Petition for Writ of Certiorari — Crouch v. Shields

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ae __ ood {oe ne GU

MIBRORY:, 3 | FILED

ES GRY = -_s ;

= COURT, oO. & Sut 30 1965

ee . | _+JoHh-F-ens, CLERK

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SUPREME Count oF THE Uren STATES |

OCTOBER ‘TERM 1965

i

AL CROUCH, PROBATE JUDGE, Petitioner

‘ P ee f ° 4

d ;

V.. Vr4 } he

oe \

WILLIAM E. SHIELDS, JR., GUARDIAN, Respondent <—

Petition for Writ of Certiorari to the Court of Civil .

Se ge for the Fifth Supreme Judicial District

of ee | at Dallas a

A. L. CROUCH, Pro Se

JUDGE OF COUNTY PROBATE COURT

Tarrant County Courthouse |

ee

= Fort Worth Brief Printing Co.,-61¢ 5. Jeanings Strest Phone ED 24070 Pes pe

_

8

‘ Constitutional Provisions Involved

Statement of the Case .

j Reasons for Granting Writ

SUBJECT INDEX

Table. of Appendices. woneelncenweine

‘Table of Authorities ;

Opinion: Below <s

Jurisdiction , .

Questions Presented .,

Presentation of Federal Questions

- I. Petitioner Was Deprived of ‘Due Process of Law by

- ‘the Trial Court’s Denial to’ Him of his. Constitu-

_-tional Right to Adequate ‘Notice ‘of sa Mandamus

Lawsuit

—- °:

Il. Petitioner Was Deprived of Due Process of Lew by

the Trial Court’s Denial to Him of his Constite-

tional Right to Trial by Jury

__IIL. Petitioner Was Deprived of Due Breanie of Law by .

Conclusion .

- Certificate of Service ? oust ERT

the Trial Court’s Denial to Him of His Constitu-

tional Right toa Fair and bapartial =

EER

, 8 Page

A. Mandamus J udgment, of 17th District Court A-1

B. Opinion of Dallas Court of Civi] Appeals | - A-5

s. Ordér of Texas Supreme Court Overruling

_- . Application for Writ of Error eee A-16

‘D. Order of Texas Supreme Court tists: cas

Pee tiga Petitioner’s Motion for Rehearing A-17

EB. Denial of J ury, Trial, Motion for. Rehearing . A-18

aes Inadequate Notice, ‘Motion for Rehearing... A-18

~G. Contents of Application for Sale of Real — :

Ge Estate, Texas as Probate Code, Sec: 342° A-19.

, BE “Statute on on Transfer of Cases, Art. 1970-845, 2

——*. Tex. Rev. Civ. Stat. : A-19.

TABLE OF APPENDICES

= 3 “Ju udge Crouch Is Threatened With Jailing”*

for bom qa ale Fort Worth h Press, March 19,

1964 ......

“J... “€rouch Is Ordered to > Post Bond,” Fort Worth §.8 7

Press, April 1, 1964 -.

-K. “Compliance or Jail Is:Urged for Crouch,” —

- Fort Worth Star-Telegram, April 17, 1964

L, “Avoids Jai Judge Is Victor in Skirmish, ag

Fort Worth’ ‘ May 15, 4964 ..

be ‘ : 7

ian 2 aelen

“C

TABLE OF AUTHORITIES oi ee

ee 3g : ee.

Ackert v. Bryan, 299 F. 2d 65 RO at 4:

~ Aday y. U.S. District Court, 318 F. 2d 588 <.!.. te Bae

Air Conditioning, Inc. v. Harrison-Wilson-Pearson,

. 151 Tex. 635, 253 S.W.2d ¢ 422 : ad 18.

Allstate Ins. Co.v-U:S. Dist. Ct., 264 F. 2d BB natin nnn

Amos Treat &.Co. v. Securities & Exchange we at

_-—- Commission, 306 F. 2d 260 said A lt BI

Arberry v. Beavers, 6 Tex. 457 ROOT

Armstrong v. Manzo, 14 L. ed. 2d 62, 66° .......,..........-15, 19, 23

' Atlass v. Miner, 265 F. 2d 312 " i 4

Dashes v. Penn. R. Co.,.10 L. ed. 2d 80 sable 20

Beacon Theaters, Inc. v. Westover, 360 U.S. 500 eres | i

Berger v. U.S., 255 U.S. 22-.......... 27

Betts. v. Brady, 316 U.S. 455 al valde Rome 21

Blair v. Paggi, Com. App., 238 $.W. 639 é: 1 sain

Bolling v. Sharpe, 347° ‘US..497 . 4

Ex Parte /Bradley, 7 Wall 364 pibhasoeaabta Servers |

Brown ¥,/ Walter, 62 F. 2d 798, 800 / = |

-Ferris Machinery Co. v. npc: .

5.W. 2d -168 .... | hb

dler v. Fretag, 348 US. 3 aie c a oe

Citizens State Bank of Frost v. Miller, : 7 ae

* 115. S.W. 2d 1188 ..... 32

City of Tyler v. First N ational Bank of Dent ie

46 S.W. 2d 454 a 29

Cleveland & Sons v. Smith, 102 Tex. 490, eG aa

119 S.W. 842-3 Sehesesivesspestcol Oy AG

- Collins v. Herd; 295 S.W. 216 ... “es . 28

—Cox'v. U.S., 19 L. ed. 579 : Pane nctteniaeee.

Craven,v. U.S., 22 F, 2d 605, 607-8 —...2...21:.... Leicieaingalae

Crouch v. Shields, 385 8.W. 2d 580 IB SISA SR Se 2

Crouch v. Stanley, 348 'S.W. 2d 543 .... (em 12 .

Crouch v. Stanley,.390 S.W. 2d 795 : 11

- Crower v. Di Manno, 225 F. 2D 662 ....... Maemo |

», | :

Ex Parte Davenport, 8.L. ed. 587 erensak sasaeeng 29, 81

Diedrich v. American News Co., 128 F.2d 144)

a _ Miller v. State, 568 S.W. 2d 838

4

"TABLE -. ‘AUTHORITIES —Continued «

Frost v, Yankwich, 254 F. 2d 668

Galvan v. Press, 847 US. .522

Gideon v: Wainwright, 372 U.S. 385

_ Gonzalez v. Wright, 151 Tex. 807, 249

S.W. 2d 587

Grace Line ‘Inc. v. Panama Canal Co.,

148 F. ‘Supp. 539

Grannis v. Ordean, 234 USS. 385

Green v..Murphy, 259 F. 2d 591

Ex Parte Gudel, 868 S.W. 2d 775

-. Harrison v. Mo. Pac. Ry. Co., 9 L. ed.

