Morse v. Scott

This is an original application in this Court for a writ of prohibition against an official of this state, a district judge, whose acts in the premises complained of are necessarily guided and controlled by the Constitution and laws of this state, reviewable, as I interpret the law, only after trial, on appeal by an aggrieved party to the action. It cannot be assumed that a district judge will knowingly do an unlawful act, in appointing a receiver to exercise plenary powers over, take charge of, and administer property belonging to one not a party to the suit, without his day in court, and against whom no complaint is made by the complaining party. A district judge has statutory and inherent rights, as a trial court, to hear and determine the merits of a controversy between parties to a suit, and render such judgment as, in his opinion, is warranted under the law and facts adduced on trial. Errors in judgment may well be expected; it would be unnatural if such did not occur in the discharge of official duties. The statute recognizes imperfection in granting to aggrieved parties the right of appeal.

Appellate courts are without jurisdiction to stay the hand of a district judge in the discharge of official duties; any attempt to do so would be a usurpation of power. The jurisdiction of the courts of civil appeal is appellate and, until a trial court has committed, or threatened to commit an act beyond its jurisdiction, appellate courts have no authority to enjoin or prohibit an orderly trial and rendition of judgment on law and facts. Such is the province of a trial court and cannot be taken away or abridged in the manner here suggested. Until the Legislature has enacted a statute, in conformity to the Constitution, conferring such authority upon appellate courts, I shall content myself with the law as written, conceiving it to be the duty of this Court to decide appeals after other agencies of the state have fully determined the controversial fact issues.

The respondent, Jessica Patterson Scott, filed in the District Court of Dallas County, presided over by the Honorable W. L. Thornton, suit for divorce against Winfield Scott, Jr., alleging sufficient facts, if sustained by proof, to authorize the granting of a divorce; and, further alleging that her husband owned, in his own right, a vast estate consisting of lands and personal property, worth approximately $1,000,000, in which she claims a vested and contingent interest. She originally vouched into the suit Elizabeth Scott, as claimant to the property under deed from Winfield Scott, Jr., regular in form, but which was, in fact, a trust arrangement for the use and benefit of Winfield Scott, Jr., husband of plaintiff. The merits of that controversy are yet to be tried in courts having jurisdiction of the cause and venue of the parties.

The defendants interposed pleas of privilege, which, on hearing, were overruled by the trial court. The present action demonstrates to my mind that the trial court correctly held venue of the cause in the related action to enable plaintiff to get full relief in the cause alleged. This conclusion is sustained in a recent case of Pioneer Building Loan Ass'n v. Gray, Tex.Com.App., 125 S.W.2d 284, 287, by Judge Hickman, adopted by our Supreme Court, in which is held that every party whose joinder is necessary to secure full relief, is a necessary party to the action.

It will be noted in the above cited case that a third party, Gray, claimed an interest in land which plaintiff sought to recover by foreclosure proceedings against another. All claimants to the land were made parties to the suit. Such was the Scott case: Plaintiff sought to establish and recover her marital rights, or liens, on lands alleged to belong to her husband, and claimed by a third party, Elizabeth Scott. To secure "full relief", as in the Gray case, supra, plaintiff vouched into the suit all parties claiming an interest in the land. In the Gray case, the Supreme Court held that the third party, claiming the land, was a "necessary party" to the action, to enable plaintiff to secure "full relief"; whilst, in the Scott case, the court held that the third party was not a "necessary party". In the Gray case, the court said: "In the case at bar the plaintiff had the absolute right, as against the mortgagors, under subdivision 5 of Article 1995 [Vernon's Ann.Civ.St.], to maintain a suit upon its note and to foreclose its lien in McLennan county. In order to secure that right and make fully effective a decree of foreclosure, Gray was a necessary party. Without his presence in the suit no effective decree could be entered enforcing the rights which appellant had under his contract with the mortgagors. Limited relief could be obtained against the executrix alone, but not that character of relief to which appellant was entitled under its contract. If, for instance, the mortgagee should become the purchaser at the foreclosure sale against the executrix alone, it would merely acquire the right to pursue the property in the hands of Gray by an action of foreclosure against him. No writ of possession good as against Gray, the party rightfully in possession, could issue under a judgment of foreclosure and order of sale in an action to which he was not a party. In short, no effective decree could be rendered enforcing the substantial rights acquired by appellant under its contract and secured to it by subdivision 5. Only by abandoning some of the substantial rights granted it by that subdivision could it avail itself of the benefits of subdivision 29a, if that subdivision is to be given the narrow construction insisted upon by appellee. We do not ascribe to the Legislature an intention to enact a statute of such limited operation. Rather, we think it was clearly its intention to preserve to a plaintiff every substantial right given him under all of the other subdivisions of Article 1995 by permitting him to join as parties defendant all persons necessary to the enforcement of his full cause of action. The very language of subdivision 29a compels that construction. In effect it provides that, if a suit is lawfully maintainable in a county where it is filed as against one of the defendants, then `such suit' is maintainable in such county against any and all necessary parties thereto. The clear meaning of that language is that a plaintiff may maintain against all necessary parties the same suit which he may maintain under any other exception of Article 1995 against any one party, and every party whose joinder in the suit is necessary to the securing of full relief in `such suit' is a necessary party in the sense that term was used in subdivision 29a. More specifically stated, as applicable to the case before us, appellant has the right, as against the executrix, to maintain venue in McLennan county and, if successful in the suit, to have an order of sale with the force of a writ of possession issued. By exception 29a he is entitled to join every party in the suit whose presence therein is necessary to the securing of that same effective relief. Gray is such a party, and is therefore properly joined under exception 29a."

