Yett v. Cook

• Decision Date: 20 January 1925
• Docket Number: (No. 6525.)
• Citation: 268 S.W. 715
• Parties: YETT, Mayor, et al. v. COOK et al.
• Court: Texas Supreme Court

Page 715

268 S.W. 715

YETT, Mayor, et al. v. COOK et al.

(No. 6525.)

Supreme Court of Texas.

January 20, 1925.

On motion by W. D. Yett, Mayor of the City of Austin, and other officials, for leave to file an original petition for writs of prohibition, mandamus, procedendo, and injunction, against Chas. B. Cook and others. Motion granted.

Cofer & Cofer, of Austin, for relators.

Paul D. Page, Jr., J. Harris Gardner, Ireland Graves, and D. K. Woodward, Jr., all of Austin, for respondents.

CURETON, C. J.

This case is before us on motion by W. D. Yett, mayor of the city of Austin, and other officials of the city, relators, for leave to file an original petition for writs of prohibition, mandamus, procedendo, and injunction against Charles B. Cook, Hon. George Calhoun, judge of the Fifty-Third district, and A. S. Philquist, clerk of the district court of Travis county.

It appears from the petition and exhibits that Mr. Cook filed a petition for mandamus in the district court of Travis county, Fifty-Third district, against the relators in this action and two other named parties, as officers of the city of Austin, seeking a mandamus for the purpose of requiring them in their respective official capacities to call an election to fill certain offices as provided for in the charter of the city of Austin on the first Monday in February, 1925, and for other relevant purposes. This petition was presented to the Honorable George Calhoun, judge of the Fifty-Third district, on the 2d day of January, who set the same for hearing on the 6th of January, 1925, at 2 o'clock p. m. Notice of the hearing was issued and served, and in response to this notice the relators here who contested the application appeared, and after certain proceedings, not necessary to be here noted, a hearing was had in chambers, and on the 8th of January, 1925, a peremptory mandamus was granted against the relators in this action in their respective official capacities. The mandamus required them in effect to do and perform all things directed by the statutes of the state and the charter of the city of Austin necessary to the end that a general election be held in the city of Austin on the first Monday in February, 1925, for the purpose of electing five councilmen, who shall constitute the city council of the city of Austin; and especially requiring —

"and commanding such respondents, and each of them, in their respective official capacities, to forthwith call such election for such date and issue and have posted notices thereof, and at the times when such acts and things are required by law to be done respectively, to select election judges and other officials, designated voting boxes, furnish election supplies, and generally to do and perform all other acts required by law to be done and performed by them in their respective official capacities to the end that such election may be held upon such date."

This judgment was rendered on the 8th day of January, 1925. On the same day, in the same cause, Charles B. Cook filed a petition, wherein he prayed that the judge —

"issue forthwith and immediately a temporary injunction requiring and commanding the said respondents in said mandamus proceeding (naming them) to immediately and forthwith call said election for the first Monday in February, 1925, and immediately and forthwith take all steps and do all things that may be requisite or necessary in order that the said election may be properly and duly held in accordance with law, and further commanding and directing and ordering them forthwith and immediately to carry out, perform, and obey the order and mandate of said writ of mandamus above referred to, until and unless they shall be otherwise ordered by the judge of this court or by some other court having superior jurisdiction."

This petition for temporary injunction, which in its legal effect was a motion for an injunction in the same case, was immediately heard and granted by Judge Calhoun. A bond was required, which was given, and the injunction we presume issued. At any rate, the fiat indorsed on the petition providing for a bond named the respondents there, who are the relators in this action, and said that said respondents —

"are hereby ordered and commanded, until otherwise ordered by the judge of this court, or by this court, or by a court of superior jurisdiction, to proceed without delay to carry out and perform and observe the orders and mandates of said writ of mandamus issued as aforesaid by the judge of this court on the 8th day of January, A. D. 1925."

That proper motion was made, notice of appeal given, and proper supersedeas bond given to supersede the judgment awarding the mandamus, are matters which are not questioned in the proceeding before us. These requisites of the law, in so far as this proceeding is concerned, were complied with by the relators here, who were the respondents in the trial court, in the proceedings we have just described.