*- 2d 711, 1968

Hawkins v. Flood, 331 S.W. 2d 954

‘ Ex Parte‘Hejda, 18 S.W. 2d 57

Hoffa v. Gray, 323 F. 2d 178 ....4

‘Hudson v. N. C., 863 U.S. 697

185 F. 2d 800

Tley v. Hughes; 311 S.W. 2d 648

_ Knapp v. Kinsey, 232 F. 2d 458

Malloy v. Hogan, 378 US. 1

Marion v. Lockhart, 114 S.W. 24.216 |

Page|

-Erback v. Donald, 170 8.W. 2d 280, err. ref. 17

Farmers’ Gas Co. v. Calame, 262 S.W. 546 14

94

i: 21.

‘-Gonzalez-v. Laughlin, 256 'S.W. 2d 286 {

29, 81

‘“

15

4

14

In Re Haight & Freese Co., 164 F. 688

Hammond v. Ashe,.108 T. 508, 181 S.W. 589 16.

Harkins v. Murphy and Bolanz, 112 S.W. 136

-19, 20

an;

14

4,5

12

Hydraulic Press Mfg. Co. v. Moore, Judge

30 .

Kleiber v. McManus, 66 Tex. 48, 17 S.W. 249 32

25, 27

_ LaBuy v. Howes Leather Co., $52 U.S. 249 18

. 21

Marbury v. Madison, 5 U.S. 137, 96 -: $1

| | 28

| Masonic Grand Chapter of Order of Eastern ;

- $tar v. Sweatt, 329 S.W. 2d 334, ref. n.r.e. 14 .

Ex rel Meers v. Wilkinson, 326 F. 2D 135 27

30,

bs nade Mayer, S11 U.S. 457 - ,

e

a

a

‘ \

\

Moskun v. U.S. 143 F. 24 129, 180 =:

>) <TABLE OF ee

‘Mullinax v. Barrett, 173 S.W. 1181.

In Re Murchison, 349 U.S. 133, 136

N. L. R. B. v. Botany Worsted Mills,

106 F. 2nd 263 ......

N. L. R. B. v. Phe.ys, 186 F. 2d 562 .....

Nielsen v. Hoffman, 270 F. 2d 693

Panhandle Eastern Pipe Line Co. ' v. ‘Thornton,

- 267 F. 2d 459

Pariser v. City of N.Y., 146 F. 2d 431, 433

Pennoyer v. Neff, 95 US. 714 ......

-

- Pet Milk Co. v. Ritter, 323 F. 2d 586

_ Powell v. Alabama;.287 U.S. 45 ...

Prater v. Boyd, 263 F.2d 788 2

. Price v. Johnston, 334 U.S. K 291

Priest v. Las Vegas, 232 U. : gli SOP ES

Randolph © v. State, 265 S. W. ay 114

Rees v. City of Watertown, 86 U.S. 107, HB

Reeside v. Walker, 13 L. ed. 693. :

Roberts v. Monroe, 193 S.W. 734, err. dism.

Roberts v. U.S. District Court, 339 U.S. 844

Rodriquez v. Richmond, 234 S.W. 2d 248 =

‘Roller v. Holley, 176 U.S. .398

. Romero v. King, 1962;Sup. Ct., Mich., 117 NW. 2d 119 ;

Ex Parte Rowland, 104 U.S. 604

San Jacinto Oil Co. v. Culbertson, 100 T. 462,

101 S.W.197 .......

Sibbach v. Wilson & Ce., Inc., 312 US. Pe

Simler v. Connor, 372 U.S. 221 ..

.. Simon v. Craft,.182 U:S. 427

Southern Ry. Co. v. Jackson, 375 U.S. 837

Speiser v. Randall, 357 U.S. 513, 525 -

State Ex rel. Merriman v. Ball, 116 T. 827,

296 S.W. 1085

Steddum v. Kirby Lumber Co., 110 T. 513,

221 S.W. 920 ......

"Talbert v. Muskegon Construction Ca,

9.N.W. 2d 572 . : @

; ae OF iaoteesnie aiameeen

i " Miscellaneous i

‘Corpus Juris Secundum, Vol; 16A, p. 834 i a)

Page

Melani Employers’ ‘Ins, Ass'n. v. Roberts, 135 ie

. Tex. 123, 189 S.W. 2d 80 .......: initinamadenstocsdia ai

Texas & P. Ry. y. Van Zandt, 159 Tex. 178, Gas ae

317 S.W. 2d 528 Tea? : ..16

- Thorne v. Moore, 101 T. 205, 105 Ss W. DOD Sic cicpnsicciness 16

_ Townsend v. Sain, 872 US. 293, 316 ....... isindareaesle

Ungar v. ‘Saratfite, 11 L. ed. 2d 921, 938 .................., 28

U.S. v. Addison, 16 L. ed.°304 Pie OR 29,31 .

USS. v. Carter, 270 F. 2d 521 3.0... Te

_ U.S. ex rel Collins v. Claudy, 204 F. 2d 624. rae 10

US. v. Hester,.325 F. 2d 654 ess aieskon . 5 |

U.S. v. Dern, 289 U.S. 352, 359... : ; _ “Crea

Vogt v. ' Bexar County, 23 S.W. 1044’ ..1...4:.......... 26

‘Wheeler v. Oxford, 321 S,W. 2d 188 tr achtes, F

Whitaker v- McLéan, 118 F. 2d 596 ; : .26 °

White v. State, 122 S.W. 2d’714. a.)

_ ‘ | Williams v. People of State of N.Y., 337 U. S. 241 aed

Wright Vv; Swayne, 140 S. ie Tk nce : 31

. B., Constitutional Provisions and Statutes

US. Conmtdtation, Amendments VI, XIV .. Gtiationaleseabing 3, 7, 15,16,

20, 21, 22

Texas Constitution, Art. I, Sections (| 3 8) Sn eee 15,16 |

Texas Constitution, Art. V, Section 10 15, 17, 22

28 U.S.C., Section 1257 (3) Patol A

’ Texas Probate. Code, Section 342 ...._...... b....4,-6, 10 ,29

Tex. Rev. Civ. Stat., Ann. Art. 1970-345 ...... cal 31

Tex. Rey. Civ. Stat. Ann. Art. 2092, Sec. 18, 21 811

. ‘Tex. Rules of Civil cepa ‘Rules 7, a and 21b .......... 14, 30

'_ Declaration of Independence ; a ‘21

Magna Carta .. : ssid al 21°

Steakley, Zollie,““Our Gueat Twin Peaks: ; 7

An Independent Judiciary and Respect for the Law,” .

Texas Bar. Jounral, Vol. 28, No. 5, — it | pane, ae

5 al

_—

SUPREME COUR OF THE UNimen STATE |

Ce. TERM 1965

_ A.-L. CROUCH, PROBATE JUDGE, Petitioner

ar : ae > m |

WILLIAM E. SHIELDS, JR., GUARDIAN, Respondent 3

‘Petition for Writ of Citta’ ‘to the Court of Civil

ae for the Fifth Supreme Judicial District

ot ‘Texas at Dallas 3

A. L. Crouch, Judge of the County ‘Probate Court ©

of Tarrant County, ‘Texas} respectfully prays that a

' writ of certiorari issue to review the judgment of the.

