196 S.W.2d 53 | Tex. App. | 1946
This is an original proceeding instituted in this Court by an application for a writ of prohibition filed by the relator, Earl Clark, in which he seeks a writ of prohibition against the respondents, Honorable W. R. Ewing, Judge of the District Court of the 31st Judicial District, and Ed Puls and his wife, Cynthia M. Puls, restraining and prohibiting Puls and his wife from further prosecuting cause number 932 filed by them *54 in the District Court of Lipscomb County and prohibiting the District Judge from entertaining further proceedings therein.
The grounds alleged in the application are that on July 8, 1942, the City of Booker filed in the District Court of Lipscomb County a suit against Ed Puls for delinquent taxes and to foreclose its tax lien; that it made Lipscomb County and other taxing units parties to the suit and that final judgment was entered therein on the the 30th of March, 1943; that in the tax suit judgment was rendered against respondent, Ed Puls, for the sum of $3541.23, being the aggregate of delinquent taxes then owing by him to the City of Booker and the other taxing units, and the respective tax liens were foreclosed. It is alleged further that respondent, Puls, did not appear in the tax suit; that after the judgment was rendered the Clerk of the District Court issued an order of sale under which the sheriff advertised and sold outlots one, two, eight, and nine of the City of Booker and they were purchased by relator at the sheriff's sale upon his bid of $3600; that the amount of his bid was paid to the sheriff, and a deed conveying the property to him was executed and delivered by the sheriff and immediately placed of record in the deed records of Lipscomb County. Relator further alleges that on the 16th of March, 1945, the respondent, Cynthia M. Puls, joined by her husband Ed Puls, instituted a suit in the District Court of Lipscomb County in cause number 916 in which they alleged that outlots one, two, eight, and nine constituted their homestead and that Cynthia M. Puls was not a party to the tax suit number 864; that the judgment entered in the tax suit included taxes on personal property and poll taxes which were not charges against their homestead; that the judgment in the tax suit, the order of sale, the sale, and the sheriff's deed were therefore void and they prayed that the sale and sheriff's deed be canceled and held for naught; that the cloud upon the title of the homestead property be removed and that they recover the same. Relator further alleges that a trial of cause number 916 resulted in a judgment in favor of the respondents, Cynthia M. Puls and her husband, but that relator perfected an appeal therefrom to this Court where, in cause number 5699 reported in
In their return the respondents allege that the collateral attack made by Cynthia M. Puls and her husband in cause number 916 in the District Court of Lipscomb County upon the judgment in the tax suit number 864 was not conclusive of the cause of action filed by them in which the temporary restraining order was issued and the hearing upon the application for a temporary injunction was set for a later date, *55 because the collateral attack in that cause was in fact no remedy to which they were entitled and was a misconception of the legal remedy that was available to them. They contend therefore that they are not precluded from seeking in a subsequent suit the relief to which they are legally entitled. They contend further that the attack made by them in cause number 916, being a collateral attack upon the former judgment in the tax suit, is not conclusive of the suit they now seek to prosecute wherein they are making a direct attack upon the sheriff's sale because under the law a collateral attack upon a judgment as being a nullity is not conclusive of a direct attack upon an irregular sheriff's sale. Further than these allegations or cross-assignments the respondents do not controvert the allegations of the relator.
In the case of Clark v. Puls,
Neither the writ of prohibition nor any other extraordinary writ will be granted where there is an adequate remedy provided by law, such as an appeal or writ of error. Where these ordinary remedies are complete and adequate, it is consistently held that the extraordinary jurisdiction of an appellate court cannot be invoked. Buvens v. Robison, Land Commissioner,
It is well settled that under our Constitution and statutes the power of a court to enforce its jurisdiction does not include authority to prevent the prosecution of any suit to which a judgment of the court may be an effectual bar. If such a suit makes no attempt to disturb its jurisdiction or to interfere with the exercise of rights secured by a final judgment entered by the court whose powers are invoked, such a suit does not conflict with the exercise of the power which constitutes jurisdiction in the court and therefore does not violate its jurisdiction. In the case of Milam County Oil Mill Co. v. Bass,
"The assumption of such right would invest a court not merely with the control of its own judgments and authority to enforce its jurisdiction, but with a further power to govern other courts in the exercise of their lawful jurisdiction; and the result would be that the issue of the conclusiveness of a judgment upon what is urged as a distinct cause of action could never be determined except by the court that rendered it. The proper test of the question therefore is, not whether the suit recognizes or repudiates the effect of the judgment, since that does not necessarily involve the jurisdiction of the court, but whether it amounts to an interference with its due enforcement and therefore invades a jurisdiction, it is forbidden to trench upon."
It is entirely possible, of course, that the repeated filing of law suits upon the same cause of action can proceed to the extent that they interfere with the jurisdiction of an appellate court and with the execution of its judgment, and in such case a writ of prohibition will issue, but it is issued upon the ground provided by the Constitution and statutes pertaining to enforcement of jurisdiction and not upon the ground that res judicata constitutes a defense to the suits filed after the first one has been finally determined. Hovey v. Shepherd,
In view of what we have said and the authorities above cited we conclude that, under the conditions here presented, this Court is not authorized to grant the writ of prohibition applied for upon the ground that the cause filed in the court below sets up the same cause of action as that which has been finally litigated and determined by the judgment of this Court.
When it comes to a consideration of the act of the respondents, Puls and wife, in presenting to the court below a petition for an injunction, and the court's favorable action thereon by granting a temporary restraining order against the sheriff and the relator, enjoining and restraining the immediate exercise of the rights secured to the relator under the judgment of this Court in the case of Clark v. Puls, supra, quite a different matter is presented. By presenting the petition to the District Judge and his granting a temporary restraining order against the exercise of those rights by the relator, and setting the case for a hearing upon the application for a temporary injunction, the jurisdiction of this Court was invaded and the proper enforcement of its judgment was prevented. Under such conditions this Court is not only empowered by the Constitution and statutes of this State to issue a writ of prohibition but it clearly becomes its duty to do so. Farrell v. Young, supra; Browning-Ferris Machinery Co. v. Thomson, Tex. Civ. App.
In accordance with what has been said, the Clerk of this Court is directed to issue a writ of prohibition directed to the respondents, Ed Puls and his wife, Cynthia M. Puls, and to Honorable W. R. Ewing, Judge of the District Court of the 31st Judicial District, directing the District Judge to vacate the restraining order issued in cause 932 on the docket of the District Court of Lipscomb County and restraining him and his successors in office, or any other judge presiding over said court, from entering any other or further order in the cause or otherwise which would interfere with the proper execution of the judgment of this Court in cause number 5699 on the docket of this Court, entitled Clark v. Puls, mandate in which has been duly issued and filed in the District Court. The writ will restrain the other respondents from instituting any *57 other suit for injunction or other process challenging the right of the relator to proper judicial process for the enforcement of said judgment.
The entire costs of this proceeding will be adjudged against the respondents, Ed Puls and his wife Cynthia M. Puls. Since the District Judge acted in a judicial capacity, no costs will be adjudged against him.