Morse v. Scott , 1939 Tex. App. LEXIS 264 ( 1939 )

Relators, H. H. Morse and Mark McMahon, as trustees and independent executors of the last will and testament of Mrs. Elizabeth Scott (she having died on Sept. 20, 1938), applied to this Court for a writ of prohibition against Honorable W. L. Thornton, Judge of the 44th Judicial District Court of Dallas County, and an injunction against Mrs. Jessica Patterson Scott. The origin and nature of the proceedings, are these: On November 12, 1937, Jessica Patterson Scott filed in the District Court of Dallas County a suit for divorce against Winfield Scott, Jr., and, after setting up grounds for divorce, alleged that, she was without means of support, or an adequate home, had been forced to incur debts and liabilities for necessaries, claiming that she was entitled to alimony pending the suit and allowance of a reasonable amount as attorney's fees; she also alleged that, on February 20, 1925 (about six years before their marriage), her husband executed and delivered to his mother, Mrs. Elizabeth Scott, a deed conveying to her all his estate, both real and personal, including in said conveyance approximately 11,535 acres of land, lying partly in Tarrant and partly in Johnson Counties, commonly known and referred to as the "Scott Ranch", situated near Winscott, Texas, giving a general description of the lands and referring to the book and page of the deed records of Tarrant County, where the deed is recorded; that said conveyance was only in trust, the grantee therein, Mrs. Elizabeth Scott, agreeing to hold the properties conveyed for the use and benefit of the grantor, Winfield Scott, Jr., and to turn over to him all rents and revenues received from said properties and finally to reconvey the same to him.

Plaintiff made Mrs. Elizabeth Scott a party defendant to the divorce action, alleging that she was collecting and retaining the rents and revenues derived from said properties conveyed to her by her son, and refused to apprise plaintiff of the nature and extent of said holdings, concluding with a prayer to the effect that, pending suit, the defendant, Winfield Scott, Jr., be ordered to file an inventory of the properties owned by him; that he be ordered to pay into the registry of court, as alimony, $1,000 per month for plaintiff's support; that, on final trial, Elizabeth Scott be declared a trustee of said properties so conveyed to her, holding same for the benefit of her son, the defendant, Winfield Scott, Jr.; that plaintiff be granted a divorce and a division of the community property, be allowed reasonable attorney's fees, and that the separate property of Winfield be charged for the benefit of plaintiff, in such an amount as the court may deem reasonable.

The defendants filed separate pleas of privilege to be sued in Tarrant County, where they resided and where the larger portion of the real estate is situated. These pleas were contested by the plaintiff and, on hearing, were overruled by the trial court, and appeals, by both parties, were perfected therefrom to this Court. On original submission, we affirmed the judgment of the trial court, but, on rehearing, while adhering to the decision as to Winfield Scott, Jr., a majority of the Court concluded that the trial court was in error in overruling the plea of privilege by Mrs. Elizabeth Scott, and that this Court erred in affirming the judgment as to her; hence, the majority concluded that, her motion for rehearing should be sustained; that the former judgment of this Court be set aside and judgment here rendered, sustaining her plea of privilege and transferring the cause for trial to a court of competent jurisdiction of Tarrant County. Tentative opinions having been filed, we certified to the Supreme Court, for adjudication, the questions of law involved, which were answered to the effect that Mrs. Elizabeth Scott was not a necessary party to the action by Mrs. Jessica Patterson Scott against Winfield Scott, Jr., and that Mrs. Elizabeth Scott could not be compelled over her plea of privilege to defend the action in the district court of Dallas County, thus sustaining the opinion of the majority; thereupon, on February 4, 1939, in harmony with the adjudication by the Supreme Court, we sustained the motion for rehearing filed by Mrs. Elizabeth Scott, set aside our former judgment affirming the judgment of the trial court as to her, reversed the trial court and rendered judgment sustaining her plea of privilege, changed the venue of the cause to a court of competent jurisdiction of Tarrant County, and directed the clerk of the court below, in consummating the change of venue, to be guided by the provisions of article 2020, R.C.S., Vernon's Ann.Civ.St. art. 2020. See Ex Parte Scott, Tex.Sup., 123 S.W.2d 306 and Id., Tex. Civ. App.126 S.W.2d 525.