Court of Civil Appeals for the Fifth Supreme Judicial ©

‘District of Texas at Dallas, entered in this cause on

Deceaher 4, 1966. tay ye

“OPINION BELOW :

The judgment of the 17th District Court of Tarrant

County, Texas, in Cause No. 33761-C, granting man-:

* damus to William E. Shields, Jr., guardian, against

A. L. Crouch, Probate Judge, on March 19, 1004, is.

‘appended hereto’ (Appendix A). |

‘The opinion rendered by the ‘Wa of Civil Appeals

'-- sfor the Fifth Supreme Judicial District of Texas at

Dallas, on December 4, 1964, affirming. the judgment

fee

.

Behn SA eRe Salted De Dyes .

: :

— > e °

wh en Ae ORR, Hist 9 a oho, Brae

- the District Court i is reported at 385 S. W. 2d 580.

(Appendix B) . :

On March 31, 1965, the Supreme Court of Texas

refused the application of Petitioner for Writ of error

- without opinion, 8 Tex. Sup. Ct. Jnl. 24 (Appendix

_ C), and on May 5, 1965, Petitioner’s motion for re-

hearing of the application for writ-of error was over-

ruled, 8 Tex. Sup. Ct. Jnl. 29, 400 (Appendix D). |

_ JURISDICTION.

The judgment of the Court of Civil Appeals for the

. .. Fifth Supreme Judicial District of Texas at Dallas

was entered on December 4, 1964. (Appendix B). -

The Supreme Court of Texas refused timely appli-

cation for writ of error on March 31, 1965, (Appen-

dix C) and overruled Petitioner’s motion for rehear-

ing on May 5, 1965, making final the decision of the

Court of Civil Appeals (Appendix D). |

The jurisdiction of this court is invoked under 28 |

_U. §..C., section 1257 (3), in that the Texas Courts |

have deprived- Petitioner of certain rights without .- .

' due process of law, contrary to the Constitution of the

United States.

QUESTIONS PRESENTED

1. Whether Petitioner was deprived of due process

of law by the Trial Court’s denial to him of his con-

- gtitutional right to adequate notice of the eetemes

. lawsuit. |

2. Whether Petitioner 1 was heasluish of due prdcees |

3

*) a law by the Trial Court’s denial to him of his con- —

stitutional right to trial by jury. :

3. Whether - Petitioner was deprived of due process

of law by the Trial Court’s denial to him of his con-

stitutional right to a: fair and impartial. hearing.

‘CONSTITUTIONAL PROVISIONS INVOLVED pe

The - Constitutional provisions involved are the

Seventh Amendment, and the equal protection and due

process clauses of the Fourteenth Amendment. The

State Constitutional provisions and statutes referred

to are only incidentally connected with the’ federal

‘questions raised. 3

STATEMENT OF THE CASE. ,

For: the first. time in the history of Texas, a County 7:

-. Judge has been entrapped into a mandamus hearing

with deceitful, ambiguous, and inadequate notice and

without. reasonable opportunity to empey counsel or

prepare his defense.

~ For the first time in the history of Texas, a Coupty

Judge, who had his lawsuit taken off the non-jury —

setting by one District Judge, has been haled ‘into

the same court by an unsigned order of another Dis-

trict Judge, to whom the case had been illegally trans- —

ferred, to show cause why his fundamental right of

‘trial by jury, recognized. and granted by the first Dis-

tric Judge, should not be denied by the second Dis-

trict. Judge,.who made certain “findings of fact” for

the record after ruling arbitrarily that there were no

disputed fact issues for a jury to determine. —

4 "a

For the first time in the history of Texas, a County

Judge has been denied a fair and impartial hearing in —

a fair and oa cio tribunal, contrary to. due abeune

. of law. >

__ v. Sharpe, 847 U. S. 497.

' For the first time in the sesicy of Texas, a County

Judge, who has been sued in his judicial capacity, has ©

had the court costs taxed a LE him in his individual

capacity.

Equal protection of the atin” is a more explicit.

safeguard of prohibited unfairness than due process —

of law, but a discrimination may nevertheless be so

unjustifiable as to be violative of due process. Bolling

~

Petitioner’ ‘alleges that Respaident tiks failed and

refused to comply with the unambiguous terms of the

Texas Probate Code, has not exhausted his adminis-

. trative remedies, and has failed and refused to comply

with reasonable conditions precedent to further action

on the part of Petitioner set by him in the exercise of

_ his judicial discretion. Petitoner further alleges that —

Respondent does not, therefore, come into court with

clean hands, and should be denied the “writ of grace”

which is a drastic and extreme remedy (especially —

against judges) reserved for only the most extraor-

dinary situations. Atlass v. Miner, 265 F. 2d 312; U.S.

v. Carter, 270 F.. 2d 521; Panhandle Eastern Pipe

Line Co. v. Thornton, 267 F. 2d 459; Green v. Murphy, .

259 F. 2d 591; Frost v. Yankwich, 254 F. 2d 663;

Nielsen v. Hoffman, 270 F. 2d 693; Prater v. Boyd,

268 F. 2d 788; Aday.v. U. S. District Court, 318 F. 2d

588; Ackert v. Bryan, 299-F. 2d 65; Hoffa v. Gray, 323

oA .

_. F.2d 178; U.S. v.Hester,. 325 F: 2d 654; Pet Milk Co.

_ v. Ritter, 323 F. 2d 586.

REASONS FOR GRANT ING THE WRIT

The Hon. Zollie Steakley, Associate J ustice of the

Supreme Court of Texas, writing in The Texas Bar

Journal of May 22, 1965 (Vol.:28, No. 5.), has recent- .

ly summed up most eloquently the urgent importance

of an independent judiciary : “Government of laws and

not of men,” he said, “is the watchword of democracy ;

. to do justice is the highest achievement of man;

and. . an independent judicial system is the keystone

of our + American system. * * * Judgments rendered

in courts must be unimpassioned ‘and essentially ob-

jective. The only pressure that can be felt is that of

the judicial conscience, albeit within the limitations :

and subject to the infirmities of human frailties. With- oe

_ out it, the judiciary as the indispensable cornerstone

of our governmental system will fall, and the edifice’

of our way of government will crumble into dust.” |

As so aptly expressed in Hydraulic Press Mfg. Co, __

v. Moore, Judge, 185 F. 2d 800: “Mandamus, pro-

hibition, and injunction against judges are drastic and

extraordinary rémedies which are reserved for extra-

ordinary causes.”

