85 S.W.2d 1098 | Tex. App. | 1935
This is an original action brought in this court by J. H. Harper, seeking a writ of mandamus against J. S. Garlington, judge of the county court of Howard county, and Mrs. K. M. Van Zandt, of Tarrant county. The action relates to a cause pending in the county court of Howard county in which J. H. Harper is plaintiff, and O. Y. Miller and wife, Mrs. O. Y. Miller, and Mrs. K. M. Van Zandt, a feme sole, are the defendants. Said suit in the county court was filed June 24, 1932, and sought recovery against the defendants upon a note for $600 dated December 10, 1930, and due June 10, 1931, with interest. Before the service of citation upon the defendant Mrs. K. M. Van Zandt, and, to wit, on the 10th day of October, 1932, the latter executed a note to the plaintiff in the sum of $665, due six months after date; the suit remaining on the docket. After default in payment of the last-named note, plaintiff's petition was amended so as to seek recovery against O. Y. Miller and wife upon the original note, and against Mrs. Van Zandt upon the note subsequently executed by her, and citation was duly issued and served upon her. Mrs. Van Zandt filed an answer on May 28, 1935, and at the ensuing term the cause was continued by consent, and at the request of the plaintiff. On July 31, 1935, plaintiff filed a second amended original petition. On appearance day of the August term, 1935, the case was set for hearing on August 8, upon a motion for continuance filed by Mrs. Van Zandt. On the day set the court heard the motion for a continuance, which was in writing, and duly and formally sustained same, thereby continuing the case until the October term thereafter. This action seeks, or at least would have the effect, to set aside and hold for naught the order of the court sustaining the motion for continuance.
It is apparent from the foregoing statement that this action is a collateral attack upon the judgment of the county court granting the continuance. 25 Tex.Jur. p. 767, § 289.
It is recognized by the relator that this court cannot properly order the issuance of the writ unless there is shown an abuse of discretion on the part of the trial judge in continuing the case. Unquestionably the county court had jurisdiction over both the subject-matter and the parties. Such being the case, we entertain considerable doubt whether the action of the court, however erroneous it may have been, could be held to be void within the sense that the judgment of a court may be subject to collateral attack.
In Matagorda Canal Co. v. Styles (Tex.Civ.App.)
Relator, in his motion for leave to file the petition, stated his purpose to dismiss the suit as to the Millers, but that, we think, is not sufficient. Until the Millers are formally dismissed, they have that interest in the judgment of the court continuing the case which, within the rule above stated, precludes this court in an action to which they are not parties from in effect vacating and holding for naught that judgment.
It is therefore our opinion that the petition for mandamus should be dismissed, and it is accordingly so ordered.