Ridley v. McCallum

• Decision Date: 22 July 1942
• Docket Number: No. 2418-7892.,2418-7892.
• Citation: 163 S.W.2d 833
• Parties: RIDLEY v. McCALLUM, District Judge, et al.
• Court: Texas Supreme Court

163 S.W.2d 833

RIDLEY v. McCALLUM, District Judge, et al.

No. 2418-7892.

Commission of Appeals of Texas, Section A.

July 22, 1942.

Original mandamus proceedings by C. E. Ridley, relator, against Claude M. McCallum, District Judge, and others, respondents, to require the named respondent to set aside an order entered by him which undertook to set aside a judgment. A motion to dismiss the proceedings was filed by respondents.

Motion overruled, and writ of mandamus issued.

White & Yarborough, of Dallas, for relator.

Touchstone, Wight, Gormley & Touchstone, of Dallas, for respondents.

HICKMAN, Commissioner.

By this original proceeding the relator, C. E. Ridley, seeks by mandamus to require Honorable Claude M. McCallum, District Judge, one of the respondents, to set aside an order entered by him on July 26, 1941, which order undertook to set aside a judgment theretofore entered by him in his court at a prior term thereof on November 6, 1940. It is made to appear that on April 23, 1940, relator instituted suit in a district court of Dallas county against respondent Dallas Cartage Company and City Transit Company, alleging each to be a corporation. The suit was for damages for personal injuries sustained by relator's wife and also for medical bills and for damages to relator's automobile. Two citations were issued and each of the named defendants was cited by serving Walter B. Williams, the alleged president of each. The citations commanded the defendants to answer on May 20, 1940. No answer was filed by either of the defendants, but each wholly made default. The relator was informed by the Secretary of State after he filed his original petition that City Transit Company was not incorporated. Thereafter, on July 22, 1940, relator was granted leave to amend and on that date filed his first amended original petition in which the name of City Transit Company was omitted and only Dallas Cartage Company was retained as a party defendant.

In view of the fact that the respondents in their answer alleged that the City Transit Company was "a party in existence", we shall dispose of the case on the assumption that it was a real party to the suit and was properly served with citation, and thus remove any question as to there being a fact issue involved.

No answer having been filed by Dallas Cartage Company and no appearance having been otherwise made in the case, the court on October 30, 1940, awarded relator a judgment by default with writ of inquiry. On the 6th day of November thereafter the cause was transferred from the district court in which same was pending, to the 101st Judicial District Court, and was tried before respondent, Honorable Claude M. McCallum, district judge, and a jury. Although the defendant had wholly made default and was not represented at the trial, issues were submitted to the jury and judgment was rendered thereon in favor of the relator against Dallas Cartage Company for approximately $2,400. On July 14, 1941, during a subsequent term of the court, respondent Dallas Cartage Company filed a motion to recall an execution which had theretofore been issued in the case and to vacate the judgment of November 6, 1940. Thereafter, on July 26, 1941, the court, over the timely plea to its jurisdiction interposed by relator, granted the motion and set aside its former judgment. This latter order is the one under attack in this proceeding.

Before considering the case on its merits we take notice of a motion filed by the respondents to dismiss this proceeding. The ground of the motion is that there is no showing made here that relief was sought from the Court of Civil Appeals prior to the filing of this proceeding in this court. Relators invoke the rule declared in such cases as Dallas Railway & Terminal Co. v. Watkins, 126 Tex. 116, 86 S.W.2d 1081, and Miller v. Stine, 127 Tex. 22, 91 S.W.2d 315, to the effect that, in a case in which the Court of Civil Appeals has jurisdiction to issue the writ of mandamus applied for in this court, the relator should first seek relief in that court. Passing over the question of whether the rule there announced would be applied in a case like this, in which the motion for leave to file the petition for mandamus has already been granted and the case is up for consideration on its merits, we overrule the motion on the ground that the Court of Civil Appeals is not clothed with jurisdiction to grant the relief sought. Such courts have jurisdiction to issue writs of mandamus to enforce their jurisdiction, R.S.1925, Art. 1823, and to compel the judge of the district court or county court to proceed to trial and judgment in a cause. R.S. 1925, Art. 1824, as amended by Acts of 1929, Ch. 33, Sec. 1, Vernon's Ann.Civ. St. Art. 1824. They also have jurisdiction to issue such writs against "Any Chairman or member of any Executive Committee, or primary committee, or primary election officer, of any political party," for certain purposes. Vernon's Civil Statutes, Art. 1735a. But the language of none of the statutes referred to is sufficiently broad to authorize such courts to issue a writ of the nature of that sought in this proceeding. In the absence of a statutory grant of that authority, it does not exist. The motion to dismiss the petition is overruled.

The motion filed by respondent Dallas Cartage Company upon which the order under attack was rendered reads as...