Russell v. Taylor

• Decision Date: 16 May 1932
• Docket Number: No. 1327-6099.,1327-6099.
• Parties: RUSSELL v. TAYLOR, District Judge, et al.
• Court: Texas Supreme Court

49 S.W.2d 733

RUSSELL v. TAYLOR, District Judge, et al.

No. 1327-6099.

Commission of Appeals of Texas, Section B.

May 16, 1932.

Proceeding by E. K. Russell for a writ of prohibition to be directed to W. M. Taylor, District Judge of the Fourteenth Judicial District of Texas, Dallas County, and to Texas Cotton Growers' Finance Corporation, to restrain further proceedings in a pending cause.

Decision in accordance with opinion.

R. T. Bailey and Pat S. Russell, both of Dallas, for relator.

C. K. Bullard and McCormick, Bromberg, Leftwich & Carrington, all of Dallas, for respondents.

SHORT, P. J.

This is an original proceeding filed in the Supreme Court by the relator, E. K. Russell, asking permission to file an application for a writ of prohibition, and an injunction against Hon. W. M. Taylor, judge of the 14th judicial district of Texas, Dallas county, and Texas Cotton Growers' Finance Corporation. The Supreme Court having granted the application to file the petition, the same was filed December 23, 1931. The matters in dispute between the real litigants, in so far as it is necessary for us to decide, involve the question whether the district court of the 14th judicial district, of which the respondent Hon. W. M. Taylor is judge, or that of the 102d judicial district of which Hon. R. J. Williams is judge, first acquired jurisdiction of the subject-matter of this case. The relator resides in Red River county, and the respondent judge Taylor, as well as the co-respondent corporation, have their legal residence in Dallas county, Tex. The notes sued on by the respondent corporation were payable in Dallas county. The relator filed the suit in Red River county and in the 102d judicial district, against the respondent Texas Cotton Growers' Finance Corporation, as well as some other parties, on the 24th day of November, 1931, the main purpose of which apparently was to cancel the above-mentioned evidence of indebtedness held by the respondent corporation against the relator on the ground that the indebtedness represented by them had been paid. However, it seems that no citation was issued immediately, because the clerk was instructed at the time the petition was filed not to issue the citation until directed to do so. A few days later, and before any citation was issued in the suit filed in Red River county, the Texas Cotton Growers' Finance Corporation filed a suit in the 14th judicial district court at Dallas against E. K. Russell and others, though E. K. Russell was the principal defendant, based upon the claim that these evidences of indebtedness held by the corporation, and, described in the Red River suit, wherein the Texas Cotton Growers' Finance Corporation, in the Dallas county suit, asserted in substance that these debts thus evidenced were valid, due, and unpaid, and sought to foreclose certain liens on certain property belonging to the relator, E. K. Russell, in which it is alleged that certain other parties had some interest, though inferior to that of the corporation. Citation was immediately issued and served in the suit filed in Dallas county. By an amended petition the corporation, plaintiff in the Dallas county suit, sought to have a receiver appointed of the property described in its petition. In the meantime, Hon. W. M. Taylor, judge of the 14th judicial district, issued an injunction against E. K. Russell and his attorneys, enjoining them from disposing of the property on which the corporation claimed it had a valid lien to secure a just debt. The relator then filed a plea in abatement in the 14th judicial district court, asking that that suit be abated on the ground that the Red River district court had exclusive jurisdiction, and that the Dallas county district court did not have jurisdiction to determine the matters in controversy, under the facts stated in the plea. The plaintiff in the suit filed in the Dallas county district court filed a sworn reply to this plea in abatement, setting up what, in effect, is a plea in bar to the plea in abatement.

On January 2, 1932, the Supreme Court entered the following order:

"It is ordered by the Supreme Court that the Honorable R. J. Williams, Judge of the 102d. District Court of Red River County, Texas, and the Honorable W. M. Taylor, Judge of the 14th District Court of Dallas County, Texas, be, and they are hereby restrained from entering any further orders in the following named suits pending in their respective courts, to-wit:

"Cause No. 16935, E. K. Russell vs. Texas Cotton Growers Finance Corporation, on the docket of the District Court of Red River County, and Cause No. 96701-A, Texas Cotton Growers Finance Corporation vs. E. K. Russell, pending in the District Court of Dallas County, Texas.

