*1 A. Elmore Ex Parte Ex Parte Ruth Morris. Nina 1961. February Decided A-8019, Nos. A-8020. Rehearing Overruled March 558) (342 2d Series Jerry Clark, Murad and Max E. Worth, of Fort for both reía-: tors. Lambert, Alley, & Russell Russell, J. all of Fort Alford
Worth, respondent, judge. district opinion delivered the of the Court.
Mr. Justice Culver original proceedings are two These instituted by in this court Morris, James A. Elmore and Nina Ruth for writ of order restraint of an corput them from the to release habeas Judge Craik, District Court Harold the 153rd the Honorable *2 August, 1960, day ad- County, of entered on the 16th contempt Tarrant an of judging of arise out them in court. Since both disposed alleged of in one order will of the same be violation opinion. formerly now parties but are were husband and wife These Leonards, a they purchased cor- married from divorced. While unit, freezing arm poration, chairs, and two one a camera kit 16-foot mortgage payment and in and chattel executed note divorce, purchase price. Subsequently to Leonards
to secure the the mortgage lien. suit debt and its chattel filed for its foreclosure of 1960, May, day On the of Both were made defendant. 5th judgment against his was rendered Elmore for the balance due and directing note, together an that with foreclosure of the liеn fol- order of sale contained the issue thereon. The also lowing recitation: defendants, plaintiff
“Further as and both the that between right, plaintiff has all and interest in and to the aforemen- title plaintiff and to immediate tioned Chattels entitled hereby thereof and both the said ordered to deliver defendants executing said the Chattels to the possession of officer hereinafter added). (Emphasis mentioned Order Sale.” setting contempt affidavit for Thereafter Leonards filed an alleging an order of sale was the terms of the forth issued; carry out the that both relators failed and refused to praying order of the the sheriff and court to deliver chattels to the hearing adjudged that each in notice After due obey the court in for their held both failure punishment as follows: court’s оrder and assessed Elmore, hereby defendant, fined A. $100.00 James (3) days “The jail and the for such to three sentenced hereby three sentenced to serve Ruth Elmore is Nina defendant day jail from thereafter days and to remain (3) contempt by purge herself of such she shall until aforesaid Constable, Precinct Number chattels to Sheriff County, Texas, said Nina Ruth Elmore 1, shall Tarrant purged jail until she shall have herself com- released not be pletely aforementioned.” as order is void maintain relators provisions of Rules 308 and Texas Rules of
reason aof Procedure, secondly, there is no evidence because Civil disopedience contemptuous a court order. “especial think, value”
Admittedly, not of chattels were requiring relators to to Leonards authorize the order so аs to provisions of Rule sheriff under the deliver the Douglas In Ex Joe Procedure. Rules of Civil Prickett, that shares 2d we held commonly “especial market did not have value” stock sold on the contemplation control here. parties of that rule. But that case does not First, distinguished grounds. It these is to be on two pro ordered to the sheriff so that he could to deliver carry ceed to sale. out his duties in connection with the order of original judg place, In the second order was contained taken, thereto, appeal objection ment from which no levied *3 judg and no motion filed for modification or for a new trial. The according ment became final to its terms. provides judgments Rule 309 that in for foreclosure mort-
gages an any order of sale shall issue to the sheriff or constable directing him to seize and sell under the same execution in satis- judgment property faction of the to make and if the cannot found then up any the balance property out of other of the defendant. expressly, The court is least, not authorized at to order the up property. irrespective to deliver But of whether the fore- closure respect, (and erroneous оr void that we are implying either) pass that it is to the consideration of any support whether there is evidence to
in this case. original judgment
The in favor of Leonards recites that both Elmore and citation, Mrs. Morris were served with but that El- more made default and Mrs. while did Morris file an answer attorney appeared neither she nor her at the time of the trial. petition Leonards’ was in the pray usual form and did not that the dеfendants be ordered to deliver the chattels to the sheriff anyone nothing or to else. There is to show that either of these apprised judgment, ordering of the terms in the them property sheriff, deliver until the notice to show cause was served on day them some August, time after 2nd According testimony Elmore filed suit for divorce on 3, 1958, petition November and that was dismissed. He subse- quently 9,May filed another suit on аnd the divorce was granted in this July second case on 11th of year. the same In the property settlement Mrs. Morris was awarded all the household specifically men-
