Schintz v. Morris

Dissenting Opinion. — Being unable to agree with the other members of the court, as to the disposition to be made of this case, it is proper that I should state the reasons for my non-concurrence.

Whether or not this court has both original and appellate, or only original jurisdiction, I do not regard as material, because whatever be the character of its jurisdiction, it should not grant a writ of mandamus in this proceeding, unless the judge has refused to proceed to trial and judgment, and if granted it would only require him to so proceed.

Nor do I deem it necessary to decide whether or not the District Judge erred in the rulings complained of.

Neither is it material if, as contended by counsel for the plaintiff, the judge in granting half and refusing half of the defendant's motion for a new trial of the entire case, pursued a novel and unusual course, not expected by either side.

Mandamus is not available to restrain, correct, or otherwise control judicial eccentricities, unless they result in injuries for which that writ is the appropriate remedy.

My dissent is based upon two propositions of law, either of which, if correct, is sufficient reason for refusing the mandamus. These propositions are: (1) that the rulings complained of involve such judicial discretion as should not be controlled by mandamus; and , (2) the plaintiff has another adequate legal remedy, by appeal.

1. On the first proposition the rule is thus summarized by an approved text writer: "The fundamental principle underlying the entire jurisdiction by mandamus over the action of inferior courts is, that in all matters resting within the discretion of the inferior tribunal mandamus will not lie to control or interfere with the exercise of such discretion. And while the jurisdiction of superior common-law courts over courts of inferior powers, by the writ of mandamus, is well established, it is exercised with the utmost caution lest there should be any improper interference with the exercise of the judicial powers of the court below, and it will only be used in such manner as to leave the inferior tribunal untrammeled in the exercise of the discretionary or judicial powers with which it is properly vested by law. And the rule may be regarded as established by an overflowing current of authority both English and American, that mandamus will not lie to control the exercise of the discretion of inferior courts, and where such courts have acted judicially upon a matter properly presented to them, their decision can not be altered or controlled by mandamus from a superior tribunal.

"And it is important to observe that the rule applies with equal force, regardless of the propriety or impropriety of the action of the inferior court. It is sufficient that the discretion has been exercised, and whether rightly or wrongly exercised, it can not be questioned by mandamus." High on Extraordinary Legal Remedies, sec. 156. This authority is referred to with approval by Chief Justice Willie in Ewing v. Cohen, 63 Tex. 482, where it was held that mandamus would not lie to compel a county court to reinstate a cause appealed from a city court, and dismissed on account of an alleged defective appeal bond and the failure to give notice of appeal; and the Supreme Court held that Cohen was not entitled to a mandamus, although he had no other remedy. Both the text and the case just cited are referred to in the following language by Mr. Justice Brown in State v. Morris, 86 Tex. 229: "In Ewing v. Cohen,63 Tex. 482, Chief Justice Willie, delivering the opinion of the court, quoting from High on Extraordinary Legal Remedies, said: `Mandamus will not lie to control the exercise of the discretion of inferior courts, and where such courts have acted judicially upon a matter properly presented to them, their decisions can not be altered or controlled by mandamus from a superior court.' This rule is amply supported by a large number of cases, of which we cite the following: Little v. Morris, 10 Tex. 263; Sansom v. Mercer, 68 Tex. 492; Commonwealth v. Boone, 82 Ky. 632; State v. McGown, 89 Mo., 156; State v. Smith, 105 Mo., 6; Judges v. The People, 18 Wend., 79; Ex parte Hoyt, 13 Pet., 279; Ex parte Nelson, 1 Cow., 147; The People v. Superior Court, 18 Wend., 575; Ex parte Perry, 102 U, S., 183; Potter v. Todd, 73 Mo., 101."

Justice Brown wrote the opinion in Terrell v. Greene, 88 Tex. 540 [88 Tex. 540] (31 S.W. Rep., 632), which the other members of this court regard as overruling or qualifying the doctrine announced in Ewing v. Cohen, supra, but in the Terrell case he did not refer to nor attempt to overrule or qualify the Morris case. I think the Terrell case is distinguishable from this case. The action of the District Court in that case, in refusing to allow Terrell, the County Attorney, to represent the county in a suit to which the county was a party, did not relate to the merits of the suit, nor in anywise affect the rights of any party to it; but was a ruling on a preliminary and incidental question, raised by one who was in no sense a party to the suit; and, as shown by the opinion, Terrell's right and duty to represent the county was clearly fixed by statute, and he had no other adequate remedy.

