Wasson v. Collings, 2212.

• Court: Texas Court of Appeals
• Writing for the Court: Leslie
• Citation: Wasson v. Collings, 149 S.W.2d 1041 (Tex. App. 1941)
• Decision Date: 21 March 1941
• Docket Number: No. 2212.,2212.
• Parties: WASSON v. COLLINGS et al.

149 S.W.2d 1041

WASSON v. COLLINGS et al.

No. 2212.

Court of Civil Appeals of Texas. Eastland.

March 21, 1941.

Original mandamus proceeding by A. L. Wasson against Cecil C. Collings and others.

Decree in accordance with opinion.

Thomas & Thomas, of Big Spring, for relator.

Cecil C. Collings, of Big Spring, for respondents.

LESLIE, Chief Justice.

This is an original mandamus proceeding in this court by A. L. Wasson, seeking to have this court issue a writ of mandamus requiring the Hon. Cecil C. Collings, District Judge of the 70th Judicial District of Texas (and others), to set down for trial and try cause No. 3807, styled A. L. Wasson v. J. S. Garlington et ux., on the docket of the District Court of Howard County, Texas. The application for mandamus is in substance the same as that reflected by this court's opinion in Wasson v. Collings, 145 S.W.2d 915. It will, therefore, be unnecessary to further state in full the factual background of this proceeding. The relief sought on the former occasion was not granted chiefly for the reason that the allegations of the petition made it appear that the assets of J. S. Garlington and wife were then under the jurisdiction of the Federal Court and were being administered in a bankruptcy proceeding under the Frazier-Lemke Act, 11 U.S.C.A. § 203. After this court's opinion in 145 S.W.2d 915, the plaintiff (below) A. L. Wasson was permitted to file in the trial court a First Amended Original Petition in said cause 3807. In that petition he alleged specifically that the Federal Court had theretofore "entered a final decree and judgment dismissing all the land described in said petition from * * * the control of the court administering (the same) under the Frazier-Lemke Act", etc. A copy of that court's order and decree was attached to the petition as Exhibit A.

The application for mandamus in the instant proceeding brings forward these matters and now presents them to this court. It is again alleged the court declined to try the cause, etc.

This application was set for submission March 13, 1941, and the respondents notified thereof. No answer or reply has been filed.

It is disclosed that the Garlingtons had theretofore instituted "cause No. 1864 in the matter of J. S. Garlington and wife, Farm Debtor in proceedings for composition and extension under section No. 75" (Lemke Act). It was from this proceeding that the subject matter of this litigation was relinquished. The order of the Federal Court, after setting out and finding that said Wasson held a first lien as security for a large amount of money against the land herein involved, decreed as follows:

"Sixth. That since September 1, 1937, Farm Debtor has done nothing to enhance the value of said land but has permitted the improvements thereon to deteriorate in value.

"Seventh. That there is no equity in said land above said indebtedness.

"Eighth. That it would be burdensome to the estate for this court to administer said land.

"Ninth. That it would be beneficial to and for the best interest of this estate that said land be discharged from this proceeding and withdrawn from administration herein and that the same be abandoned to the holder of said indebtedness and that such holder be permitted to pursue his remedies outside the jurisdiction of this court.

"It is...