Saenz v. Sanders

• Decision Date: 27 June 1951
• Docket Number: No. 12311,12311
• Parties: SAENZ v. SANDERS, District Judge, et al.
• Court: Texas Court of Appeals

Page 316

241 S.W.2d 316

SAENZ v. SANDERS, District Judge, et al.

No. 12311.

Court of Civil Appeals of Texas, San Antonio.

June 27, 1951.

G. Woodson Morris, Ronald Smallwood, San Antonio, Bob J. Spann, Corpus Christi, Albert U. Trevino, Sam L. Harrison, San Antonio, for appellant.

Birkhead, Beckman, Stanard, Vance & Wood, San Antonio, for appellee.

POPE, Justice.

Relator seeks a mandamus under Article 1824, Vernon's Ann.Civ.Stats., compelling the district judge to set his cause of action for trial. Relator instituted suit against respondents Briggs and Killian in the District Court of Bexar County and charged them with causing an explosion resulting in damages to relator's home. Those respondents, after proper notices and process had been issued, questioned relator, in the course of taking a pre-trial deposition, about the names of any persons who had made inspections of the claimed damages and also about their estimates of the extent of the damage. Relator refused to answer those questions and respondents Briggs and Killian then filed and urged a motion before the trial judge stating the relator refused to answer questions on deposition, and prayed for an order of the court compelling relator to complete his deposition so they could prepare their defense. The court conducted a hearing on the motion, and, after hearing evidence and arguments, ordered relator to complete the deposition by answering the questions. The order provided that the parties should agree upon a suitable time and place, but in the event they could not agree, that the matter should again be referred to him. The parties agreed upon a date and relator again submitted himself for questioning, but he again declined to answer the same questions previously propounded to him.

The order made by the trial judge at the hearing removed the case from the settings for the week of April 2, 1951, which was about three days after the hearing. The order provided that the case should be removed from the settings for April 2d, 'for another and later setting to be made by the court after such deposition has been completed, and after the defendants have had a reasonable time to make investigation for the preparation of the defense after the completion of such deposition.' The second hearing on the deposition was on April 19, 1951, and the next incident in connection with the litigation was the filing of the petition for mandamus. Prior to that filing, nothing was called to the attention of the trial judge relating to relator's further refusal to answer the same questions.

There are two aspects to the order entered by the trial judge. One relates to the validity of his ruling on the evidence sought by deposition in advance of trial, and the other relates to the power of the court to refuse a setting until the deposition is completed. The first problem is a question of evidence and the second is one of judicial power.

When a court exceeds its jurisdiction and powers, one may with impunity disobey a void order or decree, and such may be the case where a court disregards claimed testimonial privileges and immunities. Olson v. Biola Co-op. Raisin Growers Ass'n, 33 Cal.2d 664, 204 P.2d 10, 12 A.L.R.2d 112. And it has been held that one who is required by a void order to produce documents may refuse to comply and invoke the supervisory power of the courts for relief. Carlisle v. Bennett, 243 App.Div. 186, 277 N.Y.S. 187. On the other hand, a court which has jurisdiction over the subject matter and the parties and the power to render the particular order or decree, may expect obedience, though the order or decree is irregular, improvident or in error. Ex parte Westbrook, 126 Tex. 1, 84 S.W.2d 700; Ex parte Kimberlin, 126 Tex. 60, 86 S.W.2d 717. The erroneous exercise of a power is redressable by appeal rather than by mandamus. Wright v. Swayne, 104 Tex. 440, 140 S.W. 221; Ewing v. Cochen, 63 Tex. 482; Ex parte Breeding, Tex.Cr.App., 90 S.W. 634; State ex rel. Everglades Cypress Co. v. Smith, 104 Fla. 91, 139 So. 794. But where the claim is made that an order is void, it must be supported by more than has been here presented. The most that is presented by relator is a dogmatic refusal to obey an order without any statement of reason. Relator in the course of examination simply refuse to give testimony. We are not going to presume that the court unconscionably entered a void order. Relator has fallen far short of his burden to show the court entered a void rather than an erroneous order.