The simple question for the Siuptienie Court of the

United States to answer is whether the State C of

of Texas were justified in invading the judici

dependence of a County Probate Judge through the

drastic and extraordinary remedy of. mandamus on

behalf of a guardian who insists on selling real estate

belonging to his two minor wards without first com-

6

plying with the plain unambiguous terms of the Texas

Probate Code and without first complying with certain }

reasonable conditions precedent set by the Probate

_ Judge in the exercise of his judicial discretion.

PRESENT ATION OF FEDERAL QUESTIONS

_’_ Petitioner preserved the federal questions in the fol- __

lowing manner in the District Court: he filed timely .

' written motions for Coritinuance (Tr. 24), Jury Trial

(Tr. 10-11) and Disqualification of the Trial Judge

(Tr. 21-23). The original trial judge disqualified him-

self, and a verbal motion to disqualify Judge Louis

Holland was dictated into the récord. (S.F. 24-26).

All of these motions were overruled by Judge Holland;

with exceptions taken by Petitioner. Petitioner filed

a timely motion for rehearing in the Court ‘of: Civil —

Appeals, asserting 30 alleged errors: of that court,

_ including specifically denial of constitutional right to

jury trial (Appendix E) and adequate notice (Appen-

dix F), and inferentially, in all 30 assignments of

“error, unfairness on the part of the trial judge, which . .

“was such a plain error as:this court may notice, al-

: though not assigned or specified.” Sibbach v. Wilson.

& Co., Inc., 312 U. S. 1. The final paragraph of Point

. Til of this application i is a direct quotation from Peti-

tioner’s Motion for Rehearing filed in the Texas Su-.

preme Court, wherein all three of the federal grounds

weer Sees amet he the final time. |

a

|

. i

Petitioner was ‘deprived of:due process of law by

the Trial Court’s denial to him of his constitutional -

right to adequate notice of the mandamus lawsuit.

The Dallas Court of Civil Appeals erred in. sustain- ;

ing the District Court’s denial to ) petitioner of his Con- |

stitutiondl right to adequate notice and.reasonable °

time to secure-counsel and prepare a defense to the

lawsuit against him, and a reasonable and fair op-

portunity of being heard in his own defense, as guar-

anteed by the XIVth Amendment *. She Meexcn rca :

of the United States.

On March 8, 1964, respondent. filed his taal peti-

tion for.mandamus in the 17th District Court of Tar-

rant County, Texas; and the Hon: Charles J: Murray,

Judge of said court, by written order, set a hearing

_on the petition for March 19th at-10 o'clock a.m. (Tr.

(12).

~ However, on ‘Marth +h 6th, petitioner. paid his ji jury / fee

to the District Clerk; and, on March 9th, Judge Mur-

ray wrote.a letter to both parties which read, in part, -

as follows: “I have been-advised that the respondent .

(petitioner) has paid a jury fee in this case. I am ~

therefore cancélling the setting of March 19, 1964.” :

(Tr. 22)

Then, on March 16th, -without doles to petitioner, :

respondent filed a motion to .reset the case for March

19th at 10:00 a.m., which motion was presented pri-

vately to Judge Murray i in his chambers (S.F. 8-12),

without notice to petitioner. A so-called “writ of in-

_* junction” (Tr. 30) (S.F. 5) was served on petitioner -

My .

8

‘the same day at 11:00 a.m., allegedly based on an.

order signed by “Judge Louis Holland, presiding,” 3

but no written order was ever signed prior to the

hearing on March 19th disqualifying Judge Murray,

or transferring the case to Judge Louis ‘Holland, or

“setting the case for trial.on that date (Tr. 30-31), al-

though Art. 2092, Sec. 21, of the Revised Civil Stat- .

utes of Texas, provides that. “. . every judgment and. 7

order shall be entered :i ‘in. the itis of the Court in

which the case is sures ay and at the time the judg-

ment or order is rendered . . .” (Tr. 31). oe

_ Judge Louis Holland admitted from the bench at —

the beginning of the trial that he was familiar with |

this statute (S.F. 7), but had not signed the order

setting the case for trial-intil “this morning.” (S.F.

6) He stated: “I talked to the clerk (over long-

distance telephone). I gave her oral instruction to set .

the case down and to.issue the notice.” (S.F. 6) But

when the clerk appeared as a witness, after respond-

~ ent’s attorney had testified that the order was reduced |

to writing at the time of the unethical (Tr. 30) ex-

parte one-hour conference (S.F..12) in Judge Mur-

ray’s chambers (S.F. 9), all she had was a written

memorandum with five or six words on it (S. F.. 23;

25), hardly adequate notice of a mandamus hearing —

on the merits, when typed on a “writ of injunction”

form (S.F. 5, 6), and granted in response to a motion -

“to show cause why a jury trial should not be denied,”

(Tr. 18-14) and “why the hearing scheduled for the

19th of March, 1964, at 10:00 a.m. should not be re-

~-instated.” (Tr. 18) Judge Holland refused to permit

. the clerk to “identify these papers ...for the record,”

by declaring: “They are part of the record.” (S.F.

23) But a careful search of the Transcript reveals no

sueh document; and the “writ of injunction” which

was served on petitioner is also ne ascrte by its

absence from the record.» =

Durify the course of the iéasing (S.F. 96-97), peti-

tioner testified: as follows: “I have heard through

hearsay around the Court House that Mr. Lattimore

_ is considering filing criminal charges against me for

_ something or other . . .” Because of this rumor and the

- ambiguity of the “writ of injunction”. which was de-

livered to him, petitioner went to the District Clerk’s

office before the hearing on March 19th to see exactly

what written order had been, signed by the Judge who

- had made the setting, to determine what claims or

- charges were being asserted | against him. |

And at 9:55 a.m., only five minutes before the

“hearing,” petitioner filed a Plea. in Abatement. (Tr.

‘ 29-31), in which he alleged: “that he, with the assist-

ance of the District Clerk, has made diligent search of

7 the records of the District Clerk’s office and has found

no order signed by Judge Charles Murray, or any

judge acting in his behalf relating to said purported

order. That the only order which appears in the rec-

ords of said cause with reference to a setting is an

Order signed by Judge Charles.Murray on March 9, .

- 1964 announcing that the setting for March 19th has

been set aside by reason\of the fact that a jury fee

had. been paid by the defendant.“* * * No order has

' been entered disqualifying Judge Charles T. Murray.

from hearing the case. No order has been entered .

transferring the ‘case to Judge Louis Holland. No

O°

10.

- order has been entered setting the case for trial.

- Therefore, there. is no judge to hear the case, and -no

time or place for it to be heard, as a matter of law.” -

The plea in abatement, however, was. overruled by

Judge Holland (S.F. 7), who produged ar order for

petitioner’s inspection (S. F. 5-6) which. had * been

. signed by him after the hearing had: actually gotten

underway!

