Patsy Ruth McHONE, Relator, v. Honorable Dan GIBBS, Judge et al., Respondents.
No. B-2733.
Supreme Court of Texas.
July 28, 1971.
469 S.W.2d 789
Hooks, Wyrick & Rodehaver, Sam Rodehaver, Dallas, for respondents.
STEAKLEY, Justice.
This is an original mandamus proceeding. The relief sought, in substance, is the vacation of a second judgment of Honorable Dan Gibbs, Judge of the Court of Domestic Relations No. 3 of Dallas County, Texas, by which Judge Gibbs attempted to vary the terms, and thereby preclude enforcement, of his previous judgment in a divorce proceeding which became final upon affirmance. See McHone v. McHone, 449 S.W.2d 488 (Tex.Civ.App.1969, writ dism‘d w. o. j.). The court of civil appeals has denied relator‘s motion for leave to file petition for mandamus seeking the same relief as here. We conditionally grant the writ.
The Court of Domestic Relations No. 3 of Dallas County, one among many in Texas, was created by legislative enactment in 1967.
It is also of significance that the enactment of
It has been stated in another context not involving the power of this Court to award the writ of mandamus that a court of domestic relations is not a district court established by the Constitution. See Jordan v. Crudgington, 149 Tex. 237, 231 S.W.2d 641 (1950). It does not follow, however, that a judge of a court of domestic relations, exercising as he does, concurrent jurisdiction with a district court in the enumerated respects, and identically governed in other respects, is not a statutory district judge within the purview of
The original judgment in question was entered by Judge Gibbs under date of February 20, 1969, and, as stated before, this judgment was affirmed by the court of civil appeals. The mandate of that court was issued under date of May 19, 1970. The judgment inter alia decreed that relator should have and recover the sum of $5,263.97 from William Roy McHone, Sr., with interest thereon at six per cent per annum from the date of the judgment, and with a lien against certain described separate property awarded to McHone. Relator attempted to obtain a levy of execution under the judgment after it became final but this was interdicted by a second judgment of Judge Gibbs dated August 25, 1970, which decreed that relator have and recover the sum of $4,400.00 in lieu of the originally adjudicated sum of $5,263.97; that relator recover interest on such sum at the rate of six per cent per annum beginning May 19, 1970, in lieu of from February 20, 1969, the date of the original judgment; that the execution levied be stayed and relator have her writ of execution only after the so-called clarifying judgment became final; and that McHone recover the costs of the subsequent proceeding against relator.
The second judgment describes the proceeding which brought it about as a motion by McHone, “to clarify the Judgment of this Court entered in this cause on the 20th day of February, 1969,” and further recites that the court heard evidence “in support of and against” the motion. Although the record before us is not entirely clear, it seems that the court was attempting in this manner to adjudicate a controversy which had arisen between the parties growing out of other provisions of the judgment. This is not an accepted procedure to accomplish
In Yett v. Cook, supra, we exercised the mandamus powers of this Court to require a lower court to grant, protect and make efficacious the right of appeal and supersedeas against a positive step taken by a district judge beyond his lawful power and jurisdiction. Here we are asked to require a judge exercising district court jurisdiction to vacate a judgment changing a prior final adjudication in material respects, and hence beyond his power. We did essentially this in Buttery v. Betts, 422 S.W.2d 149 (Tex.Sup.1967), where the judge undertook to grant a new trial after the court had lost jurisdiction. We did so against the contention that the parties adversely affected had an adequate remedy at law by way of an appeal after a retrial on the merits. Relator here, as was said there, is entitled to her judgment. Our writ will not control in any way the judicial discretion of the respondent judge, see Texas State Board of Examiners in Optometry v. Carp, 388 S.W.2d 409 (Tex.Sup.1965); the case is one where no judicial discretion was or could have been exercised, cf. Maresca v. Marks, 362 S.W.2d 299 (Tex.Sup.1962). See also Crouch v. Craik, 369 S.W.2d 311 (Tex.Sup.1963); Polk v. Davidson, 145 Tex. 200, 196 S.W.2d 632 (1946); Thomason v. Seale, 122 Tex. 160, 53 S.W.2d 764 (1932); Terrell v. Greene, 88 Tex. 539, 31 S.W. 631 (1895).
Finally, our writ need operate only against the respondent judge. The operative effect of
We assume that the relator judge will vacate the judgment in question. A writ of mandamus will issue only if he does not do so.
REAVLEY, Justice (concurring).
I agree that the second judgment changes the original judgment and is therefore void. It should be added that the original judgment does not make an unqualified award of $5,263.97 but further provides a credit on that sum in the event relator fails to deliver certain property to McHone. As I interpret the holding here, it merely prevents a change in the terms of the original judgment, and the trial judge is not prohibited from resolving a subsequent conflict between the parties as to the sum to be used finally in the writ of execution.