Reed v. Bryant

• Decision Date: 04 December 1926
• Docket Number: (No. 11794.)
• Citation: 291 S.W. 605
• Parties: REED v. BRYANT, District Judge, et al.
• Court: Texas Court of Appeals

291 S.W. 605

REED v. BRYANT, District Judge, et al.

(No. 11794.)

Court of Civil Appeals of Texas. Fort Worth.

December 4, 1926.

Rehearing Denied January 29, 1927.

Motion for Leave to File Second Motion for Rehearing Denied February 26, 1927.

Petition by M. H. Reed for writ of prohibition restraining Bruce W. Bryant, Judge of District Court of Throckmorton County, and others, from taking steps to prevent execution of mandate issued by Court of Civil Appeals, and for injunction to restrain respondents from taking any steps to delay or prevent execution of that judgment. Relief granted.

Hart, Patterson & Hart, of Austin, for relator.

G. W. Thomason, of Haskell, for respondents.

DUNKLIN, J.

On October 31, 1920, Mrs. Edna Thomason and her husband, Y. L Thomason, instituted their suit in the district court of Throckmorton county against M. H. Reed for the cancellation of a certain contract of sale of an oil lease to them by Reed, and for the recovery of certain vendor's lien notes which plaintiffs transferred to Reed in part consideration for said purchase, also for the cancellation of a promissory note for the principal sum of $2,241, executed by the plaintiffs to Reed in further consideration for the sale of the lease. The grounds for such cancellation, briefly stated were that Reed had obligated himself to drill an oil well on adjoining land to a depth of 3,500 feet, unless oil or gas was found at a less depth, on or about February 21, 1920, and would furnish plaintiffs an abstract of title to the lease so sold to them, showing good title thereto, both of which obligations he had breached.

To that suit Reed filed an answer, denying the allegations in plaintiffs' petition, and in addition thereto he filed a cross-action for judgment against plaintiffs on the note for $2,241, which plaintiffs had executed and delivered to him. Upon the trial of the case judgment was rendered denying plaintiffs the relief prayed for, and decreeing a recovery in favor of Reed on his cross-action for the principal and interest of the note which plaintiffs had executed to him, mentioned above. That suit was No. 465 on the docket of the district court of Throckmorton county.

The plaintiffs in that suit prosecuted an appeal to this court, where the judgment of the district court was in all things affirmed. See 263 S. W. 1069. A motion for rehearing, filed by appellants, was duly overruled, and an application for writ of error to the Supreme Court from that decision was denied. A mandate from this court was duly issued for the collection of the judgment so rendered in favor of Reed.

Prior to the issuance of said mandate, Mrs. Edna Thomason and her husband, Y. L. Thomason, filed another suit, in the nature of a bill of review, in the district court of Throckmorton county, in cause No. 540 on the docket of that court, against M. H. Reed, to set aside the judgment theretofore rendered in said cause No. 465, and grant a new trial of the issues involved in that suit. Copies of all the proceedings in cause No. 465, including copies of the judgment, pleadings, and statement of facts, were attached to the plaintiffs' bill of review.

In the bill of review, plaintiffs set up the same cause of action that they had alleged in the former suit; and the grounds upon which the cancellation of the former judgment was sought were, in substance, as follows: (1) That the judgment in favor of Reed upon the former trial was procured upon testimony of Reed upon material issues which he knew to be false at the time it was given, and testimony of other witnesses which Reed procured, and which he likewise knew to be false. (2) That since the final judgment in the former suit plaintiffs had discovered other witnesses who would testify to facts material to the cause of action set up by plaintiffs in the first suit, and which would corroborate the testimony given by plaintiffs in that suit, and another witness who had been newly discovered, who would testify in direct contradiction of the material testimony given by a witness introduced by Reed on the trial of the former case. In that connection it was alleged, in substance, that the plaintiffs' failure to discover said new witnesses before the trial of the former suit was not due to any lack of diligence on their part. (3) That the jury selected to try the former suit and upon whose verdict the judgment in that suit was rendered, were guilty of misconduct, in that during their deliberations they discussed other lawsuits in which the plaintiffs in this suit were interested, which discussion created a prejudice against the plaintiffs in the suit, and by reason of such prejudice a verdict was rendered against them. In that connection it was further alleged that the trial court adjourned its term very shortly after the verdict was returned and judgment rendered thereon, and plaintiffs, through no lack of diligence failed to discover such misconduct of the jury until after said adjournment, which was then too late to be set up as one of the grounds of their motion for new trial in that cause. (4) That judgment in cause No. 465 was not final because it failed to provide for the issuance of an execution to collect the amount so awarded to Reed.