But, assuming the court was correct in his ruling about the propriety of the evidence, which we do not here pass upon, the problem remains as to whether he exceeded his powers in refusing a trial until the questions were answered. From the documents before us, relator swears that he is and will remain adamant in his refusal to answer the questions in advance of trial, though he has twice submitted himself for deposition, and the trial court, after a hearing, has commanded that he answer. It also appears from respondents' pleadings that the respondent judge intends' to secure to Briggs and Killian their right to complete their questioning by refusing to set the case until his order is obeyed. The trial judge by his order effectually held that respondents cannot prepare their defense until the information sought by their questions on the deposition is obtained. No final judgment having been rendered, an appeal is not possible at this time, and only by submitting and answering the questions could relator urge the error on appeal. Should he be compelled to do this? We think he should, and that the trial judge has not usurped powers by demanding obedience to his lawful order.

Article 3769b, Vernon's Ann.Civ.Stats., authorizes punishment for contempt for disobedience of a writ commanding the attendance of a party or witness for questioning by deposition. It is silent about punishment for refusal to answer questions, though we entertain no doubt that such power exists independent of statute. After relator first refused to answer, he received an adverse adjudication after hearing. He now stands in peril of contempt proceedings. That situation would exist even though we should hold that the part of the order refusing to set the case is a usurpation of power and void. But we do not think the trial court is limited in the enforcement of his commands to contempt proceedings only. In appropriate instances, he may conditionally stay proceedings. Decauville Automobile Co. v. Metropolitan Bank 124 App.Div. 478, 108 N.Y.S. 1027, 1033; Matagorda Canal Co. v. Styles, Tex.Civ.App., 207 S.W. 562; 1 C.J.S., Actions, § 134b; 1 C.J., Actions, §§ 416-418. If a plaintiff in the actual trial of his cause takes the witness stand and answers all questions on direct examination and then refuses to answer questions on cross-examination, though the court may elect to proceed by contempt we think he may also declare a mistrial. At a retrial, should the same thing occur, resulting in another mistrial, we think the court very properly could put the party plaintiff to his election of obedience or postponement of a future trial. Relator defiantly stands on his spirit of rebellion toward the court's order and frustrates his adversaries' rights, yet seeks a writ of grace from us. One who seeks the aid of a court must submit himself to all legitimate orders and processes, and we think the court has not exceeded its powers in so controlling the orderly procedure of this case. Skirven v. Skirven, 154 Md. 267, 140 A. 205, 56 A.L.R. 697; Campbell v. Justices of Superior Court, 187 Mass. 509, 73 N.E. 659, 69 L.R.A. 311, 2 Ann.Cas. 462; Whitman v. Kentucky Central Life & Accident Ins. Co. 232 Ky. 173, 22 S.W.2d 593; Kirchner v. Kirchner, 5 N.J.Super. 341, 69 A.2d 30; Travis v. Travis, 89 Cal.App.2d 292, 200 P.2d 843; White v. White, 71 Cal.App.2d 390, 163 P.2d 89; Ross v. Ross, 48 Cal.App.2d 72, 119 P.2d 444; 12 Am.Jur., Contempt, § 71; 27 C.J.S., Discovery, § 86; Rule 167, Texas Rules of Civil Procedure.

The mandamus is refused.

W. O. MURRAY, Chief Justice.

I concur in the opinion written by Associate Justice POPE. We have here a petitioner who advises us in his petition for a writ of mandamus that the trial judge has ordered him to answer certain questions propounded to him by the defendants in an oral deposition, and that he has disobeyed this order of the trial judge and intends to continue to disobey such order. The respondents, who are the defendants below, have alleged and the trial court has found, in effect, that the respondents cannot properly prepare their defense to petitioner's suit until these questions are answered.

Petitioner does not contend that the matter inquired about is a privileged matter, but at most only contends that the trial court ruled incorrectly on a question of evidence in requiring him to answer the questions. We cannot pass upon the correctness of the ruling of the trial court on a matter of evidence, not shown to be privileged, in a mandamus proceeding. 35 Am.Jur. § 258, p. 29; 55 C.J.S., Mandamus, § 87, page 142. Such errors, if any, can be corrected only when properly presented on appeal, and on a mandamus hearing we must presume such ruling of the trial to be correct. 55 C.J.S., Mandamus, § 87, page 142.

Here we have a petitioner who admits that he is the author of his own trouble, that the only reason he cannot secure a trial of his case is that he has refused to obey the solemn order of a trial judge in the very case in which he here seeks relief. All of this in the face of the fact that the respondents have alleged and the trial judge has found...