74 S.W.2d 297 | Tex. App. | 1934
The instant suit was filed in the district court of Haskell county by the defendants in said judgment to enjoin the sale under authority of chapter 16, p. 42, General and Special Laws, 43d Legislature, Second Called Session (Vernon's Ann.Civ.St. art.
Submission of the case in this court was advanced upon the supposition that the appeal was from an interlocutory order granting a temporary injunction, R.S. 1925, art. 4662. The appeal is in fact from a final judgment. The injunction is not temporary in the ordinary sense that it operates only until final judgment on the merits of the case. See Hamner v. Headrick (Tex.Civ.App.)
Appellant made three contentions in the trial court, which, being overruled, are renewed in this court as grounds for reversal of the judgment. It is insisted, first, that R.S. 1925, art. 4656, required that the writ of injunction, being one to stay proceedings in the district court of Dallas county, should have been made returnable to, and tried in, that court; second, that said act of the Legislature (which may also be referred to as the moratorium statute of 1934, or Senate Bill No. 3 [Vernon's Ann.Civ.St. art.
In so far as the first question may involve a mere construction of said moratorium statute of 1934, apart from any question of the constitutionality of said act, we are of the opinion that the trial court was by the terms of the act given jurisdiction to hear and determine the case. The statute provides: "* * * When a sale of real property under execution or order of sale is threatened the Judge of the District Court of the county in which the land or a part thereof is situated, or the Judge of the Court from which the execution or order of sale is issued, upon presentation of a verified petition embracing" certain allegations "may in his discretion issue an order temporarily restraining the sale under the * * * order of sale or execution. In such cases the Judge shall set for a hearing on the petition within ten (10) days from the date of the restraining order and shall cause notice to be given to the parties against whom complaint is made in the manner now provided by law, andupon such hearing, if the allegations in the petition are found to be true, the Judge may, in his discretion, grant a temporary injunction restraining the sale for a reasonable time, not beyond Feb. 1, 1935."
Section 3. (Italics ours.) It is clear that the last sentence quoted, although it denominates the injunction as "temporary," deals with an injunction to be granted or refused upon hearing, and the powers thus granted constitute the full extent of the powers granted to any court or judge under the provisions of the act. If the statute be valid, it necessarily supersedes R.S. 1925, art. 4656, providing that: "Writs of injunction granted to stay proceedings in a suit, or execution on a judgment, shall be returnable to and tried in *299
the court where such suit is pending, or such judgment was rendered," etc. If the constitutional power of the Legislature be granted to enact a law giving one court or judge jurisdiction to stay proceedings in another court of co-ordinate jurisdiction, then we think it must be held that the Legislature has by this act clearly done so. The San Antonio Court of Civil Appeals in the Dallas Joint Stock Land Bank v. Ray,
A majority of the court are of the opinion that, in view of our conclusion upon the third question, that the appellant the Dallas Joint Stock Land Bank was in no event subject to the provisions of the law in question, it is improper for us to pass upon the constitutional questions presented. Appellant raises two constitutional questions: (1) Whether said provisions are constitutional which attempt to give the district judge or court of the county in which the land may lie jurisdiction to hear and grant an injunction staying proceedings in a suit pending in another court, or execution issued out of another court. (2) Whether said act is unconstitutional as impairing the obligations of contracts. The majority view is that, when we have determined that appellant was exempt from the operation of the act, its status is to be regarded the same as one having no interest in the constitutional questions. 12 C.J. p. 760, § 177; 9 Tex.Jur. p. 467, § 50.
Said moratorium statute of 1934 (section 3) provides that: "The provisions of this Act shall not apply to loans due the Federal Government, or any agency thereof." It is contended that appellant is an agency of the federal government within the purview of such exemption provision. A joint-stock land bank is undoubtedly, for some purposes, an agency of the federal government.
Provisions of the federal statutes, other than those already mentioned, leave no doubt in our minds that the exemptions in said Moratorium Act apply to joint-stock land banks. It is provided that such mortgages are to constitute part of the collateral upon which the issuance of farm loan bonds is based.
Being of the opinion that the appellant was not subject to the provisions of said Moratorium Act, and that therefore the judgment of the court below should be reversed and the cause dismissed, it is accordingly so ordered. *300