Rawlins v. Stahl, 15594

• Decision Date: 30 October 1959
• Docket Number: No. 15594,15594
• Citation: 329 S.W.2d 308
• Parties: John A. RAWLINS, Appellant, v. Betty Jean Mudge STAHL et vir, Appellees.
• Court: Texas Court of Appeals

Page 308

329 S.W.2d 308

John A. RAWLINS, Appellant, v. Betty Jean Mudge STAHL et vir, Appellees.

No. 15594.

Court of Civil Appeals of Texas, Dallas.

Oct. 30, 1959.

Rehearing Denied Nov. 27, 1959.

Johnson, Guthrie & Stanfield, Dallas, for appellant.

Scurry, Scurry, Pace & Wood, Dallas, and Owens, Purser & Bourland, Austin, for appellees.

DIXON, Chief Justice.

This is an appeal from an order dissolving part of a temporary injunction.

On October 21, 1955, Mrs. Betty Jean Mudge filed suit against John A. Rawlins to cancel a contract of employment. Mrs. Mudge had employed Judge Rawlins as her attorney to represent her in obtaining a divorce from her husband and had signed a written contract dated May 17, 1955, wherein it was stipulated that as a fee Judge Rawlins should be paid 25% of all monies and properties recovered by him for her. On July 20, 1955, Mrs. Mudge discontinued the services of Judge Rawlins as her attorney, and employed other counsel. Sometime thereafter a property settlement was effected with her husband and a divorce was granted to Mrs. Mudge. Later she married again, her new name being Stahl.

In response to the suit for cancellation of the contract Judge Rawlins filed an answer and a cross-action seeking enforcement of the contract and judgment for 25% of the property awarded to appellee at the time her divorce was granted. A summary judgment was rendered in favor of Judge Rawlins on his cross-action. Mrs. Stahl appealed. We reversed the summary judgment and remanded the case for trial of certain fact issues. Our opinion, written by Justice Young, appears in Stahl v. Rawlins, Tex.Civ.App., 304 S.W.2d 549, to which reference is here made for a full copy of the written contract and other details pertaining to this litigation.

On February 1, 1956, Judge Rawlins filed an application for appointment of a receiver to take possession of the property in dispute. However the application for receiver was not prosecuted to a conclusion. The evidence before us is to the effect that before the receivership hearing had been concluded the parties through their attorneys agreed to a temporary injunction in order to avoid the possibility of a receivership and the attendant heavy expense.

On March 15, 1956, the order for a temporary injunction was signed by the Honorable A. R. Stout, Judge of the 40th Judicial District sitting for Judge of the 44th Judicial District of Texas. Since this temporary injunction is the subject of this appeal, we deem it appropriate to copy material parts of the order: 'This day came on to be heard the Trial Amendment of the cross-plaintiff John A. Rawlins, seeking an injunction against the Republic National Bank of Dallas and the Preston State Bank, of Dallas, and came the parties and their attorneys in open court and announced to the Court that they had agreed upon the terms of a temporary injunction to be issued herein; and it appearing to the Court that the parties had agreed to such injunction and that it should issue: * * * (a) The Republic National Bank of Dallas is hereby temporarily enjoined from honoring any checks written by Betty Jean Mudge or by anyone having power to check upon her account payable to anyone, at any date, which would reduce her balance and account below the sum of $2,394.50, but the said Republic National Bank of Dallas may honor any checks which do not deplete the said account below the said sum; (b) The Preston State Bank is hereby temporarily enjoined from allowing Betty Jean Mudge or anyone authorized by her, or any other person in the world, from having access to, entering, opening, withdrawing from, or going into, the safety deposit box of Betty Jean Mudge, with this exception; * * * that said appraiser shall appraise the contents of said safety deposit box and replace each and every item in said safety deposit box, with the exception of the following: one pair gold swirl earrings; one gold and diamond dome ring; one gold diamond and topaz watch; one platinum diamond choker necklace; one platinum diamond wrist watch; one platinum diamond and sapphire ring, and one platinum diamond and black pearl earrings, which said items shall be allowed to be surrendered to the possession of Betty Jean Mudge, on the condition that she carry a policy of insurance insuring said items against loss of any kind * * * that said safety deposit box of Betty Jean Mudge shall not be gone into again until the further orders of this Court; that the safety deposit box keys be required to be surrendered to this Court to be held until the further orders of this Court, or to be held by the Clerk of this Court. * * * All of said temporary injunctions shall be and are effective until the further orders of this Court.'

On September 2, 1958, the case came on for trial on its merits before a jury. On September 9, 1958, the jury returned its verdict. Both sides filed motions for judgment, the motion of Mrs. Stahl asking in the alternative that a mistrial be declared. In February 1959 the court declared a mistrial.

Meantime on December 11, 1958, after the return of the jury verdict but before the court declared a mistrial, appellee, Mrs. Stahl, filed a motion to dissolve the temporary injunction. The grounds alleged in the motion were that appellant Rawlins had testified at the trial on the merits that he was making no claim to a 1/4 interest in the jewelry owned by Mrs. Stahl or to her separate property.

On January 14, 1959, the trial court sustained in part the motion to dissolve the temporary injunction. The order provided in effect that the provisions of sub-paragraph (b) of the temporary injunction of March 15, 1956, be dissolved and that the keys to Mrs. Stahl's safety deposit box at Preston State Bank be delivered to her; but the motion to dissolve was denied as to the money on deposit to Mrs. Stahl's credit in the sum of $2,395.50 with Republic National Bank of Dallas.

Since the motion to dissolve was based on Judge Rawlins' testimony at the trial on the merits, we quote parts of his testimony:

'Q. Now, I want to get your testimony clear in regard to the separate property. Have you just testified that you made no claim, now make no claim, and never intended to make any claim to the personal jewelry, the automobile and the clothing of Mrs. Mudge, now Mrs. Stahl? A. My testimony is that at the time this contract was drawn and at the time of my discharge, I made no claim to any other property than that which I would recover for her, and that was a fourth interest.

'Q. In what? A. In everything that I recovered for her.

'Q. Well, did you explain to her, I believe you've just stated that you didn't, did you explain to her that that did or did not include her jewelry--her jewels, her furs, her automobile? A. I didn't explain it any further than read the paragraph which took that out of contention by saying that it was then in her possession, and I signed the contract.

'Q. Well, you've just stated that you never heard or contemplated any such interpretation as the effect that you were claiming a part of her jewels and so forth under this contract, am I correct? A. I could not have claimed any part of it unless I recovered it, and she had it already under the terms of the contract. * * *

'Mr. Page: Then was it your intention at the time of the preparation of this agreement that it did not include her jewels, her furs, and her automobile? A. Well, it was my intention, and it's expressed in the contract. That's the reason I put it in, that she had it in her...