furnishings. property was not involved here granted, hand, divorce was tioned. the other On being community, husband. erty presumably in control as separated Elmore Mrs. Morris testified that she and James home 5, 1958; left September she that when husband and wifе morning place chattels were employment these on that for her in the couple occupied; that Elmore was in the house which the nigth upon the freezer that her return that house at time and removed; had the furniture that she assumed had been intended; property told her he so taken this with him since he had possession that property since that she had not had the time nor did she in her made it was then located. She know where neighbors police inquiry reported had the loss to nor anyone else; her house that when the officer came to she told demanded of the freezer and the furniture possession. him she did in her not have the separation came Elmore testified that on afternoon; at Mrs. Morris handed to the house him his two o’clock in the gave house; key did that he clothes and he her the mortgaged anyone else to not remove the nor authorize fur- do had of it. He to ther stated that Mrs. Morris told him that she had let so and he did not know what become her brother quote testimony have the camera. from his as follows: We (Mrs. Morris) “I merchan- also called and asked her about *4 pick up. her dise that I I asked went down and told Leonards to out, they yes. let if had I asked her if she had been she said said, no; you ‘why ?’ she them have it. I said didn’t She said in you it’.” T will see let them have hell before will testimony of these can- the of both that or the other It is obvious falsely. The court found swore both not true. One be though testimony contempt if the of either was be- in them of court, guilty. some The in the absence of other was lieved the inflicting collusion, penal- not warranted in would be of evidеnce point seems in the evidence the other and all of ties both dismissed, filed, cases were one the other divorce Two direction. granted. According parties has remarried. to Mrs. the of One police officers on several occasions to to call the she had Morris According him away her house after he left. keep together they as testimony have not lived husband оf both hearing August, and on this in effect ac- since wife swearing. false other of each cused reason, have could, testimony with evaluating the court the Morris Mrs. that of true and was statement that Elmore’s found hardly could He converse. false, could have found or he was testimony of concluding think, that the justified, in we have been that is penalties inflicted yet in of false and view remanding However, Mrs. reached. he must have conclusion Morris by contempt purged herself of until she of had control that she concluded property, he must have the property power to deliver that the Elmore and and not exclusively her. If that lay with erty in with the order accordance logic punishing wholly fail to understand true then we be perjury but not held The Elmore. very property. It is of for refusal to deliver the may property It likely was. that Mrs. Morris knew where is at least disposed of it in some manner but there that she had posses- property in her positive has had the evidence that she August, 1958, years nearly two before sion since the 5th of delivery required issued. could not have been order for She against disposition plea such of self-incrimination. to disclose contempt but, presumed person rathеr sub A is not to be parte White, ject proof, presumed is not to be. in that case: 2d 542. We observed relator, every theory point under
“But the is not whether dishonesty, actually facts, guilty or whether did own question purported of his and control the virtue November, 1952, purchase in he at some there- or whether time disposed Meyers after of it to or some else in the somehow one Swagerty point contemptu- whether he has chain title. March-April, ously disobeyed a court order or orders of >> * * * power Mrs. Morris If it is not within the to deliver sheriff, positive proof and there is no can so, imprison do the effect of this decree is to her for natural life. the balance of her proceeding kind take consideration the
In a of this into including at the hear entire record the evidence offered ing, process due has been accorded these to determine whether *5 328, Fisher, 1000; parte Ex 146 Texas 206 2d relators. S.W. 315, Henry al., parte 215 2d 588. Leo et S.W. Morris, 140, point parte is Ex 147 Texas
Somewhat 598, 2d There the relator was held for vio- 599. intoxicating pur- liquor lating by for the injunction possessing an Although circumstantial evidence pose of sale. there was some connecting held liquor, nevertheless we him with the discovered establishing guilt and competent his there was no evidence discharged. in Ex A result was reached ordered him to be like Considering Bethurum, 2d 85. competent say in that there is no evi- entire record we this case inflicting fines support dence that would this order of confining punishment parties, Mrs. Mor- and on both and further purged by possession of the ris herself erty to the sheriff. by appreciate can frustration felt and understand the
