Roberts v. Munroe

• Decision Date: 13 February 1917
• Docket Number: (No. 5854.)
• Citation: 193 S.W. 734
• Parties: ROBERTS et al. v. MUNROE, District Judge.
• Court: Texas Court of Appeals

193 S.W. 734

ROBERTS et al. v. MUNROE, District Judge.

(No. 5854.)

Court of Civil Appeals of Texas. Austin.

February 13, 1917.

On Motion for Rehearing, April 4, 1917.

Original petition by Artemas R. Roberts and others for writ of mandamus against Richard I. Munroe, District Judge. Writ granted.

Williams & Williams and E. G. Senter, all of Waco, for petitioners. Richard I. Munroe, Spell & Sanford, and Stribling & Stribling, all of Waco, for respondent.

KEY, C. J.

On the 13th day of January, 1917, Eli W. Gaffney filed a petition in the district court of McLennan county for the Fifty-Fourth judicial district, against Artemas R. Roberts, A. R. Wilson, and the Amicable Life Insurance Company, in which petition he sought to obtain a peremptory writ of mandamus, compelling Artemas R. Roberts, as president, and A. R. Wilson, as secretary, of the Amicable Life Insurance Company, to permit him as a stockholder in that corporation to inspect the stock books and other record books of the company. The petition was properly verified, and for the purpose of this opinion it will be conceded that it alleged facts which, if true, entitled Gaffney to the relief sought, unless his right to such relief would be defeated by proof of the facts averred in the answer filed by the respondents in that case. On the same day the petition was presented to Judge Munroe, who set the matter for hearing on the 18th day of January, 1917, but who thereafter, at the request of defendants' counsel, postponed the hearing until the 25th day of that month. On the 20th day of January, 1917, the Amicable Life Insurance Company filed a petition against Eli W. Gaffney and five other defendants in the district court of McLennan county for the Seventy-Fourth judicial district, in which suit the plaintiff alleged that Gaffney was not in fact a stockholder in the plaintiff's corporation; that he and the other defendants had entered into a conspiracy for the purpose of destroying and wrecking plaintiff's business; that in order to accomplish that result the defendant Gaffney desired to inspect the plaintiff's books and records for the purpose of obtaining a list of its stockholders, in order that he might communicate with them and make to them false and untrue charges against the plaintiff, its officers and employés, in the management of its business, etc. On the 20th day of January, 1917, that petition was presented to Judge E. J. Clark, judge of the district court of McLennan county for the Seventy-Fourth judicial district, and he granted a temporary writ of injunction, restraining the defendants from committing the wrongful acts charged in that petition.

On the 25th day of January, 1917, Judge Munroe, whose court was not in session in McLennan county, and acting in vacation, heard and disposed of the case first above referred to, and granted to Gaffney, the plaintiff in that case, the writ of mandamus prayed for against the defendants in that case, compelling them to permit him to examine the books and records of the corporation known as the Amicable Life Insurance Company. They appeared and filed an answer, in which they set up substantially the same facts set up in their petition, upon which Judge Clark had already issued an injunction in their favor; and they also paid a jury fee, and demanded that the case be put on the jury docket, and tried at the next term of Judge Munroe's court in McLennan county.

Judge Munroe, as shown by his answer filed in this court, decided that Gaffney was a bona fide stockholder in the Amicable Life Insurance Company, and was such when he made request to inspect the records and books of the company; and he held, as matter of law, that he was vested with jurisdiction and power to finally try and decide the case in vacation, and that, even conceding that the pleadings presented a material issue of fact, the defendants were not entitled, as matter of right, to have the case put on the jury docket and tried before a jury in open court; that as such stockholder Gaffney had the right to examine the books and records of the insurance company at reasonable times, regardless of his motives for making such examination; and that the proper preservation and enforcement of his rights in that regard demanded judicial action at that time, and when the district court of McLennan county for the Fifty-Fourth judicial district was not in session.

On January 27, 1917, the Amicable Life Insurance Company and Artemas R. Roberts and A. R. Wilson, president and secretary of that company, as relators, filed a petition in this court against Judge Richard I. Munroe, as respondent, in which they pray for a judgment and decree, commanding and requiring him to vacate the order and decree made by him granting the writ of mandamus against relators, and to require the clerk of that court to recall and cancel the same, and to place that case upon the jury docket, etc.

