Summary
In Brazos River, a conservation district sought a writ of mandamus from the Texas Supreme Court to compel the district judge to allow the district to withdraw funds it had deposited in the registry of the district court as security in a condemnation proceeding.
Summary of this case from Salvaggio v. DavisOpinion
Motion No. 15470.
Decided June 24, 1942.
Mandamus — Jurisdiction — Appeal and Error.
Ordinarily a writ of mandamus must be sought in the lower court, and there refused, before the Supreme Court will entertain jurisdiction, and in an action where petitioner has an adequate remedy at law in the trial court by asking a mandamus against the clerk of the district court to compel the refund of money deposited in the registry of that court, original jurisdiction cannot be successfully invoked in the Supreme Court.
Original proceeding in mandamus in which the Brazos River Conservation and Reclamation District ask leave of the court to file a petition for mandamus to compel the Honorable Ernest Belcher, Judge of the twenty-ninth judicial district, Palo Pinto County, to require him to enter an order permitting the district to withdraw from the registry of the court a sum of money placed therein as security in a condemnation proceeding by the district in their cross action to condemn lands belonging to E.P. Costello and others in said county. The cross action was filed in an action brought by Costello and others to enjoin the district from closing vents in a dam across the Brazos River and known as the Possum Kingdom Dam, in which they alleged that the closing of said vents would cause the overflowing of their lands. As to that case the injunction was granted; the Court of Civil Appeals affirmed that action, 142 S.W.2d 414, but the Supreme Court reversed that judgment and ordered that the injunction be dissolved and that the district deposit in the registry of the court the sum of $500,000.00 to be paid to these landowners as determined by the courts after final judgment on the cross action, or in keeping with the decision of the court of last resort, in case of appeal, Brazos River Conservation District v. Costello, 135 Tex. 307, 143 S.W.2d 577.
Motion for leave to file petition for mandamus is overruled.
Samuels, Foster, Brown McGee, of Fort Worth, and T.T. Bouldin, of Mineral Wells, for Brazos River Conservation and Reclamation District, petitioner.
No brief for respondent.
The Brazos River Conservation and Reclamation District, hereinafter referred to as the District, seeks leave to file a petition for mandamus against the Honorable Ernest Belcher, District Judge of the Twenty-ninth Judicial District Court, Palo Pinto County, and others, to require him to enter an order permitting the District to withdraw from the registry of the court a sum of money placed there by the District as security in a condemnation proceeding.
In a former action E.P. Costello and others sought to enjoin the district from closing certain vents in a dam, to prevent their land from being overflowed. The District brought a cross action, under Article 3269, Vernon's Annotated Civil Statutes, to condemn the land. The trial court held that the District had no right to condemn the land by way of cross action, and the injunction was granted. But in its judgment the court further provided that, in the event the judgment should be reversed on appeal, then the District should deposit in the registry of the court the sum of $500,000.00, to secure the individual landowners for any damage to their land. The action of the trial court was affirmed by the Court of Civil Appeals ( 142 S.W.2d 414), but this court, after granting a writ of error, held that the District had the right to condemn by cross action under Article 3269, supra, and reversed the case with the following instructions: "* * * the trial court is instructed that when said District has deposited in cash the sum allowed the landowners by said court, and has met all requirements of the law and has complied with all orders that said court may deem proper to protect said money and the rights of the landowners, the said writ of injunction issued by the trial court shall be dissolved, and said District shall be allowed to close the vents in said dam and take possession of said property * * *." Brazos River Conservation Reclamation District v. Costello et al, 135 Tex. 307, 143 S.W.2d 577, 130 A.L.R. 1220.
Pursuant to that judgment the trial court entered an order reciting its former order requiring the District to deposit in the registry of the court the sum of $500,000.00, and specified that such money should secure the following plaintiffs in the following amounts:
"E.P. Costello ................................... $102,500.00 Albert Adkisson ................................. 104,000.00 R.H. Goble and L.O. Moore ....................... 95,000.00 Argo Oil Corporation (Successor to Argo Royalty Company) ..................................... 42,500.00 Jessie Harmon .................................... 28,000.00 Brazos River Gas Company ......................... 128,000.00"
The judgment, after reciting that the money had been deposited, then recites: "It is therefore ordered, adjudged, and decreed * * * that the said sum of $500,000.00 * * * shall remain in said bank subject to the orders of this court, and to be paid out to the parties entitled thereto after final judgment in respect to each cross action on the merits of this cause has been rendered by this court, or in the event of appeal then and in that event in keeping with the decision of the court of last resort."
Before the conclusion of the trial on the merits between the District and E.P. Costello, the District entered into a settlement with plaintiffs Goble and Moore, under which they agreed to accept the sum of $35,342.00 in full satisfaction of any claim they had against the District. The trial court thereupon permitted Goble and Moore to withdraw $35,342.00 from the registry of the court. There having been deposited $95,000.00 to secure the plaintiffs Goble and Moore, there still remained in the registry of the court the sum of $59,658.00. The District then made a motion to be permitted to withdraw the $59,658.00. It did not seek to withdraw any fund allocated to any of the various other claimants. This motion was denied; and the District now prays that this Court either issue a writ of mandamus to compel the Honorable Ernest Belcher, District Judge of the 29th Judicial District, to enter an order permitting the District to withdraw the $59,658.00, or that this Court issue an order enforcing its former judgment, directing said District Judge to enter an order permitting the District to withdraw said sum.
While this Court may have jurisdiction of this cause to enforce its former judgment (a point which it is not necessary to decide), petitioner in this cause has an adequate remedy in the trial court, by bringing an action of mandamus against the District Clerk to compel him to refund the money to the District. Where the ordinary remedies are complete and adequate, the extraordinary original jurisdiction of the Supreme Court cannot be successfully invoked. A writ of mandamus must ordinarily be sought in the lower courts. Love v. Wilcox, 119 Tex. 256, 28 S.W.2d 515, 70 A.L.R. 1484. This Court has announced the rule that, owing to the great volume of business coming before it, it will not entertain an original mandamust proceeding in a case where another court has jurisdiction; unless it is made to appear that relief has first been sought in that court. Dallas Ry. Terminal Co. v. Watkins, 126 Tex. 116, 86 S.W.2d 1081; Ford Rent Co., Inc., v. Hughes, 126 Tex. 255, 88 S.W.2d 85; Miller v. Stine, 127 Tex. 22, 91 S.W.2d 315. We therefore hold that this mandamus must be brought in the district court; and if satisfactory relief is not obtained there, the parties may appeal, as in any suit, to the Court of Civil Appeals; and, if necessary, may apply to the Supreme Court for a writ of error.
The motion for leave to file the petition for mandamus is overruled.
Opinion delivered June 24, 1942.