We to in However, certainly court in this situation. there is no evidence finding and Mrs. Morris were authorize a that both Elmore comply with of the and that each was able to by order, finding delivery yet made must have been adjudging parties the court before discharged. Both relators are ordered Steakley sitting. Associate Justice Opinion February delivered dissenting. Griffin,
Mr. Justicе original by proceedings These are instituted in this court two Morris, A. Ruth for writs Elmore and Nina Elmore corpus an habeas to release them from the restraint of order Craik, Judge Harold District of Tar- Honorable of the 153rd Court County, day August, adjudging rant entered on 16th alleged them in Both of court. arose out violation disposed opinion. order and of in one same formerly husband and di- These wife but now Leonards, thеy purchased corpora- married vorced. While tion, chairs, freezer, one 16-foot Lineo a camera kit and arm two mortgage purchase a note and chattel to secure the and executed money. divorce, subsequent Thereafter to the time of the filed suit for its its Leonards debt foreclosure of chattel mort- gage lien. Both were made defendant. the 5th On against Mаy, judgment was rendered for the bal- together note, with ance due on his foreclosure of the lien directing that an order of sale issue thereon. The also following recitation: contained
591 defendants, and plaintiff both that as between “Further the aforemen- in and to right and interest title plaintiff has all immediate plaintiff entitled to and is tioned Chattels hereby de- to ordered the said defendants thereof and executing the here- the officer to possession of said Chattels liver mentioned of Sale.” inafter Order setting contempt for an affidavit filed Leonards Thereafter alleging was that an order of sale forth the terms issued; carry out the order and refused to relators failed that both praying and sheriff the chattels to the court and deliver hearing, adjudged After due notice in
that each be obey parties for their failure to in the court held both punishment as follows: the court’s order assessed Elmore, hereby fined defendant, is A. $100.00 “The days the de- (3) jail such three in sentenced to (3) hereby to serve three Ruth sentenced fendant Nina day days jail jail to thereafter and to remain in from contempt by afore- purge she shall herself of such Constable, Precinct Tar- said Number chаttels Sheriff Texas, County, Ruth Elmore shall not be rant and the said Nina completely purged herself released until she shall have as aforementioned.”
The relators maintain that order is void provisions reason of the of Rules 308 and Texas Rules of Procedure; and, secondly, that of a con- there is no evidence Civil temptuous a disobedience of court order.
Admittedly, think, “especial not of value” the chattels were requiring the order to to Leonards so as to authorize relators provisions to the sheriff under the of Rule deliver the 308, Prickett, Douglas Texas Rules of Procedure. Ex Parte Joe Civil 2d held that shares “especial commonly sold on the market did not have value” stock contemplation of that rule. But that case does not control here. grounds. distinguished First, two It is to be thеse pro- sheriff so that could ordered deliver carry ceed to out his duties connection with the order of sale. original place, judg- In the second order was contained taken, appeal objection thereto, ment no levied from which judg- for a and no motion filed for modification or new trial. The according Conceding ment final its terms. that the became court respect requiring to the order erred to deliver the respect question property, the is not whether the in that erroneous, but whether it was void. corpus remedy judg- A writ of habeas collateral and the upon jurisdiction ment of a court collaterally impeached. matter within its cannot be *7 elementary
The rule is that the writ can- appeal used as a not be in method of or for correction of errors court, contrary, inquiry solely trial but limited is question jurisdiction. Testard, 250, parte Ex 101 Texas 319; Smith, parte 55, Ex 106 110 Texas S.W. 320. parte Kimberlin, 60, 717, In Ex 126 Texas 86 S.W. 2d the rela- adjudged restraining tor was for the of a violation In order. that case the district court error that the mer- erroneously still chandise was in interstate commerce and held cigarettes they relator in because he confiscated the after purchasers. Nеverthelss, were delivered to the action the trial judgment upon facts, an court was error of and was the law jurisdiction. belongs not void of lack of If a because case to authority extends, jurisdic- class over which the of the trial court decision, tion attaches and lost is not because of an erroneous how- might ever erroneous the decision it be. Kimberlin is further pointed restraining оut that if the order included matters of doubt- validity clearly duty ful it obey of the relator to seek a modification or dissolution. original permitted The relators of foreclosure stand, including positive as it did the order to deliver the
erty They to the sheriff. did not for move modification a or for trial, complain, object new or any respect, appeal. nor did take an general rule that сorpus is since the writ of habeas an extraordinary writ, it may does not lie when relief be had or been timely remedy.