By analogy, if Gray was a "necessary party" in the cited case to enable the plaintiff to get effective relief, then why was not Elizabeth Scott a "necessary party" to enable Jessica Patterson Scott to get full relief in her suit? The Gray suit was maintainable against the mortgagors under subdivision 5, Article 1995; and the Scott case, a divorce suit and contingent rights, was maintainable under subdivision 16, Article 1995, in the county where the suit was brought.

On appeal from the judgment overruling defendants' pleas of privilege, this Court, by a majority opinion (Scott, et al. v. Scott, Tex. Civ. App.126 S.W.2d 525, 530), affirmed the judgment of the trial court as to Winfield Scott, Jr., holding venue as to him, and the property involved, in Dallas County; and, as to Elizabeth Scott and her claim to the same property, the venue was changed to Tarrant County. Venue alone was involved in that appeal, and it will be seen that, in the opinion, Judge Looney, speaking for the majority, after reviewing authorities, said: "* * * as between the spouses the court may adjudicate their rights in or to the property so held or claimed by another, and that such a decree would be binding upon all persons, except the third party allegedly holding or claiming the property, and as to him, the spouse in whose favor a decree is rendered could proceed in a court of proper venue to have title to the property so held, adjudicated." Concurring in the opinion, Judge Young also said: "All of plaintiff's demands against Winfield Scott, Jr., canbe established by a judgment for whatever amounts the facts may warrant,without prejudice to any right to a later recovery of plaintiff'scommunity interest, as fixed in such judgment, if in the possession of athird party. 15 Tex.Jur. (Divorce) Sec. 136, page 626; Whetstone v. Coffey, 48 Tex. 269." (Italics mine.)

Why, in the Gray case, is one suit maintainable against all adverse parties, and in the Scott case two suits are necessary; one against Winfield Scott in Dallas County, and another against Elizabeth Scott in Tarrant County, before Jessica Patterson Scott, plaintiff in the suit, could get full relief in her suit, if sustained by proof? In the language of Judge Hickman in the Gray case: "We shall not undertake to demonstrate that these opinions may or that they may not be fully harmonized. In each of these cases suit was brought in the county of the domicile of one defendant and venue was governed by exception 4, and no intent to overrule the opinion in the Heid Bros. case [Commonwealth Bank Trust Co. v. Heid Bros.] [122 Tex. 56, 52 S.W.2d 74, 75.] appears in the opinion in the Pierce case [First Nat. Bank of Dallas v. Pierce,123 Tex. 186, 69 S.W.2d 756]". So here, I will not attempt to demonstrate the inharmonious holdings in the Gray case and the Scott case.

The plaintiff, Jessica Patterson Scott, bowed to the decision of the majority, and on return of mandate, dismissed her suit as to Elizabeth Scott, thus abandoning for the time the action against said defendant and her property, as plaintiff had a legal right to do; and, thereafter, with leave of the court, filed an amended petition alleging, among other things, that "the 11,535 acres of land known as the `Scott Ranch' was the separate and community property of herself and the defendant, Winfield Scott, Jr., and that the improvements and livestock thereon were community property of the spouses." She also alleged in the amended petition sufficient grounds for the appointment of a receiver to take charge of the property, if sustained by proof. Plaintiff's right in the property, and the appointment of a receiver, are contingent on proof that the property is impressed with the claims of the plaintiff, to be determined by the Honorable W. L. Thornton, Judge of said Court. It must be presumed that that Honorable Court will require proper proof of plaintiff's right to a receiver to take charge of property found to belong to Winfield Scott, Jr., and to exercise such authority over it as the trial court may, in his discretion, order. It is not within the power of this Court to prejudge the action of the trial court, or the scope of authority with which the court may clothe his receiver, if, forsooth, one should, in fact, be appointed, after an orderly legal trial.

Indeed, plaintiff alleges in general terms that the "Scott Ranch" is the separate and community property of plaintiff and defendant, a conclusion of the pleader; but, when has it ever come to pass that one, not a party to the suit, can raise the question as to the generality of plaintiff's petition? It has always been held that general allegations, in the absence of special exceptions, will support introduction of testimony showing the full strength of plaintiff's demand.

The relators herein, H. H. Morse and Mark McMahon, legal representatives of the estate of Elizabeth Scott, deceased, are not parties to the suit of Jessica Patterson Scott against her husband. So, it is not within their power to interpose objections to the form and manner of the pleadings against defendant, Winfield Scott, Jr. They are not aggrieved parties to any action now pending, or threatened action to involve their rights. The record here shows that Winfield Scott, Jr., is a fugitive from civil justice, having been legally condemned by the courts of this state for violation of the orderly processes of the trial court. The respondent, Jessica Patterson Scott, seeks appointment of a receiver of Winfield Scott's land, to protect her interest therein, and to enforce the due orders of the court made against him. I think she should have a right, at least, to the privileges of trial on the issues raised in her pleadings, without intervention of any injunctive order of this Court which, in effect, holds, without trial before any fact finding agency, that the legal title to the land is in Elizabeth Scott's estate. It is clear that, should a receiver be appointed, after hearing, appeal by an aggrieved party lies to this Court; or, if the receiver thus appointed takes possession, or attempts to do so, of property belonging to the estate of Elizabeth Scott, a remedy by injunction is available to the relators, on application to a court having jurisdiction — a clear and adequate remedy at law.

Finding myself unable to agree with my associates on the application here presented, I respectfully enter my dissent.