Pennoyer v. Neff, 95 U.S. 714, requires persciial

service of actions which are in personam. Due process

of law requires reasonable notice of the charges. Wil- |

liams v. People of State of N. Y., 337 U.S. 241. There

shall be a regular. course of proceedings in which no-

*tice:is given of the claim asserted and an opportunity

afforded to defend against it. Simon v. Craft, 182

_. U.S. 427. Establishment of essential issues must be

-after reasonable notice. U. S. ex rel Collins v. Claudy,

204 F.2d624. —

By way of background, since an asserted denial of

due process of law is to be tested by an appraisal of -

the totality of facts (Betts v. Brady, 316 U. S. 455),

the modus operandi of respondent’s attorney will be

disclosed by a-brief reference to a previous mandamus

_ Jawsuit he filed against petitioner “three or four -

_ weeks” earlier (S.F. 91), which was also.over the sale.

of land in this. same estate, where respondent also re-

. fused to furnish the statutory exhibit of the condition

_ of the estate (Appendix G), dbjected to the appoint-

' ment of an appraiser and actually went behind the

back of petitioner to get another judge to approve

the sale which was being held under advisement pend-

ing the report, of a oto appraiser - F.

ll

91). In this previous ‘mandamus action, petitioner

only received twenty minutes notice (S.F. 90) befere

_ being ordered by another district judge to deliver over

to respondent certain papers concerning the sale of

that property. As aptly stated by- respondent’s ‘attor-

ney, “the ‘pattern is identical.” (S.F. 91) It is inter-

esting to notice that the motion to show cause why

' the case “Should not be reinstated” and why. “a jury

'- trial should not be denied,”. was sworn to by the at-

_torney on March 14th, two whole days mene it was

filed! .

For. the first time: in the ‘bistoky of Cosen: a county

_ judge has been entrapped into a mandamus hearing:

_ with deceitful, ambiguous, and inadequate notice and

without opportunity to eniploy counsel or prepare his

defense, before“a District J Judge,who had not signed .a

written order setting: the case for trial until the |

' morning of the trial, although Art. 2092, Sec. 18, of ©

~ the Statutes of Texas says: “The court may set any ©

case for trial at any time so as to allow the parties

‘reasonable time for preparations . . .” Under the

e case was not set for trial. until a written’ .

order had been signed, and no such order had been.

efore the parties walked into the court room! .

‘Althou th two different. district judges had issued .

law,

writs of mandamus against petitioner within “three

or four weeks” (S.F. 91) of each other in the same.

guardianship estate, on March 24, 1964, " only 5 days.

after rendition of the judgment in the case at bar, a

companion case; Crouch v: Stanley, 890 SW2d 795, 5.3

(described in petitioner’s application for extension of .

time and respondent’s answer thereto already on file

wy

12

with the United States Supreme Court) was filed in.

a third district. court by. the-same attorney: and same

administratéry who had previously obtained an order

| enjoining petitioner from taking any action whatso-

ever in the William Roy Greene estate, which-order

was set aside on appeal in Crouch. v. Stanley, 348

SW2d_-543. Four lawsuits from’ two attorneys repre-—

senting two estates is something of a record for a

. County Judge, who was asked on the witness stand

(S.F. 83): “I believe that.you, in your campaign for

Probate Judge, ‘assured the voters that you were going

to stop and ferret out stealing from estates and stop,

I believe as: you put, it at that time, exorbitant fees

charged by the attorneys in the estates,-is that not

correct?” What. possible relevancy could this loaded

political question have to a legitimate mandamus

action? - aS ;

Be Pétitiones was denied an opportunity to employ

. counsel ‘by the lack of. adequate notice. The right to

be heard would be . . . of little avail if it did not

- comprehend the right to be heard by counsel. Powell v.

Alabama, 287 U.S.@5. In many cases the court, has

' ° held that absence of counsel amounted to a denial of

_ due process. Hudson v. N. C., 363 U.S. 697; Randolph

- v, State, 265 S.W.2d 114. Petitioner did not raise the

- ‘point of absence of counsel directly in the trial court,

‘because he was of the opinion that he had been sum-

_ moned to a pretrial hearing to show cause why he

.. should not be denied a jury tial and to fix a date for

a future setting of the main. cage. “Are we trying .it

‘on the merits, your Honor, or is-this a pretrial hear-

ing?” (S.F. sche The trial had been under ibid one hour

- 18

before the court sustained respondent’s motion to re-

instate the mandamus case for trial on the merits

(S. F. 31-32). Also petitioner believed, in good faith,

that a guardian ad litem would be appointed by the

_ District Judge to represent the minors “and to help.

| me defend this lawsuit. ”.(S.F. 17).

+ Petitioner experienced difficulty i in obtaining coun-

sel, becatse very few attorneys wish to become in-

volved in a case where one judge is being called upon

to mandamus another. This is most. eloquently demon-

strated by respondent’s own admission (Appellee’s

Brief, p. 21) that: “It can Safely be assumed from the

trial of this case that J udge Crouch.was unable to

‘obtain counsel to represent him in Tarrant County.” ~

Respondent thus apparently discovered that petitioner -

was having difficulty in obtaining counsel, and hur-

ried up the hearing to catch him. without representa-

tion and without preparation. In LaBuy v. Howes

Leather Co., 352 U. S. 249, it was held: “Mandamus

should be resorted to only in extreme cases, since it

' plaees trial judges in the anomalous position of being |

litigants without counsel other than uncompensated

volunteers.” Again, in Hydraulic Press Mfg. Co: v.

Moore, Judge, 185 F2d 800, the same sentiment was

expressed: “Mandamus, prohibition, and’ injunction

against judges are drastic:and extraordinary’ remedies

which are reserved for extraordinary. causes.” Also —

see Roberts v. U. S. District Court, 339 U. S: 844;

and Allstate Ins. Co. v. U. S: Dist. Ct., 264 F2d 38.

_ Petitioner, being unable to secure counsel in time

for the hearing of March 19th, represented himself in

the lawsuit, which he had_a legal right to do. Rule 7,

A nL

.

-

14

iniie Rules of Civil Procedure; Harkins v. Murphy

and Bolanz, 112 SW 136.

It is a matter of common professional knowledge

that ordinarily an attorney must have opportunity to

‘review law and acquaint himself with facts. . . before

he is capable of . . . defending case made by adver-

sary. Court abused its discretion in denying continua- __

tion for absence of counsel .. . Farmers’ Gas Co. v.

_Calame, 262 S.W. 546. In Ex Parte Gudel, 368 S.W. 2d

775, the.court held that where the defendant and his

court appointed counsel have been forced to trial be-

fore the expiration of ten days, the defendant is

denied the effective assistance of counsel.

The Texas Commission of Appeals, in Ex Parte .

Hejda, 13 SW2d 57, has held that: “Due process of

law includes . ... accordance of reasonable opportunity

to prepare for the hearing. a

The term, “due process of law” is synonymous with

“the law of the land,” its essential elements are notice —

and an opportunity to be heard and to defend ‘y

orderly procedure adapted to nature of case, and it.

means a law which hears before it condemns, which

proceeds on inquiry, and which renders judgments

-only after trial. Masonic Grand Chapter of Order of —

Eastern Star v. Sweatt, 329 SW2d 334, ref. n.r.e.

