Wasson v. Collings, 2135.

• Court: Texas Court of Appeals
• Writing for the Court: Leslie
• Citation: Wasson v. Collings, 145 S.W.2d 915 (Tex. App. 1940)
• Decision Date: 22 November 1940
• Docket Number: No. 2135.,2135.
• Parties: WASSON v. COLLINGS, Judge, et al.

145 S.W.2d 915

WASSON v. COLLINGS, Judge, et al.

No. 2135.

Court of Civil Appeals of Texas. Eastland.

November 22, 1940.

Rehearing Denied December 20, 1940.

Original proceeding in mandamus by A. L. Wasson, relator, against Cecil C. Collings, Judge of the Seventieth judicial District of Texas, to procure the entry of a final judgment in a cause tried in the district court of Howard county.

Writ denied.

Thomas & Thomas, of Big Spring, for relator.

O. M. Street, of Dallas, and Cecil C. Collings, Dist. Judge, of Big Spring, for respondents.

LESLIE, Chief Justice.

This is an original proceeding in this court by relator, Wasson, against Cecil C. Collings, Judge of the 70th judicial District of Texas, to require him to do one or the other of the following acts:

"(b) That on hearing hereof a writ of mandamus issue to the Respondent (judge) requiring him to enter a final judgment in said cause No. 3708 of the District Court of Howard County as of date September 28, 1940.

"(c) That in the alternative on hearing hereof, if for any reason the writ cannot direct that the final judgment be entered as of September 28, 1940, then that the Respondent be required to enter final judgment on the presentation of the motion nunc pro tunc therefor at the next succeeding term of the said district court (November term 1940).

"(d) Or in the third alternative, that in case for any reason the writ should not direct the entry of a judgment as of September 28, 1940, or on a motion nunc pro tunc, then that the writ direct the court to retry the cause and enter a final judgment of some kind and do so without further delay at this next term."

This proceeding is predicated upon the proposition that after a trial of cause No. 3708 in the District Court of Howard County September 28, 1940, judge Collings refused to enter a judgment and refuses to set the cause down for trial and render a judgment therein. That in so doing he abuses his discretion as a trial judge and denies the relator, plaintiff therein, a decision in said cause.

In cause No. 3708, the plaintiff A. L. Wasson alleged he was the owner of sections 20, 21, 22 and 23, H. & T. C. Ry. Company Survey, Howard County, Texas, and that the defendants J. S. Garlington and wife were in possession of said lands without right or title and refused to surrender same to him. The prayer in that petition is as follows: "Plaintiff prays for a decree declaring his right to possession of the said property together with all the fixtures, houses * * and that he be given his order of possession * * * against defendants * * *; and further that the regularity of the foreclosure under the deed of trust be held in all things valid * * * and that the plaintiff be held to be the owner of the land in fee simple * * *."

By cause No. 3708 in the District Court of Howard County, it appears that the plaintiff Wasson sought to have his title, acquired at the trustee's sale, adjudicated free from any defects incident to the sale. That is the nature of the cause which Relator alleges the District judge refuses to decide or set down for a trial and final decision.

Other facts out of which this proceeding arises are in substance, as follows:

October 25, 1939, J. S. Garlington and wife, Jennie Lou Garlington, filed in the Federal District Court at Abilene, Texas, a petition in bankruptcy seeking to avail themselves of the Frazier-Lemke Act (Bankr.Act), sec. 75, sub. s, etc., 11 U.S. C.A. § 203, sub. s. The petition was in due form, accompanied by schedules listing property, debts, etc. So far as this record shows the proceeding is still pending in that court, but its present status is not definitely indicated. In other words, the cause may possibly be on appeal.

Schedule B lists various properties, among them, said sections 20, 21, 22 and 23. On September 3, 1927, the Garlingtons executed a deed of trust thereon to secure Relator, A. L. Wasson, for a loan of $5,000. C. L. Wasson was made trustee. On maturity of the debt and default in its payment, he refused to act and under the terms of the trust deed, Ira E. Wasson was made substitute trustee. On December 6, 1939, he advertised the property for sale and January 2, 1940, sold same at public sale to A. L. Wasson, mortgagee. The next day, January 3, A. L. Wasson instituted cause 3708 in the District Court of Howard County. Prior to these dates the Garlingtons had, on October 25, 1939, filed their petition in bankruptcy.

The April, 1940, term of the District Court of Howard County was the first term after service of process was perfected in cause 3708. At that term the cause was passed by agreement of the parties. At the following September term of that District Court, the cause was set for trial September 23, 1940. At the time set, the Garlingtons stated in open court before any announcement of ready for trial that a continuance of the cause would probably be applied for, stating to the court then that the ground for such motion would be that they had learned for the first time on Saturday morning, September 21, at about 11 o'clock a.m., that the Clerk of the United States District Court at Abilene would not release to them the original papers on file in cause No. 1864, styled In re J. S. Garlington et ux., Debtors, Composition or Extension. That it was then too late to obtain certified copies of said orders, etc., and that it was impossible to contact the Federal District judge, the Hon. T. W....