Williams v. Foster

• Decision Date: 15 June 1921
• Docket Number: (No. 1555.)
• Citation: Williams v. Foster, 233 S.W. 120 (Tex. App. 1921)
• Parties: WILLIAMS v. FOSTER.
• Court: Texas Court of Appeals

Page 120

233 S.W. 120

WILLIAMS v. FOSTER.

(No. 1555.)

Court of Civil Appeals of Texas. Amarillo.

June 15, 1921.

Error from District Court, Floyd County.

Proceedings between S. E. Williams, and J. J. Foster in the matter of the minor Alta Grace Williams. From the judgment, Williams brings error. Motion by J. J. Foster to have S. E. Williams and B. Frank Buie, his attorney, held in contempt of the Court of Civil Appeals. Motion denied and proceedings dismissed.

Hendricks & Mood, of Amarillo, for plaintiff in error.

A. P. McKinnon, of Floydada, for defendant in error.

BOYCE, J.

Defendant in error, J. J. Foster, has filed this motion to have the plaintiff in error, S. E. Williams, and his attorney, B. Frank Buie, held in contempt of this court. The history of the case, down to the filing of this motion, is set out in the opinion in the disposition of another proceeding, in the case Williams v. Foster, 229 S. W. 896, and need not be repeated. It appears that J. J. Foster, after the former order of this court above referred to, duly qualified as guardian of the person of the minor, Alta Grace Williams, and that thereafter said J. J. Foster, as guardian, and S. E. Williams and his wife, executed the following agreement:

"In the Matter of Guardianship of the Minor, Alta Grace Williams. In the County Court of Floyd County, Texas, January Term, 1921. It is hereby agreed, the Hon. J. N. Stallbird, special judge approving the same, that, whereas said minor, Alta Grace Williams, is now in school at Canyon and that it is to the best interest of said minor to remain in said school until the present term expires, which will be some time during the next month, said minor being now with her grandparents, S. E. Williams and his wife, Sarah Williams: Now the said J. J. Foster, guardian of said minor, agrees that said S. E. Williams and wife shall keep said minor and send her to school where she has attended until the expiration of said school, on condition that said Williams and wife will, within three days after said term of school shall expire, bring said minor, Alta Grace Williams, to Floydada, Texas, and have her before said special county judge, Hon. J. N. Stallbird, giving notice of the exact date on which said minor is to be brought before said court, to all of which said S. E. Williams and wife, Sarah Williams, agree, and all parties have signed, this the 14th day of April, 1921, same being filed among the papers of this cause. This agreement not to affect the legal right of either party when said minor is produced in court."

The agreement was signed by said parties and approved by the said J. N. Stallbird, and filed in said cause. It further appears that the said S. E. Williams, acting under the advice of his attorney, B. Frank Buie, has refused to comply with said agreement and has refused to produce said minor in said county court, or deliver her to the said J. J. Foster. It is alleged that this action places said parties in contempt of this court. The respondents, in their reply to the motion, deny the jurisdiction of this court in such matter, and for answer justify their failure to comply with the said agreement on the alleged ground that all proceedings had before said J. N. Stallbird, as special judge, which included the qualification of the said J. J. Foster as guardian, are void because of the fact that the appointment of the said J. N. Stallbird as special judge was unauthorized. In this connection it is alleged and shown that W. B. Clark was the duly qualified and elected county judge of Floyd county at the time of these proceedings; that the said W. B. Clarke, whose daughter was the wife of J. J. Foster's son, certified to the Governor of the state that he was disqualified for such reason. Upon such certification the Governor appointed said J. N. Stallbird special judge in such proceeding, who duly qualified according to law.

We are of the opinion that we should not take cognizance of this proceeding. The execution of judgment at common law was obtained through processes issued out of the court having the original record. Freeman on Executions, § 13. And this is true in our procedure. R. S. art. 1646; Henson v. Byrne, 91 Tex. 627, 45 S. W. 382; Henry v. Red Water Lumber Co., 46 Tex. Civ. App. 179, 102 S. W. 749. The appellate court issues its mandate to the trial court, and it is the province of such court to execute the judgment through proper orders and process. When this court affirmed the judgment of the lower court, appointing J. J. Foster guardian of the person of the minor, Alta Grace Williams, it became the duty of the county court, under the mandate issued from this court, to give effect to the judgment. This required other proceedings in that court, such as fixing the amount of the guardian's bond, approval of same, issuance of letters of guardianship, and further supervision of the proceeding in accordance with law. The agreement made between the guardian and S. E. Williams, filed in the county court, and approved by the county judge, was a part of these subsequent proceedings. If the violation of such agreement subjects the parties violating it to a charge of contempt, the appropriate place for instituting contempt proceedings is in the county court. We need not decide what, if any, power and the proper method of exercising it the county court has to secure the custody of the minor, after it has appointed a guardian and he has qualified. The point is not briefed, and the authorities, on a cursory examination, may be confusing. Ex parte Reeves, 100 Tex. 617, 103 S. W. 480; Anderson v. Cossey, 214 S. W. 624; Stirman v. Turner (App.) 16 S. W. 787; Fitts v. Fitts, 21 Tex. 511.

But if the execution of the judgment appointing the guardian involves the placing of the minor in the actual custody of such guardian, the appropriate proceeding, whatever that may be, to accomplish this result,...