Included within this requisite (fair and impartial —

trial) is an opportunity to be heard, and reasonable

opportunity to prepare for the hearing, which, of

course, encompasses reasonable notice of the claim or

charge against an individual, so as to advise him of ©

the hhature thereof, and of the relief sought. State ex

15

rel. Merriman v. Ball,’116 T. 327, 296 SW 1085;

Steddum v. Kirby Lumber Co., 110 T. 518, 221 Sw

920. ‘s | ;

An elementary | and: fundamental requirement of

due process in any proceeding which is to be accorded

finality is notice reasonably calculated, under all the -

circumstances, to apprise interested parties of the —

pendency of the action,. and ‘afford them an oppor-

tunity to present their objections.. Roller v. Holley,

176 U. S. 398; Priest v. Las’ Vegas, 232 U. S. 604;

Grannis v. Ordean, 234 U. S. 385; Milliken v. Meyer,

811 U.S. 457; A: matvous v.|Manzo, 14 L. Ed 2d 62.

- And.if for some justifiable reason he was previous.

ly unable to assert his rights or was unaware of the .

- significance of relevant facts, it is neither necessary

nor reasonable to deny him all opportunity of obtain-

ing judicial relief. Price v. Johnston, 334 ‘Uz S. 266,

291..

ee |

Petitioner was deprived of due process of law by the .

trial court’s denial to him of his constitutional right

to trial by j jury ; hy

The Dallas Court of Civil Aiisale erred in sustaining

the District Court’s denial to petitioner. of his Consti-

tutional right to trial by jury, as guaranteed by Article

I, Sec. 15 and Sec. 19, and Article V, Sec. 10 of the

Texas Constitution, and by Amendments VII and XIV

of the Constitution of the United States, where

disputed issues of fact were presented by the plead-

ings, demand for jury trial was timely made and the

jury fee was paid. o.

G

16

In Texas, ever since the Constitution of 1845,.a .

- ‘party is not deprived of a jury ‘trial in a suit of an

equitable nature. San Jacinto Oil Co. v. Culbertson,

100 T. 462, 101 S:W. 197. But federal courts have

held that the remedy by mandamus js at law. U. S. v.

Dern, 289 U. S. 352, 359. |

In civil cases for the trial of a cause, wherein a

fact situation is raised by the pleadings, either party

is entitled to a jury upon a demand made to the court

and the payment of a jury fee. Hammond v. Ashe,

103. T. 503, 181 S.W. 539; Thorne v. Moore, 101 T.

205, 105 S.W. 985; Blair v. Pagg, Com. App. ae

S.W. 639.

| Thus, there can be no dispute with the proposition

that in an original mandamus proceeding there exists

the right to trial by jury if the pleadings present

disputed issues of material fact, there has been timely

demand for a jury; and the jury fee has been paid.

- Roberts v. Monroe, 193 S.W. 734, err. dism.

This right i is guaranteed by the Texas C Constitution,

and by the Constitution of the United States. Refus-

. ing this constitutional right to trial by jury is error

of such a nature as to raise inference of probable

harm within the meaning of the harmless error rules.

Texas & P. Ry. v. Van Zandt, 159 Tex. 178, 317 S.W. |

2d 528; Cleveland & Sons v. Smith, 102 Tex. 490, 119

‘S.W. 843. The verified petition and verified answer on |

file disclose that major disputed issues existed in

_ the pleadings. In this state of the record there can be —

no basis for refusing to empanel a jury.

Where there are no disputed issues of fact, the sum- |

7

mary judgment, directed verdict, and judgment not-

withstanding the verdict are available to the parties

and trial judge. But there are no other means by

which a trial judge may rule that there are no dis-

puted issues of a material fact, denying a party his

right to trial by jury. There is nothing in the record

to show that the refusal of right to trial by jury would

have interferred with the handling of the docket, de-’

layed the trial, or operated to the appellee’s injury.

ef. Erback v. Donald, 170 S.W. 2d_289, err. ref.

The respondent’s burden in this case was to: prove _-

that a mandamus should lie against the Probate

Judge as a matter of law. As part of his burden it was ©

“Incumbent upon him to prove undisputed facts show-

ing a clear legal right to the relief. Under the’ plead-

ings, material facts alleged by him weré. disputed. It .

. was fundamental errer to deny a jury in such a case. .

Cleveland & Sons v. Smith, 102 Tex. 490,.119 S.W.

842.

The question of whether a jury finding: on issues is

required depends on only one thing: Does the record, —

including the statement of facts, reveal that a directed

verdict would have been proper on all material issues

-of fact? The error of the judge in refusing to permit

a jury to consider issues of fact is dramatized by his -

determination of seven “findings of fact” (Tr. 41-42),

_ which only | a jury may make. Texas Constitution, Art.

5,.Sec. 10. :

In this case the harm which was done the Probate

Judge in denying him a jury trial: is conclusively

’ demonstrated by soins that. the trial court would’

18

have been forced to submit the'-case to a jury. If a

directed verdict would have been improper, this case

- must. be-reversed-for-trial,—since .the.district_court _

held there were no disputed issues of material fact.

This determination can be made only if there is no ©

evidence contrary to the trial judge’s findings, or

where the evidence is of such a character as to be of

no probative force or value. Air Conditioning, Inc. v. —

Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W. 2d

422. Further, uncorroborated testimony of & party will

not justify giving an instructed verdict. T'exas Employ-

ers Ins. Ass’n. v. Roberts, 135 Tex. 123, 189 S.W. 2d 80.

_ Viewed by such standards, there can be no justifica-

- tion for the denial of a jury trial. Mandamus may

even be granted to require jury trial where it has

- been improperly denied. Beacon Theaters, Inc. v.

Westover, 360 U.S. 500.

_ Respondent admits, in a motion filed on March 16,

1964 (Tr. 12-14), that: “. . . Judge A. L. Crouch ©

notified the Honorable Charles Murray that he,

‘ Crouch, had deposited with the clerk of the 17th

District-Court, a ‘jury fee,’ and thereafter, on the

13th day of March, 1964, A. L. Crouch filed his Mo-

tion requesting a trial by jury. The jury fee having

been paid, the hearing scheduled for March 19th,

1964, has been discontinued.” In the same motion, re-

spondent requested the trial ‘court to set a hearing for

petitioner “to show cause, if any he has, why the

motion of A. L. Crouch for a jury trial should not be -

denied.”

In response to the aided show-cause order,

ee — in the district court on March

19°

19th, 1964, to show cause why he should not be denied

a jury trial. Petitioner was thus faced on his first

appearance in the court room with the task of over-

~-—~--eoming an adverse ruling on his right to a jury trial

. made-by a substitute judge, who in effect was revers- |

ing an earlier decision made by the original trial judge

when he took the case off the non-jury setting. As the © 3

United States Supreme Court said, in Armstrong~v.

