Weber v. Snell, 16738
| Decision Date | 01 July 1976 |
| Docket Number | No. 16738,16738 |
| Citation | 539 S.W.2d 363 |
| Parties | Mrs. Clinton (Leona) WEBER et al., Relators, v. Judge John SNELL, Jr., et al., Respondents. (1st Dist.) |
| Court | Texas Court of Appeals |
Leona Weber, Clinton Weber, pro se.
Clyde Gordon, Houston, for respondents.
Mrs. Clinton (Leona) Weber, individually and as trustee to Solid Rock Refuge, Inc., and Clinton C. Weber have filed application for writs of mandamus against the Honorable John Snell, Jr., Judge of the 152nd Judicial District Court of Harris County, Texas, the Honorable Thomas J. Stovall, Jr., Judge of the 129th Judicial District Court of Harris County, Texas, the Honorable Arthur Lesher, Judge of the 157th Judicial District Court of Harris County, Texas, and Hermine Bleyl, Clerk of the 152nd Judicial District Court of Harris County, Texas. Although Leona Weber purports to represent Solid Rock Refuge, Inc., she is not an attorney licensed to practice before the courts of this State and we therefore consider her application to be only on her own behalf.
The transcript filed in support of relators' application reflects the following sequence of events: Clinton Weber, Solid Rock Refuge, Inc., and Mrs. Clinton Weber, as plaintiffs, brought an action against Full Gospel of Christ Fellowship, Inc., Paul Richardson, its president, Bible Way Temple, its trustees, James E. Howell, Willis Warren and E. L. Milton, First State Bank of Greens' Bayou and Stewart Title Guaranty Company, as defendants, alleging that the plaintiffs had agreed to convey to defendant Full Gospel of Christ Fellowship, Inc. certain property in Harris County, Texas, for a purchase price of $18,000.00 with a $500.00 earnest money deposit and the balance to be paid in cash; that the agreement had been made upon the representation of Richardson that the property would be used for the same purposes as it had been used by plaintiffs, that is, as a bible school and as a refuge for homeless and neglected girls. That contrary to such representation the defendant Full Gospel of Christ Fellowship, Inc., the day prior to the closing of such transaction, conveyed the property to the defendant Bible Way Temple. The plaintiffs sought to have their deed cancelled and in the alternative sought damages; they also sought a restraining order prohibiting the defendants from interfering with their continued use of the property.
The plaintiffs' first amended original petition was filed in said Cause No. 913,602 on April 27, 1973. The docket sheet reflects that on August 15, 1973, a non-suit was taken by the plaintiffs and that the cause proceeded to trial on defendants' cross-action. The transcript contains a cross-action brought on behalf of Full Gospel of Christ Fellowship, Inc. and James E. Howell against cross-defendants Clinton Weber and wife, Mrs. Clinton Weber, wherein it is alleged that cross-defendant Clinton Weber, with the encouragement of cross-defendant Mrs. Weber, struck Howell causing him bodily injury, pain and medical expense for which he sought damages in the amount of $6,000.00, and a temporary injunction to prevent cross-defendants from such further conduct. A docket entry reflects that the court decreed the cross-plaintiffs should take nothing on their cross-action 'as per decree' and ordered a severance as to the cross-plaintiffs' application for a temporary injunction and right of possession 'as per order.' It further reflects that an order on the non-suit was signed by the court on August 17, 1973. This order is not in the transcript but we have obtained a copy of the order dismissing the plaintiffs' action upon their non-suit.
The transcript also contains an order designated 'Final Judgment' in Cause No. 913,602, which recites that on August 15, 1973, the plaintiffs were granted a non-suit and that the cause proceeded to trial on the cross-action for damages which the court denied and that the court ordered a severance as to the temporary relief sought by the cross-plaintiffs which remained on the docket. This order reflects entry on October 19, 1973, and was apparently signed by Judge Snell; however, the signature is lined through in ink and the docket notation is also marked through as though the court intended to strike the order. No explanation for such marking appears in the record.
The docket sheet further indicates that on September 24, 1973, temporary relief on the severed cross-action was denied 'as per order.' There appears in the transcript an order of this date signed by Judge Snell on October 1, 1973, denying temporary injunctive relief to the cross-plaintiffs for possession of the premises in question.
On September 4, 1973, Clinton Weber, Solid Rock Refuge, Inc., and Mrs. Clinton Weber, as plaintiffs, brought a separate action as Cause No. 955,310 against defendants Full Gospel of Christ Fellowship, Inc., its president Paul Richardson, Bible Way Temple, James E. Howell and Willis Warren, which alleged essentially the same cause of action as set forth in their earlier action (Cause No. 913,602) which was dismissed upon their non-suit. This petition was answered by the defendants on November 13, 1973, and a cross-action for damages in the way of interest, rentals and other relief was also filed.
On February 6, 1976, Clinton Weber, Solid Rock Refuge, Inc., and Mrs. Clinton Weber filed their first amended original petition in a third action, Cause No. 958,988, against defendants First State Bank & Trust Company of Houston, the Stewart Title Guaranty Company, Miles Strickland and G. W. Archer, alleging damages by reason of said defendants' participation in the sales transaction between the plaintiffs and Full Gospel of Christ Fellowship, Inc.
The docket sheet reflects that on June 3, 1974, the court, upon motion, ordered Cause No. 958,988 and Cause No. 955,310 consolidated with Cause No. 913,602, and that an order of consolidation was signed on July 8, 1974. This order does not appear in the transcript before us.
On March 11, 1975, the case proceeded to trial before a jury and according to the docket sheet the plaintiffs discharged their attorney in open court and a mistrial was declared. All costs incurred to that date were taxed against the relators. Subsequently by final judgment in the consolidated cause pending in the 129th Judicial District Court, which judgment is dated August 25, 1975, and was signed by the Honorable Thomas J. Stovall, Jr., Judge of said court, on March 1, 1976, the court entered summary judgment in favor of the Bible Way Temple, as cross-plaintiff, against cross-defendants Solid Rock Refuge, Inc., a corporation, Clinton Weber and wife, Leona Weber, for the title...
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State Bar of Tex. v. Heard
...to trial and judgment and does not include the power to tell that court what judgment it should enter. Weber v. Snell, 539 S.W.2d 363, 367 (Tex.Civ.App. Houston (1st Dist.) 1976). Nor does the court of civil appeals have jurisdiction to order the trial court to set aside a void interlocutor......
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In re Ramirez
...discretion, this court is without authority to compel by mandamus the entry of a default judgment. Weber v. Snell, 539 S.W.2d 363, 366 (Tex. Civ. App.--Houston [1st Dist.] 1976)(orig. proceeding). However, the trial court has no discretion to refuse to hear and rule on a motion for default ......
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In re Lewis, No. 07-04-0432-CV (TX 9/17/2004)
...exercise of a trial court's discretion, making the remedy of mandamus unavailable. Id. at 683. See also Weber v. Snell, 539 S.W.2d 363, 366 (Tex.Civ.App.-Houston [1st Dist.] 1976) (orig. proceeding); Palacios v. Rayburn, 516 S.W.2d 292, 294 (Tex.Civ.App.-Houston [1st Dist.] 1974) (orig. For......
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In re Bright, No. 07-04-0426-CV (TX 9/20/2004)
...show that there was a duty to perform, a refusal to act, or where the circumstances evidence the futility of making a demand. Weber v. Snell, 539 S.W.2d 363, 367 (Tex.Civ.App.-Houston [1st Dist.] 1976, orig. proceeding), citing Harney v. Pickens, 120 Tex. 268, 37 S.W.2d 717, 718 (Tex. 1931)......