"This restraining order will remain in force and effect until the further orders of the Supreme Court made in Cause No. 6099, E. K. Russell, Relator, vs. W. M. Taylor et al., Respondents, pending in the Supreme Court.

"This order is made in order to maintain the jurisdiction of the Supreme Court over the parties and subject matters involved in the above named and styled mandamus suit."

The respondent, Hon. W. M. Taylor, on February 12, 1932, filed in this cause, his answer, which is as follows:

"Records of the District Court of Dallas County for the 14th Judicial District of Texas show that there is pending in such court a suit numbered 96701-A on the docket thereof, styled Texas Cotton Growers Finance Corporation vs. E. K. Russell, et al., the records further show the following with reference to such suit:

"(a) Plaintiff's original petition filed November 28th, 1931, with restraining order then issued.

"(b) Plaintiff's first amended original petition filed, and order to show cause why receiver should not be appointed then entered, on December 10th, 1931.

"(c) Plea in abatement of defendant, E. K. Russell, filed December 14th, 1931.

"(d) Plaintiff's second amended original petition filed December 15th, 1931, and restraining order therein issued.

"No other pleadings have been filed or orders entered, excepting that pursuant to process issued on numerous other defendants, pleadings by them have been filed.

"Until I was advised that a motion for leave to file an application for a writ of prohibition was filed in the Supreme Court relating to the matter, my attention had not been called, by any of the attorneys of record in the cause, to the plea in abatement above mentioned. No request had been made by any such attorneys of record of me, either that the plea in abatement be heard, or that the hearing be postponed, nor had any request been made that the hearing set on December 10th for the 26th day of December on the order to show cause why a receiver should not be appointed be postponed, or be heard prior to or after a hearing on the plea in abatement. No question as to which hearing would be had first was presented to me by any attorney in the case.

"Since first advised of the filing in the Supreme Court of motion for leave to file an application for a writ of prohibition I have deferred taking all action on the plea in abatement, on the order to show cause why a receiver should not be appointed and on the injunctive relief sought; Further proceedings on these matters will be taken only after the jurisdiction of the Supreme Court has been exercised and then pursuant to any instructions that it may issue. In the absence of instructions and on motion to such effect, I will continue to hold in its present status the order to show cause as to the receivership relief, and the preliminary restraining order heretofore entered, determining first the plea in abatement filed by the defendant, E. K. Russell."

The respondent Texas Cotton Growers' Finance Corporation, in the application, which in part is the basis of the foregoing order made by the Supreme Court, stated certain facts under oath to the effect that, while the respondent Taylor did not intend to take any further action in the matter until the Supreme Court had passed upon it, Hon. R. J. Williams, judge of the 102d district court, was threatening to proceed with the trial of the case on his docket. The respondent Texas Cotton Growers' Finance Corporation has filed with the Supreme Court certain statements, which we find supported by the record, to wit:

"On November 14th, 1931, this respondent, having placed the notes and chattel mortgages executed by relator in the hands of its attorney for immediate suit, made demand for payment by relator, who, acting by and through his son and attorney, gave assurances of payment, asked for an itemization of the indebtedness and the security therefor, and asked for and obtained time within which to check the itemization. The itemization being furnished on November 16th, such assurances were then repeated, and were again repeated on November 21st and November 23rd; respondent continued to rely on such assurances of payment, postponing the suit which would have been filed in Dallas County before this otherwise; that having induced such reliance relator filed a suit in Red River County, Texas, for cancellation of the notes and mortgages on November 24th, 1931; that instructions were given to the clerk at the time relator's suit was filed, however, that no process issue pending further instructions. Thereafter, the attorney for relator having advised the attorney for this respondent for the first time that some (but not all) of the indebtedness claimed by respondent was disputed, respondent immediately caused the suit which had been held in abeyance meanwhile to be filed in Dallas County, Texas, on November 28th, on the notes and mortgages, and process thereon, including citation and notice of a temporary injunction restraining the disposition of the mortgaged property, was served on relator on the same day at his home in Red River County.

"Thereafter, respondent learned for the first time of the institution of the suit in Red River County, Texas, and...