court to the Supreme Court. If the application for the writ of error and the action of the Supreme Court thereon prevented the judgment of this court from becoming final, so that execution might not issue, the judgment was not dormant because execution was issued within a year after the writ of error was finally dismissed by the Supreme Court. Article 3717 of the Statutes provides that —

"If no execution is issued within twelve months after the rendition of a judgment in any court of record, the judgment shall become dormant," etc.

The Commission of Appeals held in the case of McDonald v. Ayres, 242 S. W. 195, that although the mandate of the Court of Civil Appeals was not issued for more than a year after the judgment of that court became final, the judgment was not dormant, probably on the conclusion that as execution on the judgment of the Court of Civil Appeals issues out of the lower court on mandate from the appellate court (R. S. art. 1646) the date for the computation of the period for determining the dormancy of the judgment would begin with the issuance of the mandate. We are not inclined to agree to this conclusion, and in this statement Judge Randolph, who wrote the opinion of the Commission of Appeals in the case of McDonald v. Ayres, and who is now on this court, concurs. Article 1633 of the Statutes provides that —

"If no writ of error be sued out, or motion for rehearing be filed, within thirty days after the conclusion or decision of the court has been entered in any Court of Civil Appeals, the clerk of the court shall, upon application of either party and the payment of all costs, issue a mandate upon said judgment."

We are of the opinion that a party, by delaying taking out a mandate when he is entitled to it, after the judgment has become final, cannot prevent the case from coming within the express terms of article 3717, which we have already quoted. In the case of Continental Gin Co. v. Thorndale Mercantile Co. (Tex. Com. App.) 254 S. W. 939, it was held that the issuance of a mandate is not necessary "to render the judgment final," and that the 10 days after rendition of final judgment, allowed under the provisions of articles 7106 and 7107, Revised Statutes, for the return of replevied property, began to run from the time the judgment became final in the appellate court, without reference to the date of the issuance of its mandate. So we come back to the consideration of the question of the effect to be given to the proceeding in the Supreme Court.

In this discussion we may take into consideration, in addition to the articles of the Statutes already referred to, the provisions of article 1541, and rules 4 and 5 for the Supreme Court, and rule 66 for the Courts of Civil Appeals. Article 1541 provides that petition for writ of error shall be filed with the clerk of the Court of Civil Appeals "within thirty days from the overruling of the motion for rehearing." Rule 4 for the Supreme Court is, in part, as follows:

"When the plaintiff in error has failed to file his application within the time prescribed by law, the clerk of this court shall submit the matter to the court before filing same, with any statement of excuse which may be presented by the applicant and the court will act upon such application to file. If it be refused then no record will be made of the application or the disposition of it."

It is provided in rule 5 for the Supreme Court that "the court having granted the writ, the clerk of the court shall issue the writ of error to the judges of the Court of Civil Appeals, to which the writ of error is sought, advising them that the writ has been granted," and shall also issue citation to the defendant in error, etc. Rule 66 for the Courts of Civil Appeals is as follows:

"Upon the presentation to him of an application for a writ of error, the clerk of the Court of Civil Appeals shall withhold the mandate until properly advised of the disposition of the case by the Supreme Court."

Now, as already stated, an application for writ of error was filed with the clerk of this court on the 31st day after the motion for rehearing was overruled. We take it that he had no authority to decline to file it. This application, with motion to be permitted to have it considered, so the record indicates, was presented to the Supreme Court. That court granted the application for writ of error, and on the 7th day of March, 1922, issued the writ of error, directed to this court, as provided in rule 5, above referred to, and said writ of error was duly transmitted to this court. The Supreme Court then, on January 31, 1923, rendered judgment, and, declaring that "the writ of error herein was improvidently granted and that the court is without jurisdiction," ordered that the writ of error be dismissed. A motion for rehearing was filed which was by the court overruled on March 7, 1923. It is true that the Supreme Court has always held that it has no jurisdiction where the application for the writ of error is not filed within 30 days from the overruling of the motion for rehearing in the Court of Civil Appeals. Long v. Martin, 112 Tex. 365, 247 S. W. 827, and authorities there cited. But during all this time the Supreme Court has maintained a rule which in a sense invites the making of such applications and litigants from time to time have, on different excuses for the failure to file the application within time...