could have
Ex
also the
obtained
resort
another
parte Travis,
480,
487,
123 Texas
73 S.W. 2d
This
proceedings.
parte Warfield,
rule
criminal
Ex
413,
Rep.
933;
parte Roper,
Cr.
Rep.
61 Texas Cr.
68,
Mrs. Elmore Morris testified she and September 5, 1958; arated as husband and wife on that when she morning place employment left home on that her these couple occupied; chattels were in the house which the that Elmore night upon was in the house when she left and that the freezer had been her return that removed; pos- that she had not had it in her since, session Notwithstanding nor did she know it was. where fact required carry obvious truck would have been *8 away a inquiry neighbors 16-foot freezer she had made no of the reported nor anyone had she the police loss to else. departed September
Elmore testified that when he 5th the house; chattels were in the that he did not takе them nor author- anyone out; ize else to move them that he did not know what had of become them. He further related that Mrs. Morris told him that she had let Quoting her brother have the camera. from his testi- mony : “I also called and asked her about the mer- [Mrs. Morris] chandise that I went down pick up. and told Leonards to I asked they out, her if yes. had been and she said I her asked if had she no; let them ‘why have it. She you?’ said said didn’t and she said, you T will see in hell before I will let them have it’.” Under these facts trial amply justified court was in con- cluding that possibly one or the other or both of these were guilty of deliberate falsification. Nor can it be said that the court finding was not warranted guilty both were col- secreting lusion in so that the order of not sale could be carried out. He must have inferred principal respon- that the sibility lay Morris, with Mrs. for jail he committed her to purged she contempt, only herself of but fined re- Elmore and period manded him to a days. for of three rely parte Relators White, on Ex 154 Texas 2d 274 S.W. analogous 542. But the facts in that case are not to those here. appeared parts It in Ex that the parted White relator had with re- property prior institution of of the comply court’s сeivership proceedings with and was unable though disposition true even order. This would be erty it case purpose. our for some fraudulent
had been made comply relators unable to with that the was not shown I am circumstances court and from all the facts and order of the impliedly opinion court warranted the firm that the trial compliance impossible. Ex drawing the conclusion Klugsberg, рarte 2d 465. 126 Texas 87 S.W. Relator, Morris, argues must that under this order she Mrs. least, life, for her or at for the remain in confinement balance argument period. is not founded. Undoubt- an indefinite This well edly province of the court to conclude that it was within the her produce the reason for or disclose could either inability she can obtain relief. to do so and in the latter event guilty criminal act in
Relatоrs assert that if mortgaged property disposition is an ade- there or concealment of remedy by prosecuting under criminal statutes. quate them setting aside the order. But that affords basis for fact enjoined that if commits an act which It is well settled one penal committing act laws from he Looper, and if that violation and the may punished the crime Rep. 129, 345; State, Sparks v. Cr. Rep. Cr. custody of the sheriff. I would remand the relators *9 February 1,1961. Opinion delivered 1,1961. Rehearing March overruled Harry Louis Pollard v. Mrs. C. Steffens. S. February 1, 1961.
No. A-7170. Decided Rehearing March Overruled 234) (343 S.W. 2d Series