_ Manzo, 14 L ed 2d 62, 66: “The burdens thus placed

. . upon the petitioner were real not purely theoretical.

For ‘it is plain that where the burden of proof lies

may be decisive of the outcome.’ Speiser v. Randall,

357 U.S. 518, 525...” Then, after wrongfully shift-

ing the burden of proof to petitioner, the trial judge *

‘overruled the motion for jury trial without reading

the voluminous pleadings, except during the first fif-

teen minutes’ the trial was in progress (SF 5), and.

without permitting petitioner to argue the law or: to

introduce one word of evidence in support of his Con-:

stitutional right to trial by jury. (S. F. 29-30).

In N.L.R.B. v. Botany Worsted Mills, 106 F. 2d

263, it was held that: “Due process requires that ‘the

one who decides . . must . . . read the material on.

which the dadiaion § is based.” In wi 1963 case of Town- |

send v. Sain, 372 U.S. 298, 316, the Court said: “If

_ the state trial judge has made serious procedural

errors ... . in such things as the burden of proof, a -

federal hearing is required. Even where the procedure

employed does not violate the Constitution, if it.ap-

_ pears to be seriously inadequate for the ascertainment

of the truth, it is the federal judge’s duty to disregard

the state findings and take evidence anew.” See Har-_

20

rison, Mo. Pac. Ry. Co., 9 L. ed. 2d 711, 1968, wherein

the Supreme Court of the United States, on certiorari,

held that the foreman’s testimony was sufficient to

support the jury’s finding of reasonable forseeability

of harm, and that the Illinois courts improperly in-

vaded, the function and province of the jury. See also

- Southern Ry. Co. v. Jackson, 375 U.S. 8387; and |

~ Basham v. Penn. R. Co., 10 L. ed. 2d 80. 7

Trial by jury-is a vital and cherished right, ‘Sieawal

in our judicial system ... And... as the right of'jury

- trial is fundamental, courts indulge every reasonable

presumption against waiver. With the arrival of this

appeal there remains but little doubt that our fancy

new rules of peremptory practice are being regularly

employed—subtly and effectively—to circumvent the ©

revered and hitherto guaranteed right to have pre-

sented issues of fact tried to and decided by juries.

For attestation of such right, as it was in the begin-

ning, is now, but—if current sly schemers do havé

their way—will never hence be, see U. 8S. Const.

Amend. VII . . ..Romero v. King, 1962, isc 8 Ct.,

~ Mich., 117 N.W. 2d 119.

The federal policy favoring jury trials i is of historic

and continuing strength. Only through a holding that

the jury-trial right is to be determined according to.

_ federal law can the uniformity in its exercise which is »

demanded by the Seventh Amendment be achieved.

Simler v. Connor, 372 U. S. 221.

The right (to j jury trial) guaranteed by the Federal |

Constitution is one of substance, not mere form or ©

procedure. But it is a substantive right which flows

21

from. the Federal Constitution which is the Supreme

law of the land, and which cannot be impaired or

taken away by state constitutional or statutory pro-

visions. Diedrich v. American News Co,, 128 F. 2d -

144, We accept Betts v. Brady’s assumption, based as

it was on our prior cases,. that a provision of the Bill

of Rights which is “fundamental and essential to a

fair trial” is made obligatory upon the States by the

Fourte€nth Amendment. Gideon v. Wainwright, 372

U.S. 335, and Malloy v. Hogan, 378 U.S. 1. “The Court

has rejected the notion that the Fourteenth Amend-

ment applies to the States only a. watered-down, sub-

jective version of the individual guarantees of the Bill

of Rights.” Malloy v. Hogan, pp. 10-11. :

To preserve his right of trial by jury, petitioner

filed a timely Motion in the District Court si

10-11), which reads, in part, as follows:

“The Magna Carta, wrested from a defiant

King by the people of England on June 15,1215,. —

A.D., guaranteed the right to dpiet trial ‘. ‘ . to

all free men of this our realm . . . to be kept i in -

_ our Kingdom of England for ever.’ * wait

“The Declaration of Independence, in enumer-

” ating the grievances against an intolerable des- |

potism overthrown by the American Revolution

contains the following recitations: ‘The history

of the present King ‘of Great Britain is a history

of repeated injuries and usurpations, all having

in direct object the establishment of an absolute

Tyranny over’ these States ... . depriving us in

many cases, of the benefits of Trial by Jury.

In every stage of these Oppressions We have

Petitioned for Redress-in the most humble terms:

Our repeated Petitions have been answered only’ .

-

by repeated i injury” *** 3

. “The Bill of Rights embodied in 1 the Consti-

tution of the United States of America (Amend-

_ ment he —— in plain and unambiguous

language: ‘ , the right of trial by jury shall be

preserved .

“ The Constitution of the State of Texas (Ar-

ticle 5, Section 10) provides as follows: ‘In the

trial of all causes in the District Courts, the .

plaintiff. or defendant: shall, upon application

made in open court, have the. right of trial by -

jury . . * * .

| “WHEREFORE, PREMISES CONSIDERED,

‘this defendant ‘petitions for redress in the most |

humble terms,’ insisting upon that precious right

of jury trial purchased by the shed blood of patri- -

ots, and for the preservation of which the found-

ing fathers of our Republic. affixed their signa-

tures to that holy instrument of Independence, .

which concludes with the following immortal

words: ‘And for the support of this Declaration, |

we mutually pledge to each other our taveR our

Fortunes and our sacred Honor. oe

te

Petitioner was deprived of due process of law -by

the ‘Trial Court’s denial to him of his constitutional 3

right to a fair and impartial hearing. 7

The Dallas Court of Civil Appeals erred i in sustain-

ing the District Court’s denial to petitioner of his

constitutional right to a fair and-impartial hearing in

a fair and impartial tribunal, as guaranteed by the

XIVth Amendment. of the Constitution of the United _

States.

P 23 e ‘

When petitioner entered his appearance 'in the Trial

Court on March 19, 1964, it: was subject to a motion

for contiriuance (Tr. 24), in which. he alleged “that

he has not had adequate time in which to prepare his

‘defense to a complicated and technical lawsuit involv-

_. Ing many questions of fact as well as law... .” But.

the trial judge, instead of allowing petitioner to argue

his constitutional right to.adequate notice and a rea-

sonable time to prepare a defense to the lawsuit

against him, made the following incredible announce-

ment: “I ‘overrule. your motion for continuance.

What’s it based upon (S.F. 13)?”

