Norton v. Hutchins

• Decision Date: 17 October 1938
• Docket Number: 4-5315
• Citation: 120 S.W.2d 358,196 Ark. 856
• Parties: NORTON v. HUTCHINS, CHANCELLOR
• Court: Arkansas Supreme Court

120 S.W.2d 358

196 Ark. 856

NORTON v. HUTCHINS, CHANCELLOR

4-5315

Supreme Court of Arkansas

October 17, 1938

Prohibition to St. Francis Chancery Court; A. L. Hutchins Chancellor; writ granted.

E. J Butler and Daggett & Daggett, for petitioner.

Roy D Campbell and Dennis W. Horton, for respondent.

OPINION

HUMPHREYS, J.

This is a petition to this court by Mary McDougal Norton seeking to prohibit Hon. A. L. Hutchins, as chancellor of the 5th chancery district of the state of Arkansas from restraining her from prosecuting a suit against W. M. Robinson, her former husband, to subject his real estate in the state of Texas to the payment of an indebtedness due her under a property settlement in a separation agreement. She had filed the suit for that purpose in the 126th district court of Travis county, Texas, on the second day of July, 1938, after failing to find property in the state of Arkansas belonging to W. M. Robinson against which she might proceed to collect the amount due her under said property settlement agreement.

She had brought a suit for that purpose against W. M. Robinson in the chancery court of St. Francis county on March 7, 1938, and filed amendments thereto on the 8th day of March, 1938, and the 20th day of April, 1938. The cause in the chancery court was numbered 6567.

Answers were filed to the complaint and amendments thereto denying each and every material allegation therein.

Prior to this time she had brought a suit in said chancery court for a divorce from W. M. Robinson and had obtained same. This divorce suit was numbered 6366.

On March 8, 1938, she filed a motion in the divorce suit, No. 6366, for the support and custody of Ada Matrona Robinson, their minor daughter.

On March 12, 1938, W. M. Robinson filed a response to the motion for the support and custody of the child.

On July 20, 1938, W. M. Robinson filed a motion in causes 6366 and 6567 pending in the chancery court to restrain Mary McDougal Norton from prosecuting the suit she had brought in the Texas court on July 2, 1938, on the ground that the suit brought by Mary McDougal Norton in Texas involved the same issues as those involved in causes 6366 and 6567 pending in the chancery court of St. Francis county, in so far as they related to the custody and support of the child, and the validity or invalidity of the marriage settlement concerning their property rights.

The above motion or petition was set for hearing at 9 o'clock a.m., Monday, August 29, 1938, by the chancellor.

After W. M. Robinson filed his motion in causes Nos. 6366 and 6567 to restrain Mary McDougal Norton from prosecuting the case she had brought in Texas, Mary McDougal Norton, on the 6th day of August, 1938, in vacation, dismissed both her cases before the chancery clerk in the manner provided by statute for dismissing said cause.

On the 26th day of August, 1938, the chancellor having discovered that she had dismissed her causes, and after notice to him that Mary McDougal Norton would apply to the Supreme Court for a writ of prohibition to prevent him from proceeding further with W. M. Robinson's motion to restrain her from prosecuting her suit in Texas, the chancellor procured the files in the cases and struck therefrom her dismissals of them in vacation. The chancellor was notified on Saturday afternoon, August 27, 1938, that Mary McDougal Norton would apply before Justice BASIL BAKER in Little Rock on Monday morning August 29, 1938, at 10 o'clock a. m. for an order restraining him from proceeding further for any purpose whatever in the St. Francis county causes Nos. 6366 and 6567 on the ground that after she had dismissed her cases the chancellor or chancery court had no jurisdiction to make orders restraining her from prosecuting her suit in Texas, and upon being notified the chancellor waived service and made an entry of appearance before Justice BAKER. Pursuant to the notice of the hearing before Justice BAKER at 10 o'clock on Monday morning, August 29, 1938, Mary McDougal Norton appeared before Justice BAKER and obtained a temporary order restraining the chancellor from proceeding further in said causes Nos. 6366 and 6567.

Notwithstanding the chancellor had been notified that application would be made to Justice BASIL BAKER, one of the Supreme Justices of Arkansas, at 10 o'clock a.m., Monday morning, August 29, 1938, for a writ prohibiting him from proceeding further in cases Nos. 6366 and 6567 until his jurisdiction to proceed in such cases was adjudicated by the Supreme Court, the chancery court, pursuant to notice theretofore given Mary McDougal Norton, proceeded about 9 o'clock a.m., Monday morning, August 29, 1938, to hear the motion theretofore filed in cases Nos. 6366 and 6567 to restrain Mary McDougal Norton from prosecuting the case she had brought in Texas, which resulted at some time during the said day in a finding by the chancellor that the Texas suit was in the form and effect and essentially the same as causes numbered 6366 and 6567 then pending in the St. Francis chancery court in the state of Arkansas, and that W. M. Robinson was entitled to the relief prayed in his motion for a restraining order which motion was filed on the 20th day of July, 1938, and entered the following vacation order at some hour during said day:

"Wherefore it is considered, ordered and decreed that the application of the defendant for the restraining order prayed in this cause No. 6567, and in cause No. 6366 be and the same is hereby granted, and the plaintiff, Mrs. Mary McDougal Robinson, is hereby ordered and directed to refrain from prosecuting the action brought by her in the 126th judicial district court of Travis county, Texas, the same being cause No. 60250, and against the defendant herein, W. M. Robinson, and the plaintiff herein will be so restrained, from prosecuting said action until the further orders of this court. A certified copy of this order may be filed by the defendant herein with the clerk of the 126th judicial district court of Travis county, Texas.

"This order made in vacation by the undersigned on this the 29th day of August, 1938.

"A. L. Hutchins, Chancellor."

A response was filed by W. M. Robinson to the application for a writ of prohibition making exhibits thereto all the proceedings which had been done in causes numbered 6366 and 6567 brought by Mary McDougal Norton against W. M. Robinson from the time they had been filed, and the substance of the Texas suit which she...