Wagner v. Warnasch
| Decision Date | 28 November 1956 |
| Docket Number | No. A-5937,A-5937 |
| Citation | 295 S.W.2d 890,156 Tex. 334 |
| Parties | R. P. WAGNER, Sr., et al., Petitioners, v. Alice WARNASCH et al., Respondents. |
| Court | Texas Supreme Court |
W. D. Bryan, Sealy, Richard Spinn, Brenham, for petitioners.
J. P. Hart and E. H. Pratka, Jr., LaGrange, for respondents.
The appeal is from an order of the district court of Austin County on a motion to enforce a judgment theretofore rendered by that court. The Court of Civil Appeals reversed the trial court's order and rendered judgment denying the relief sought. 291 S.W.2d 389, 390.
The proceedings out of which the present litigation arose were instituted in December, 1953, by the filing of a petition by Alice Warnasch, Caro Lynn Warnasch, and Louise Krivacka, hereinafter referred to collectively as the Warnasches, seeking to establish a roadway easement over the lands of R. P. Wagner, Sr., and Joe Angle. That suit resulted in an agreed judgment granting the Warnasches a right of way over the lands of the defendants and also over the land of one Carl D. Neumann, who made himself a party to the agreement. As a part of the agreement the Warnasches obligated themselves to construct or cause to be constructed cattle guards at designated locations, same to be built according to plans and specifications attached to the agreement and made a part thereof. Other obligations were imposed upon the Warnasches, but they are of no importance here. The judgment entered by the court decreed that "The above and foregoing agreement having been announced in open court before all parties present and all parties having signified to the Court their approval thereof, the same is hereby adopted by the Court and shall constitute a final judgment in this cause from which no party to this cause has evidenced any right of appeal."
The motion upon which the order in the instant case was entered recognized the agreed judgment as a final judgment of the court binding on all parties thereto. After reciting that the Warnasches had failed to construct the cattle guards described in the agreement, the motion requested the court to issue a show cause order directed to the Warnasches commanding them to appear and show cause why the cattle guards should not be constructed according to the plans and specifications attached to the judgment, and in the event of continued willful failure to do so why the court should not appoint a commissioner to construct the cattle guards under the orders of the court at the expense of the Warnasches. There was an alternative plea that the Warnasches be adjudged to be in contempt of court. The relief sought is set out specifically in the prayer as follows:
'Wherefore, Petitioners make known to the court that they desire the aforesaid Show Cause Order to be issued and served upon Alice Warnasch, Carolynn Warnasch and Louise Krivacka et vir, Joe Krivacka, and for a hearing hereon and at said hearing that this court exercise jurisdiction of said Judgment to the extent of enforcing the same by appointment of a commissioner as heretofore prayed for in the alternative, your Petitioner prays that upon hearing hereof that the said parties be adjudged to be in contempt of this court and be sent to jail until they purge themselves of such contempt.'
The order entered by the court finds that the agreed judgment was a final judgment and decree of the court; that the movents had fully complied on their part with the obligations of that judgment, but that the Warnasches had not complied with the obligations of the judgment in respect to having the cattle guards constructed. The order recited that the court had authority to enforce the execution of its judgment under the provisions of Article V. Sec. 8, of the Constitution of Texas, Vernon's Ann. St.; Articles 1914 and 2217, Vernon's Civil Statutes of Texas, and Rule 308, Texas Rules of Civil Procedure, and then decreed that the Warnasches should construct the cattle guards at their own expense within sixty days and report to the court not later than sixty days from the date of the order that they had complied therewith, and that failure to do so should render them '* * * in contempt of this court and they shall remain in contempt of this court until they shall have purged themselves by performing the orders, judgments and mandatory decrees of this court as herein set forth.'
It is to be observed that the relief prayed for in the motion was not granted in the court's order. That relief was (1) the appointment of a commissioner to construct the cattle guards, and (2) that the Warnasches be adjudged to be in contempt of cou...
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