The Supreme Court under the Constitution and statutes of this state is clothed with power to exercise both appellate and original jurisdiction. It is unnecessary to discuss the question as to whether or not we have jurisdiction to grant the relief prayed for in the petition under our appellate power, for the reason that we have concluded we may consider the petition under the original jurisdiction conferred on us by the Constitution and statutes.

It is to be noted that the injunction issued by Judge Calhoun is purely ancillary and in aid of the judgment awarding peremptory mandamus. In fact, it may be said that the purpose of the injunction was to require obedience to the mandamus, notwithstanding the fact that the relators might supersede the mandamus judgment on appeal. The petition of Mr. Cook, which expressly stated it was "Proceeding Ancillary" to the mandamus suit, on which the injunction was granted, after reciting that he had been awarded a mandamus against the relators in this case, set forth that unless the writ of mandamus was forthwith complied with, and respondents in that action (relators here) proceed immediately to order the election and take the steps required by law in obedience to the mandamus, the relief granted him by the mandamus judgment would be wholly denied as the result of delay. The petition recited that the relators here had announced, in connection with the mandamus proceeding, their intention to appeal from the order granting the writ of mandamus, and alleged that if such an appeal was taken from the order awarding the writ, the delay necessarily incident thereto would render wholly ineffectual and would totally destroy the effect of the judgment.

The prayer for injunction was consistent with the purposes the petition just stated, and the fiat of the judge indorsed on the petition expressly commands the relators here "to proceed without delay to carry out and perform and observe the orders and mandates of said writ of mandamus."

It is plain that the only purpose and effect of the injunctive order was to enforce and execute the judgment awarding the peremptory writ of mandamus, although the relators should appeal the case and supersede the same.

The writ of mandamus is but the "means" or "execution" to enforce the judgment in favor of those to whom the writ has been awarded. Milliken v. City Council of Weatherford, 54 Tex. 388, 391, 38 Am. Rep. 629; Thorne v. Moore, 101 Tex. 205, 209, 105 S. W. 985; Ency. of Pleading, vol. 20, §§ 1240, 1241.

The statutes of this state (Rev. St. 1911, art. 2101), after making provision for a supersedeas bond, in article 2103 declares the effect of the filing of such bond. It reads:

"Upon the filing of the bonds mentioned in the two preceding articles, the appeal or writ of error shall be held to be perfected, and the execution of the judgment shall be stayed, and should execution have been issued thereon, the clerk shall forthwith issue a supersedeas." (Italics ours.)

It is the settled law of this state that a judgment awarding a peremptory writ of mandamus is within the provisions of the statute quoted, and may be appealed from and superseded. Glenn v. Milam (Tex. Sup.) 263 S. W. 900; Griffin v. Wakelee, 42 Tex. 513. In the last case cited this court said:

"The only question in this case is, whether a judgment of the District Court awarding a peremptory mandamus for the restoration of the plaintiff to an office, can be superseded or suspended by an appeal to this court. This question, we are clearly of opinion, must be answered in the affirmative. Such, we believe, has been the uniform usage and practice in mandamus cases ever since such proceedings as this have been authorized in the district court. * * * It must follow, as no distinction is made by the law authorizing an appeal in this and other cases, that the judgment of the district court may be superseded by an appropriate bond for this purpose, pending the appeal in this court."

This doctrine was adhered to by this court in the case of Churchill v. Martin, 65 Tex. 367, where this court, citing the Griffin Case, supra, said:

"That the execution of a judgment awarding a peremptory writ of mandamus, may be suspended by a proper appeal bond is not an open question in this court."

See, also, 26 Cyc. p. 506; Corpus Juris, vol. 3, §§ 1446, 1448; Ency. of Pleading, supra.

The effect of a supersedeas was reaffirmed in the case of Waters-Pierce Oil Co. v. State, 107 Tex. 1, 106 S. W. 326. The question involved there was not a peremptory writ of mandamus, but whether or not the appointment of a receiver had been suspended by the supersedeas bond upon appeal. This court held that it had been, and, among other things, in an opinion by Justice Brown, after quoting the supersedeas statute, said:

"This is plain language that cannot be construed, because its meaning is as definite as could be expressed to the effect that, when the appellant or plaintiff in error complies with the law, the judgment cannot be enforced...