54 S.W.2d 277 | Tex. App. | 1932
This is an original proceeding filed in this court by N.M. Harris, as relator, complaining of the Hon. George C. O'Brien, judge of the Fifty-Eighth judicial district court in and for Jefferson county, Tex., and W. W. Harder, as respondents, praying that a writ of mandamus be issued against Judge O'Brien directing him to enter a final judgment in cause No. 36620, N.M. Harris v. W. W. Harder, on the docket of the Sixtieth district court in and for Jefferson county, Tex. For grounds of relief, relator alleged the following facts: On the 18th of May, 1925, relator purchased from J. W. Priest and wife lots 1, 2, 3, and 4 of the Fletcher subdivision of the Oakwood addition to the city of Beaumont, Jefferson county, Tex., for $3,250, of which $1,200 was paid in cash and the balance in monthly payments of $25 each, with 8 per cent. interest beginning on June 20, 1925, with vendor's lien reserved to secure the payment of the unpaid purchase price. On January 8, 1927, relator sold and conveyed to respondent W. W. Harder 40 feet out of the center of lots 1 and 2 for $975, of which $25 was paid in cash and the balance as follows: Three monthly payments of $25 each for the months of February, March, and April, with interest at 8 per cent., and the balance in monthly payments of $15 each, with 8 per cent. per annum interest, beginning with the May, 1927, payment. On September 8, 1927, relator sold to respondent W. W. Harder 45 feet off the front end of lots 1 and 2 for $1,275, of which $16 was paid in cash and the balance in monthly payments of $15 each, with interest at 8 per cent. per annum. Relator's deeds to respondent contained the usual warranties of title and reserved the vendor's lien to secure the unpaid purchase money. Relator failed to pay off all the J. W. Priest vendor's lien notes when due and Priest instituted suit thereon and secured judgment for the unpaid balance on the 28th of September, 1931, with foreclosure of vendor's lien, with stay of order of sale to December 15, 1931. Respondent Harder failed and refused to pay the vendor's lien notes given by him to relator, whereupon relator filed suit against respondent Harder for the unpaid purchase price on the property sold by relator to respondent and to foreclose the reserved vendor's lien, to which action respondent replied by general and special demurrers, general denial, and by specially pleading relator's warranty, and also by specially pleading certain improvements made upon the property in good faith and for damages. That case, upon the issues made by the pleadings, came on for trial on the 11th day of December, 1931, before Judge O'Brien, without a jury, and on that date Judge O'Brien entered the following judgment in that cause:
"N. M. Harris v. W. W. Harder. No. 36620
"It is ordered and decreed by the court that the lien as it existed on December 11, 1931 on 85 feet off the front end of Lots One (1), Two (2) and Three (3) of the Fletcher Subdivision of the Oakwood Addition to *279 the City of Beaumont, in Jefferson County, Texas, be, and the same is hereby foreclosed and the Clerk of this court, after said warranty on the part of the plaintiff, will have been complied with as aforesaid, shall issue an order of sale, directed to the sheriff or any constable of Jefferson County, Texas, commanding him to seize and sell the above described land and premises as under execution and that he apply the proceeds thereof to the payment of said debt, to wit: $1438.56, together with interest from December 23, 1931; and if the said land and premises shall sell for more than sufficient to pay off and satisfy said sum of money together with all court costs incurred, then the said officer is hereby directed to pay over the excess to the defendant; but if the said land and premises shall not sell for enough to pay off said judgment, then the said officer shall make the balance as under execution. And it is further ordered that the said officer place the purchaser of said property in possession thereof within thirty days after the date of sale; and said order of sale when issued shall have all the force and effect of a writ of possession. But it is ordered and decreed as aforesaid that said foreclosure and sale proceedings will not be enforced as aforesaid until the plaintiff will have complied with his warranty contained in the deed conveying the defendant said property."
Relator has not paid the judgment recovered against him by Priest on the 28th of September, 1931, but on the 16th of December, 1931, respondent Harder purchased the Priest judgment and on the 8th day of July, 1932, took from Priest a written assignment of that judgment. After respondent Harder became the owner of the Priest judgment, relator (quoting from his petition) "in due time filed his motion in Cause No. 36620, and being the cause in which said interlocutory decree was entered, setting forth that his warranty was now protected by the said W. W. Harder having acquired the J. W. Priest judgment and that the Court could determine the issues between the parties and enter final Judgment in said cause; that said motion to enter final judgment came on to be heard before the Court and the Court, after hearing said cause and the evidence adduced thereunder, by decree entered on September 1, 1932, held that the judgment of December 11, 1931, was a final judgment and was in no wise an interlocutory judgment and refused to disturb the same or enter any other decree in said cause," whereupon this proceeding was filed in this court.
In Walker v. Mears,
In Spiva v. Williams,
That judgment was held to be interlocutory by the following conclusion: "The very object of a suit is to adjudicate and declare the respective rights of the parties, in a shape so that the ministerial officers can with certainty carry into execution the judgment of the Court, without the ascertainment * * * of additional facts. It is obvious that such is not the case here."
General Motors Acceptance Corp. v. Bodenheim,
After stating the case as above, Judge Willson of the Texarkana Court of Civil Appeals, rendered the following decision: "Having determined appellee was entitled to recover of appellant a specified sum and that appellant was entitled to recover of appellee a different specified sum, the court should have set off the one sum against the other, and, having done so, should have rendered judgment for the balance in favor of the party entitled thereto. As the court did not do that, the judgment is not a final one from which an appeal could be prosecuted," citing article 2211, R.S. 1925; Walker v. Mears,
Stratton v. Dewey (C.C.A.) 79 F. 32, sustains relator's proposition that the decree was rendered interlocutory by the condition that relator could have his order of sale only by paying the amount of his warranty and affirmatively denying him the order of sale unless and until that condition was complied with. In that case the court held that a judgment granting relief upon the party complying with specified conditions and providing that if they are not complied with the relief shall be denied, is not a final decree.
But the fact that the decree in issue was interlocutory does not entitle relator to a mandamus against Judge O'Brien. This conclusion merely leaves the case upon the docket of the trial court subject to such further orders as may be made therein when the case is called for further disposition. There is no complaint by relator that Judge O'Brien refused to give him a setting of his case for final disposition, nor is there any suggestion that he has ever asked for a further hearing in his cause. The prayer is that we direct Judge O'Brien to enter an order crediting relator's judgment against Harder with the amount of the Priest judgment, and that order of sale issue in his favor for the balance. This relief would result in a trial of the case by us, with a decree as to the character of the judgment to be entered by the trial judge. Such relief is beyond our jurisdiction to grant.
*349For the reasons stated, all relief prayed for is refused.