Myers v. Myers, 16403
| Decision Date | 10 October 1974 |
| Docket Number | No. 16403,16403 |
| Citation | 515 S.W.2d 334 |
| Parties | Russell Seth MYERS, Jr., Appellant, v. Norma Ruth MYERS, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
John H. Holloway, Houston, for appellant.
Jesse A. Pardue, Larry Emerson, Houston, for appellee.
In a divorce decree that terminated the marriage of Russell Seth Myers, Jr. and Norma Ruth Myers, the trial court awarded to Mrs. Myers $20,000 as attorneys' fees for the use and benefit of her attorneys, Mr. Jesse A. Pardue and Mr. Larry Emerson. On appeal the award of attorneys' fees was affirmed by the Fourteenth Court of Civil Appeals in Myers v. Myers, 503 S.W.2d 404 (Tex.Civ.App.1973, writ dism. w.o.j.), and a mandate was issued on May 3, 1974.
On April 30, 1974 Norma Ruth Myers appears to have executed a release of judgment purporting to discharge Russell Seth Myers' obligation to pay the attorneys' fees. Three days later, on motion of Mr. Pardue and Mr. Emerson, the trial court ordered the district clerk to pay them $20,000 plus interest at the rate of six percent per annum from April 5, 1973 and all court costs out of cash deposited as a supersedeas bond filed by Russell Myers on August 15, 1973. Russell Myers complains of the order by his 'Appellant's Brief or Petition for Mandamus.'
Mr. Pardue and Mr. Emerson have filed a motion to dismiss the appeal and briefs in response to the appellant's 'appeal or mandamus .'
We sustain the motion to dismiss the appeal.
When an appellate court affirms a judgment, upon issuance of its mandate the trial court has the duty to give effect to the judgment by executing proper orders. 4 Tex.Jur.2d Rev. Part 2 Appeal and Error § 985; Uvalde Paving Co. v. Brooks, 86 S.W.2d 49 (Tex.Civ.App.1935, no writ).
When an appellate court renders a judgment in a case the district court has no jurisdiction to review, interpret or enforce it. It must observe and carry out the mandate of the appellate court. Its orders carrying out the mandate are ministerial. Conley v. Anderson, 164 S.W. 985 (Tex.1913); Cattlemen's Trust Co. v. Willis, 179 S.W. 1115, 1117 (Tex.Civ.App.1915, no writ). The court's order to pay the judgment out of funds deposited pursuant to a supersedeas bond was ancillary to the cause on the merits. It was not a final judgment for purposes of appeal. Rule 301, Texas Rules of Civil Procedure.
The supersedeas bond provided that in case the judgment of the Supreme Court or the Court of Civil Appeals shall be against Russell Myers, Jr., if he shall perform its judgment, sentence, or decree, and pay all such damages as said Court may award against him, then the supersedeas bond shall be void; otherwise to remain in full force.
In his brief Mr. Myers states that if his appeal 'is an incorrect legal remedy, then he files this brief as a petition for writ of mandamus to the Honorable Ruby Sondock, Judge . . . to set aside the void order to distribute the funds directly to the attorneys involved in denial of the constitutional rights of Russell Seth Myers,...
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...judgment and dismiss the appeal;14 in Olvera, we reversed and rendered judgment.15 The Olvera court quoted our older sister's opinion in Myers v. Myers16 for the proposition that trial courts on remand have "no jurisdiction to review, interpret or enforce" an appellate mandate.17 This langu......
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...unless the Legislature or Congress has provided that they must be heard elsewhere); see, e.g., Myers v. Myers, 515 S.W.2d 334, 335 (Tex. Civ. App.-Houston [1st Dist.] 1974, writ dism'd w.o.j.) ("It must observe and carry out the mandate of the appellate court. Its orders carrying out the ma......
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