In the second suit, and based upon the grounds therein alleged, the plaintiffs procured from the district judge a temporary writ of injunction, restraining the collection of the judgment theretofore rendered in favor of M. H. Reed until the final determination of the merits of the bill of review. In other words, the purpose and effect of said injunction was to restrain the execution of the writ of mandate, which was later issued by this court for the collection of the judgment rendered by this court on appeal in said cause No. 465. And in the bill of review plaintiffs sought to have the temporary writ of injunction made perpetual when that suit should be finally tried.

The proceeding now before this court is by way of an original petition, filed by M. H. Reed, for a writ of prohibition, restraining the judge of the district court of Throckmorton county, in which the bill of review was filed, from taking any steps to prevent the execution of the mandate issued by this court in said cause No. 465, and also for a writ of injunction restraining the plaintiffs from taking any steps to delay or to prevent the execution of that judgment. Hon. Bruce W. Bryant, in his capacity as judge of said court, and Mrs. Edna Thomason and her husband, Y. L. Thomason, are all made respondents to relator's petition, and they have filed an answer thereto.

Respondents insist that this court is without jurisdiction to grant the relief prayed for by relator, by reason of the fact that Throckmorton county is now no longer within the Second Supreme judicial district, for which this court was established, but that same is now within the Eleventh Supreme judicial district, and that relator's only remedy is to appeal to the Court of Civil Appeals of the latter district after cause No. 540, mentioned above, has been finally tried and determined. The judgment of this court, affirming the judgment of the trial court in cause No. 465, had the legal effect to make the judgment of the trial court the judgment of this court, and it is well settled by the authorities that this court has jurisdiction and authority to enforce obedience to its own decrees, notwithstanding the fact that the enforcement of the same may be in a county outside of this Supreme judicial district. Hovey v. Shepherd, 105 Tex. 237, 147 S. W. 224; Cattlemen's Trust Co. v. Willis (Tex. Civ. App.) 179 S. W. 1115; Long v. Martin (Tex. Civ. App.) 260 S. W. 327; Williams v. Foster (Tex. Civ. App.) 233 S. W. 120; Pierce v. Box (Tex. Civ. App.) 284 S. W. 231.

As shown in the respondents' petition for bill of review in cause No. 540 in the district court of Throckmorton county, the facts sought to be established by the witnesses who were discovered after the trial of the case of No. 465, and after the expiration of the term of court during which judgment was rendered, were testified to by the plaintiffs on the trial of that cause, and therefore such newly discovered testimony would be merely cumulative of the testimony that was introduced, except as to the testimony of witness Worley. According to the allegations in the bill of review, Worley had testified favorably to Reed in the trial of cause No. 465, with respect to a matter that was collateral only to the main issues, and, after the adjournment of the term, that witness had informed the plaintiffs that he was mistaken in his testimony given on the trial, and would testify to the contrary if called as a witness.

In the petition filed by the plaintiffs in cause No. 465, a rescission of the contract of sale theretofore made by Reed, and for a restoration of the consideration paid to Reed by the Thomasons, was based upon allegations that the contracts made by Reed as a consideration for the purchase of the lease to drill an oil well and to furnish an abstract of title, was made for the purpose of defrauding the plaintiffs and with no intention of performance. That issue was determined adversely to the plaintiffs. The same issue is presented in the bill of review, filed in cause No. 540, with further allegations of fraud on the part of Reed in the procurement of the former judgment, as noted above. The bill of review contains no allegation that the plaintiffs, through any fraud or act on the part of Reed, or any one acting in his behalf, were prevented from appearing at the trial of the case and fully presenting their claims before the court and jury. In other words, the petition contained no allegations of what is usually termed extrinsic fraud, by which is meant fraud which deprives a party of the opportunity to properly present his case to the court and jury upon the trial. And for such fraud the authorities hold an action will lie to set aside the judgment so obtained. The fraud...