Although our mandate issued and was filed below on April 5, 1939, a transcript of the orders of court and the original papers in the case, as to Mrs. Elizabeth Scott, had not been made up and sent to the clerk of the district court of Tarrant County on April 25, 1939, when plaintiff filed in the court below her second amended original petition, retaining as a nominal defendant (although deceased at the time) Mrs. Elizabeth Scott, reiterating the allegations of her original petition, except she alleged that, the "Scott Ranch" properties belonged to the community estate of plaintiff and Winfield, Jr., her prayer, however, being substantially for the same relief sought in her original petition, praying specifically that, defendant Elizabeth Scott, her administrators, executors, trustees and assigns be decreed to be trustees for defendant Winfield Scott, Jr., holding for his use and benefit said properties, and "that this Honorable Court appoint a receiver to take charge of said property herein-before described as the ``Scott Ranch', together with all improvements and livestock on said ranch, to operate the same, to collect the rents and revenues therefrom, to take charge of the profits derived therefrom, under such orders as this court may at this time and from time to time hereafter direct, and that a sufficient amount of the proceeds derived therefrom be used to liquidate or pay off the alimony accrued and owing to this plaintiff under the order of this court made the 20th day of January, 1938, and such future sums as may become due until final determination of this cause, and that this court issue such orders as are proper and necessary, fully authorizing said receiver to take complete charge and possession of said property known as the Scott Ranch, with improvements and livestock thereon, as hereinbefore described and the operation thereof." The court set the hearing on the application for the appointment of a receiver, for May 6, which was later reset for May 13, 1939.

On May 8, 1939, plaintiff filed a motion in the court below to dismiss the cause as to the defendant Mrs. Elizabeth Scott, which was sustained, and by order entered (date of the order not disclosed by the record), the cause was dismissed as to Mrs. Elizabeth Scott, without prejudice. In this connection, the district clerk certified that she had not transmitted to the clerk of the district court of Tarrant County copies of the orders of court and the original papers in the cause as to Mrs. Elizabeth Scott, as provided by art. 2020, R.S.

In this situation, on May 8, 1939, the Relators, H. H. Morse and Mark McMahon, in their capacities as independent executors and trustees under the last will and testament of Mrs. Elizabeth Scott, deceased, filed in this court an original application, alleging all the material precedent facts, seeking the issuance of a writ of prohibition against Hon. W. L. Thornton, Judge of the 44th Judicial District Court of Dallas County, and a writ of injunction against Mrs. Jessica Scott, prohibiting the District Judge from hearing, passing upon, or adjudicating any part of the cause of action asserted in said pleadings as against Mrs. Elizabeth Scott, her executors and trustees, and from entertaining and hearing the application for appointment of a receiver for the properties described as the "Scott Ranch", and from entering any orders in said cause in relation to the cause of action asserted by Mrs. Jessica Scott against Mrs. Elizabeth Scott, deceased, or as against her executors and trustees, and seeking to enjoin Mrs. Jessica Scott from further prosecuting in the 44th Judicial District Court of Dallas County, as against Mrs. Elizabeth Scott, deceased, or her executors and trustees, the cause of action, or any part thereof, theretofore asserted against her, and from further prosecuting the application for the appointment of a receiver for the "Scott Ranch" properties.

The contention of relators is, in effect, that, in applying for the appointment of a receiver of the "Scott Ranch" properties, vested with power and authority to take charge, operate, manage, control same, and collect rents and revenues therefrom, Mrs. Jessica Scott is seeking to have the court below take cognizance of and assert jurisdiction over a part of the cause of action, venue of which heretofore has been adjudicated against her and changed to the district court of Tarrant County; therefore, Relators pray that Mrs. Jessica Scott be enjoined from the further prosecution of the application for the appointment of a receiver in the district court of Dallas County, as the appointment of a receiver, with authority as prayed, that is, to take possession, manage, and collect rents and revenues from said properties, in effect, would be to wrest said properties from the possession and control of the representatives of the estate of Mrs. Elizabeth Scott, without an adjudication in a court of proper venue as to the legal right to do so, hence, in effect, would be to circumvent and defeat altogether the judgment of this Court changing the venue of said cause to the district court of Tarrant County; and for the reasons stated, Relators seek a writ of prohibition against Hon. W. L. Thornton, prohibiting him from taking further cognizance of or hearing plaintiff's said application for the appointment of a receiver.

The allegation of plaintiff's second amended petition, to the effect that the Scott Ranch is the community property of plaintiff and her husband, Winfield, Jr., is, in our opinion, simply a conclusion. No fact or facts are alleged showing that, the property or any part thereof was acquired during their marriage; on the contrary, the showing indubitably is that the legal title to the Scott Ranch lands was in Mrs. Elizabeth Scott for more than six years prior to the marriage of Jessica and Winfield, Jr., and, at this time, rests in the estate of Mrs. Elizabeth Scott.

