Pelham v. Sanders, 6897

• Citation: 290 S.W.2d 684
• Decision Date: 03 May 1956
• Docket Number: No. 6897,6897
• Parties: Mabel PELHAM, Relator, v. S. H. SANDERS, District Judge, et al. Respondents.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 684

290 S.W.2d 684

Mabel PELHAM, Relator, v. S. H. SANDERS, District Judge, et al. Respondents.

No. 6897.

Court of Civil Appeals of Texas, Texarkana.

May 3, 1956.

James R. Strong, Carthage, for relator.

Davis Bailey, Carthage, for respondents.

DAVIS, Justice.

This is an original proceeding for temporary restraining order, writ of prohibition, and writ of mandamus. Mabel Pelham, relator, had filed suit for divorce against George Pelham in the District Court of Panola County in which she sought custody of a minor child born to their marriage, child support, attorney's fee, and a partition and division of the community property of the said Mabel Pelham and George Pelham. This record does not reveal the date the suit was filed, but the case came on for trial on June 18, 1955, during the May term of said court. The term of court was attempted to be extended by order of the court until the conclusion of said trial. On June 29, 1955, according to the judgment entered in said cause, '* * * the court further proceeded with the trial of said cause on the issue of divorce only. At the conclusion of which, after hearing the evidence and statement of counsel, the court was of the opinion and so found, that the plaintiff, Mabel Pelham, was entitled to divorce, * * *.' (Emphasis ours.) At such hearing, the court further determined that the temporary custody of the minor child should be awarded to plaintiff, Mabel Pelham, and directed the defendant, George Pelham, to pay $50 per month for the support of said child during said temporary custody. No judgment for divorce was entered at that time, '* * * and the court deferred a hearing and determination of temporary custody and the partition of the property of the parties until the next term of court.' (Emphasis ours.)

On October 22, 1955, according to the judgment, the case was '* * * called for trial for further proceedings at the conclusion of which the court again extended that term for the completion of said trial * * *.' (Emphasis ours.) This was at the September term of said court. On November 4, 1955, another hearing was had and, according to the judgment, '* * * at the conclusion of which the court took said cause under advisement * * *.' On the 2nd day of January, 1956, the same being the beginning date of the January, 1956, term of said court, the court heard further testimony and the hearing was continued until the 6th day of January, 1956, at which time the court again heard testimony and appointed Sam LaGrone receiver. The receiver's report was filed, and on the 18th day of January, 1956, according to the judgment, the court concluded the trial of said cause and entered judgment. All hearings after June 29, 1955, were in regard to the custody of the child and the property only. Mabel Pelham was granted a divorce; the care, custody and control of their minor daughter with visitation privilege by defendant; the defendant was ordered to pay $30 per month to Mabel Pelham for the support of said child; and Mabel Pelham was awarded $125 as attorney's fee. Then the following provisions appear in said judgment 'It is further ordered, adjudged and decreed by the court that the matters above determined and ordered be, and the same are hereby severed from the rights of Mabel Pelham and George Pelham in and to any and all property claimed by the parties to this cause whether the same is claimed as separate property of the respective parties or the community property of the respective parties; and the parties, and each of them, Mabel Pelham and George Pelham, shall have their right under proper pleading in any Court having proper jurisdiction to litigate all property rights they have and claim between each other.

'It is further ordered, adjudged and decreed by the court that Mabel Pelham vacate the house, lands and premises described in the pleadings in this cause and made the subject to controversy between the plaintiff Mabel Pelham and the defendant, George Pelham and give the possession thereof to George Pelham, until such time as the title and right of possession thereto has been established and fixed by the court having jurisdiction thereof, this order being without prejudice to the rights of property of either party.'

The foregoing judgment and orders were not signed and entered until March 8, 1956. No notice of appeal is shown in the judgment. The record shows that exceptions were taken and notice of appeal was given in open court at the time the judgment was announced and plaintiff, Mrs. Pelham, filed written exceptions and notice of appeal. On the 13th day of March, 1956, she filed an affidavit of inability to pay costs or to give security therefor and thereby perfected her appeal from the judgment so entered.

On March 22, 1956, on oral motion of counsel for George Pelham, the District Judge, S. H. Sanders, who held the many hearings in the case, personally issued the following instrument:

'The State of Texas

'To The Sheriff Or Any Constable Of Panola County, Texas:

'Whereas, on the 18th day of January, 1956, in the Cause of Mabel Pelham v. George Pelham No. D-560 in the District Court of Panola County, Texas, this court in open court, among other things, ordered that the plaintiff, Mabel Pelham, vacate the house, lands and premises described in the pleading in this cause, and on the 8th day of March, 1956, this cause duly signed and entered said order, decreeing as follows:

'It is further ordered, adjudged and decreed by the court that Mable Pelham vacate the house, lands and premises described in the pleadings in this cause and made the subject of controversy between the plaintiff Mable Pelham and the defendant, George Pelham and give the possession thereof to George Pelham, until such time as the title and right of possession thereto has been established and fixed by the court having jurisdiction thereof, this order being without prejudice to the rights of property of either party; and

'Whereas, notwithstanding the orders of this court on the 18th day of January, 1956, and the above quoted order entered in the minutes of this cause, and the further fact that Mabel Pelham has been delivered a certified copy of the Court's judgment, the above being a part, she has failed and refused to vacate said premises in accordance with the orders of this court, and will continue so to do:

'You are hereby commanded remove the said Mable Pelham from the house, lands and premises involved in this suit, and to cause her to vacate the same forthwith, and you are commanded to place George Pelham in possession thereof until further orders of this court.

'Herein fail not, and make due return of how you have executed this writ.

'Signed this the 22nd day of March, 1956.

'/s/ S. H. Sanders

Judge, 123rd Judicial

District of Texas.'

Immediately after the foregoing instrument was issued, plaintiff, Mabel Pelham, requested said judge to fix a supersedeas bond, which he refused to do. The instrument issued by Judge Sanders was placed in the hands of Glenn Hunt, Sheriff of Panola County, with instructions to execute same, and Mabel Pelham as relator, with leave of this Court, filed her petition for temporary restraining order and writ of prohibition to prevent the execution of...