After due notice, hearing, and consideration, this court has reached the conclusion that the relators are entitled to the relief sought.

Preliminary to a discussion of the controlling questions in the case, we deem it proper to say that we do not regard the proceeding had in Judge Clark's court as in any wise affecting the rights of the parties in this court. We agree with the ruling of Judge Munroe, wherein he held that, as the suit in his court was filed before the one brought in Judge Clark's court, the proceedings had in the latter case in no wise affected his jurisdiction in the other case.

If this court has any authority to grant the relief sought in this case, such authority is derived from article 1595 of the Revised Statutes, relating to Courts of Civil Appeals, which reads:

"The said courts, or any judge thereof, in vacation, may issue the writ of mandamus to compel a judge of the district court to proceed to trial and judgment in a cause, agreeably to the principles and usages of law, returnable on or before the first day of the next term or during the session of the same, or before any judge of the said court, as the nature of the case may require."

It was decided by our Supreme Court in Kleiber v. McManus, 66 Tex. 48, 17 S. W. 249, that the phrase "agreeably to the principles and usages of law," contained in a similar statute which at that time conferred similar jurisdiction upon the Supreme Court, should be construed as applying to the procedure in the appellate court by which the mandamus was sought, and not as characterizing the nature of that writ when issued against a district judge; and we accept the construction placed upon that statute as the proper one to be placed upon the statute authorizing Courts of Civil Appeals and judges thereof to issue writs of mandamus for the purpose of requiring a district judge to proceed to trial of a case.

We also accept and heartily concur in the doctrine announced by our Supreme Court in Ewing v. Cohen, 63 Tex. 482, and many other cases, to the effect that, while the statute referred to confers power upon this court to compel a district judge to proceed with the trial of a case, it does not confer authority to dictate what judgment shall be rendered, or direct how the district court shall rule upon any question that may arise during the progress of the trial.

With these preliminary observations, we now pass to a consideration of more important questions. Did the law confer upon the respondent authority, while sitting in vacation, to make the order and render the judgment made and rendered in the proceeding before him? Both the Constitution and the statute authorize district courts and the judges thereof to issue writs of mandamus, and it was decided by the Supreme Court in Thorne v. Moore, 101 Tex. 205, 105 S. W. 985, that the statute referred to confers upon district judges, in cases where the facts are undisputed, the power to issue writs of mandamus in vacation. In that case, the facts upon which the district judge had issued the writ of mandamus were undisputed, and therefore the Supreme Court held that he had jurisdiction to issue that writ. The facts did not require, and the court did not decide, what would have been the result as to the jurisdiction of the trial judge, if there had been any controversy as to the material facts.

In the proceeding before this court, the record shows that the respondents in the case disposed of by Judge Munroe had filed an answer, alleging facts which, if true, should have defeated Mr. Gaffney's right to examine the books of the corporation. In other words, we hold that if Mr. Gaffney was not a stockholder, or if he sought to examine the books of the corporation, not for the purpose of protecting his own rights as a stockholder, but for the purpose of obtaining information to be used by him in furtherance of a scheme to defraud stockholders and wreck the corporation, then and in that event he was not entitled to the aid of a court of equity to enable him to accomplish that result, although it is provided by statute that a stockholder shall have the right to examine the books of the corporation. So in this case, as the pleadings raised issues of fact material to the rights of the parties, and as the insurance company and its officers demanded a jury trial, it becomes necessary to decide whether or not they were entitled to such trial; and, if so, whether or not that fact, and the fact that no method has been prescribed by law for obtaining juries and testimony for the trial of issues of fact before a judge in vacation, deprived Judge Munroe of jurisdiction and authority to render the judgment and make the order here complained of; and we have reached the conclusion that both of these questions must be decided in favor of the relators in this case. And we also conclude that relators are entitled at the hands of this court to the relief here sought, and the reasons for such conclusions will now be stated.

There is a marked and radical distinction between a common-law writ of...