Notwithstanding venue of the cause, for trial on its merits, had been changed to a court of proper jurisdiction of Tarrant County, we are of opinion that plaintiff therein had the legal right to dismiss her cause of action as to Elizabeth Scott (in effect, as to her estate) in the district court of Dallas County, as was done, without complying with the useless and expensive procedure of first having the clerk of the court below send to the district clerk of Tarrant County, certified copies of the orders of court and the original papers in the case. The following authorities, in our opinion, sustain the proposition: 43 Tex.Jur., Sec. 80, p. 807; Collins v. Herd, Tex. Civ. App. 295 S.W. 216; Atlantic Oil etc. Co. v. Jackson, 116 Tex. 570, 296 S.W. 283; Cooper v. Colorado etc. Co., Tex. Civ. App. 298 S.W. 612, 613; Watson Co. v. Cobb Grain Co., Tex.Com.App., 292 S.W. 174, 177; Rex Refining Co. v. Morris, Tex. Civ. App. 72 S.W.2d 687, 689; First National Bank v. Hannay,123 Tex. 203, 67 S.W.2d 215; Gladden v. Thurmond, Tex. Civ. App.77 S.W.2d 703.

However, as the judgment of this court definitely adjudicated the right of Mrs. Elizabeth Scott (hence the right of the representatives of her estate), to have the issues as to the ownership and right to the possession, control, etc., of the Scott Ranch properties tried in a court of proper jurisdiction of Tarrant County, that matter became res adjudicata and cannot now be disturbed or circumvented by formally dismissing the cause as to Mrs. Elizabeth Scott in the court below, yet persisting in the effort to get control of the property without an adjudication, by having a receiver appointed, vested with the authority as hereinbefore set out; thus seeking to accomplish indirectly what she had been forbidden to do directly.

A receiver of the Scott Ranch properties could not be appointed, except on the assumption that they belong either to Winfield Scott, Jr., in his separate right, or to the community estate of the spouses. The appointment, based on either assumption, with authority to take possession, under the orders of court, and manage, control and collect the rents from said property, necessarily would obstruct and interfere with our judgment — in effect, would circumvent and defeat it altogether.

That this Court is fully authorized to prohibit any proceeding that frustrates, interferes with, or that tends to defeat the enforcement of its judgment, until completely executed, is undoubted. See City of Palestine v. City of Houston, Tex. Civ. App. 262 S.W. 215; Hovey v. Shepherd, 105 Tex. 237, 147 S.W. 224; Conley v. Anderson, Tex.Sup.,164 S.W. 985.

In Hampton v. Williams, 8 Cir., 33 F.2d 46, 47 (an original application for prohibition), the Circuit Court of Appeals, through Circuit Judge, Stone, said: "Respondents contend that transfer under this section is a question only of venue and not of jurisdiction. A question of venue may ripen into one of jurisdiction. If a controlling statute provides that upon the occurrence or doing of certain things the venue in one court shall cease and that of another shall begin, such happening or performance takes jurisdiction away from the one court and lodges it in the other to the extent contemplated by the statute and any attempt by either court to act therein beyond such limits is in excess of its existing jurisdiction and may be prevented by the writ of prohibition." To same effect, the Supreme Court of Washington, in State ex rel. Rucker v. Stallcup, 11 Wash. 713, 40 P. 341, said: "Where defendant is entitled to have the action tried in the county of his residence, having complied with the statutory provisions necessary to entitle him to such removal, the court will be prohibited from proceeding further in the case, except to cause it to be certified in the proper county."

If it be said that Relators have an adequate remedy, in that, if a receiver is appointed and should attempt to take possession, control and management of the Scott Ranch properties, as prayed, Relators could apply to a court of proper jurisdiction for a writ of injunction to restrain such action on the part of the receiver, we agree that such remedy would exist, but, in our opinion, it would prove wholly inadequate. We do not think Relators should be put to the expense, trouble and incidental delay of prosecuting other actions, simply to vindicate the conclusiveness of the litigation already had. In 50 C.J., Sec. 56, p. 682, the doctrine is announced that prohibition may be granted notwithstanding the existence of another remedy: "Thus, if the proceedings complained of are clearly beyond the jurisdiction of the inferior court or tribunal, and must ultimately be held to have been mistaken, prohibition should issue before the party aggrieved is put to the difficulties that would be raised, and the court to the inconvenience that would ensue, by permitting such proceedings to continue." Also, in Section 57, p. 683, it is said: "Prohibition may issue notwithstanding another remedy for the grievance complained of is available if such other remedy would not afford complete and adequate relief. To be adequate the concurrent remedy must be sufficient to afford the relief the case demands. * * * The court may properly consider the expense involved in the prosecution of other remedies, or the delay or inconvenience incident thereto. The fact that the action complained of is about to be taken in violation of express statutory provisions may be considered."

So, we conclude that Relators are entitled to the relief sought, therefore the writs of prohibition and injunction will issue as prayed, and it is so ordered.