In this case the plaintiff, Schintz, embraced in one suit in the District Court both his causes of action; the respondent, as District Judge, called the case for trial, heard the pleadings read, allowed evidence to be introduced, and submitted both causes of action to a jury, who returned a verdict for the plaintiff on one, and for the defendants on the other; and, according to the plaintiff's contention, the judge, on motion of the defendants, set aside so much of the verdict as was against them, and has refused to set aside the remainder thereof, and proposes, at another term of his court, to allow the parties to retry the issues of fact involved in the action for false imprisonment, as to which he granted the rehearing, but will not allow them to retry the issues of fact involved in the action for malicious prosecution, the branch of the case as to which he refused to grant a rehearing, but proposes, after obtaining another verdict upon the issue of false imprisonment, to render a judgment thereon, and at the same time to render a final judgment, based upon the verdict now in the record, upon the issue of malicious prosecution. Now, in my opinion, when the case culminates as above stated, the judge will have "proceeded to trial and judgment," within the meaning of the statute, and the plaintiff will be in a position to have whatever errors may have been committed corrected by appeal, and therefore is not entitled to a writ of mandamus.

It may be that when the judge set aside the verdict on the issue of false imprisonment, he vacated and annulled the entire verdict; but such was not his intention; and, in the further progress of the case in his court, it is his prerogative to decide the status and declare the legal effect of said verdict, or any other part of the record. And if, in the exercise of his discretion as a judge, he decides that so much of the verdict as relates to the issue of malicious prosecution has not been annulled, and can properly be made the basis of a judgment on that issue, and renders judgment accordingly, will not such action on his part, whether proper or improper, in connection with what has already been done in the case, constitute a trial and a judgment? It cannot be denied that both causes of action have been once tried by the court and a jury; and although the result of the subsequent ruling of the judge on the defendant's motion for a new trial may have been to annul the entire verdict, still, if he holds otherwise and proposes to render a judgment on said verdict, I do not think a mandamus should issue to control his discretion and compel him, in deciding whether or not the verdict referred to has settled and concluded the rights of the parties, to substitute the judgment of this court for that judgment which the law contemplates shall flow from his own mind and conscience — his own judgment.

Suppose the judge had granted the last motion made by the plaintiff, asking him to vacate the order refusing to retry the issue of malicious prosecution, and the defendants, Hume and Tobin, had pleaded the former verdict as a bar to the plaintiff's right to recover on said issue, and it was made to appear, to the satisfaction of this court, that the judge would permit the plaintiff to read his pleading and introduce his evidence, and would then instruct the jury that the former verdict was a bar to the action for malicious prosecution, and direct them to return a verdict for the defendants? Under such circumstances would this court grant a mandatory writ to prevent the court below from pursuing that course? I presume not; because to do so would be to control the judge in the manner of trial. But what substantial difference is there in the case at bar and the case stated? It is true that in the supposed case there would, in form, be a retrial on the facts; but such retrial would be in form only, because it, like the other case, would be controlled by the effect given by the judge to the former verdict, and the result in each would necessarily be the same.

The court below has not refused to exercise jurisdiction over the case. On the contrary, it has exercised jurisdiction and proposes to continue to do so until a final judgment is rendered on all the issues involved. And that is the object which I think the statute authorizing this court to issue mandamus against district judges was intended to accomplish.

2. But if I am wrong in my views on the first proposition, I am well satisfied that the mandamus should not be granted, because the relator has another adequate legal remedy.

That mandamus is a last resort, and will not be awarded when the law affords any other sufficient mode of redress, is a well settled proposition. It has been repeatedly so ruled in this State. Cullem v. Latimer, 4 Tex. 330; State v. Morris,86 Tex. 227; Steele v. Goodrich and Wallace,87 Tex. 401.

By combining the two causes of action in one suit the plaintiff has indicated his willingness to have them both disposed of by one final judgment, as required by statute, and to avail himself of his right to appeal from such final judgment for the correction of errors prejudicial to him. And such being the case, I see no sufficient reason for holding that because no judgment from which an appeal can be prosecuted has yet been rendered, therefore the remedy by appeal is not adequate. If the court had erroneously sustained a demurrer to that part of the petition seeking a recovery for malicious prosecution, the plaintiff could not have appealed and had the ruling on the demurrer revised until after the other issue was tried and a final judgment rendered. And it seems to me that such remedy by appeal as has been provided by the Legislature as an adequate remedy to correct such an error as this illustration involves, ought to be held an adequate remedy for the errors of which the plaintiff is now complaining.

A judgment based on the verdict in the record, although rendered at a term subsequent to the rendition of the verdict, will not, in my opinion, be absolutely void, but only voidable; and whatever errors may have been committed in reaching such a judgment may be corrected on appeal therefrom.

ON MOTION FOR REHEARING.