. Wher petitioner attempted to demand his entistite-

tional right of trial by jury, he was confronted with’

. the same arbitrary indifference to his rights as an

American citizen. The official record is an mane

expression of denial of due process :

“JUDGE CROUCH: Now,. your Honor, I come to

my motion for a jury trial. THE COURT: That mo- |

.. tion is overruled. * * *:JUDGE CROUCH: Your Hon-’.

or, I haven’t been permitted to say one word; I haven’t

been permitted to introduce one witness, not one word -

of evidence from that stand. THE COURT: I over-

-Yule your motion for a jury trial. (S.F. 29-30).” This °

peremptory ruling is especially significant in light: of

-. the fact that petitioner was cited to appear and show

cause why he should not be deriied a jury trial, a bur- .

den of proof:never contemplated by the framers of .

‘the Constitution of the United States. Armstrong v.

Manzo, 14 L. ed. 62. Ungar »v. Sarafite, 11 L. ed. 2d’,

921, 938 holds that: “It is a travesty on ere: to al-

low a judge who has announced his decision , . . prior

. 24 |

to the trial to sit in judgment at the trial.”

_ The trial judge demonstrated such “a myopic insis-

. tence upon expeditiousness in the face of a justifiable —

_ request for delay” that petitioner’s right to defend —

was reduced to “an empty formality.” Chandler v.

| Fretag, 348 U. S. 3. For example:. “Let’s move into

- ‘the next motion (S.F. 4).” “Let’s hear the next motion

| ” (S.F. 4).” “All right, let’s get ‘along with it then .

‘\.__ (S.F. 7).” “I camé down here to move into these mo-

\. tions and hear them and get them over with. (S.F.

~ \. 7)” The. conduct of a judge in hurrying a case pre-

‘¢ipitately .. . could amount. to a denial of due process —

of. law. Corpus Juris Secundim, Vol. 16A, p. 834.

The record clearly indicates bias in the matter of

. opening arguments. Petitioner’s complaints appear in

_the record .as follows: “Your Honor, he had fifteen

minutes to make a speech to the Court and I have not

been able to say a, -word.,. FHE COURT: I will hear’

you. Do you want to-make a speech?.(S.F. 37) * * *

‘Let the record show I have had two minutes to make

my opening address to the Court and that I have been

refused the right to read my answer. and I take an.

| exception (S.F. 39).” Fair. play i is the essence of due.

- . process. Galvan v. Press, 347 U.S. 522. As stated in :

‘Pariser v. ‘City of N. Y., 146 F. 2d 481, 433: “The

judge should exercise self-restraint and ‘preserve an

atmosphere of impartijality.”

As previously pointed . out in: developing the ques- |

tion of adequacy of notice, the. lawsuit had been

undér way for an entire hour before’ even the judge

~ knew..what was being tried (S. F. 31-32). Petitioner

a did not know ‘whether. he was in court on a pre-trial:

-

me co, ™ |

hearing, an injunction, a mandamus,. or a criminal

complaint.-In two diffefent places in the record, it

appears that petitioner was being tried on criminal

charges, which brings to mind the threat of the trial

_ judge in Knapp v. Kinsey, 232 F, 2d 458 that: “I am

in charge of the criminal docket.” The trial judge

was guilty of a flagrant. disregard of the standard of

decorum set forth in Brown v. Walter, 62 F. 2d 798,

800: “Justice does not depend upon legal dialetics so

much as upon the atmosphere of the court room, and

| that i in the end depends upon the judge.” Not only did

the trial judge engage in “fiery clashes” with petition-

er, but he made repeated threats to send petitioner to

jail for merely attempting to preserve his legal rights

(see contemporary newspaper’ clippings appended

‘hereto as appendices).'In addition to these indignities,

the trial judge permitted respondent’s attorney to try

petitioner (at least in the newspapers) for a felony

punishable by a $5,000.00 fine or five years imprison-

ment (S.F’. 98). Consider the following extracts from

the official record: “Your Honoy, am I on trial here?

THE COURT: Yes, sir, you are: A. This is not a

Criminal Court, is it? THE COURT: Not exactly.

(S.F. 91) * * * A. Your Honor, ...I have heard...

that Mr. Lattimore is considering filing criminal

charges against me for something or other . . . The’

Court has already made the statement that I am on

trial... (S.F. 96-97).”

The Seeseitilads of the court room” may perhaps

be best’ reflected through the description offered dbya .

newspaper report in the Fort Worth Press of March ©

19, 1964 (Appendix I): “A Montague County dis-

26

_trict judge today threatened to jail Probate Judge

A. L. Crouch for contempt of court. The threat came

after Judge Crouch for the second time demanded that

Judge Louis Holland disqualify himself. * * * In

increasingly fiery clashes with Judge Holland, Judge

Crouch was overruled on every motion or petition he

presented . . . Judge Holland, biting his lips in anger,

_ told Judge Crouch: ‘Take your seat. afd prepare to go

ahead with this trial . . .. The trial continued to be

punctuated with fiery clashes between the two judges.”

In Whitaker v. McLean, 118 F. 2d 596, the Court —

said: “Hostility is a form of bias... But.a right to be

tried by a judge who is reasonably free from bias is

a part of the fundamental right to a fair trial.” In

Craven v. U. S., 22 F. 2d 605, 607-8, it was held that:.

“The bias or prejudice which will disqualify a judge

must be ‘personal’ bias or prejudice as distinguished

from a judicial one.” And again, in Ungar v. Sarafite,

11 L. ed 2d 921, 938: “Judges are human; and judges

caught up in an altercation with a witness do not have

the objectivity to give that person 2 fair trial.”

As applied to procedure, dué process requires a fair

and impartial trial before a competent tribunal. Vogt

v. Bexar County, 5 Tex. App. 272, 23 S.W. 1044.

When the remarks of the judge during the course of .

the trial, or his manner of handling the trial, clearly

indicate a hostility to one of the parties, or an un-.

warranted prejudgment of the merits of the case, or

an aligninent on the part of the court with one of the —

' parties for the purpose of furthering or supporting

the contentions of such party, the judge indicates...

=» ‘

4 D

; 27 é

a personal bias and prejudice which renders invalid

any resulting judgment in favor of the party so —

favored. Knapp v. Kinsey, 232 F. 2d 458; Crower Di

Manno, 225 F. 2d 652..

One of the fundamental rights of a titigant i is or

-he is entitled to a fair trial in a ‘fair tribunal, and

that fairness requires an absence of actual bias or

prejudice in trial of case, and if this basic principle is

violated the judgment must be reversed. In Re Mur-.

chison, 349 U. S. 133, 136; Talbert v. Muskegon Con-

struction Co., 9 N.W. 2d 572; Berger v. U. S., 255

U. S. 22; Moskun v. U. S., 143 F. 2d 129, 130;.

N. L. R. B. v. Phelps, 1386 F. 2d 562; U. S. ex rel

Meers v, Wilkinson, 326 F. 2d 135; and Amos Treat .

& Co. v. Securities & on Commission, 306 F. 2d

260:.

Withovt question, the ultimate expression of un-

fairness-on the part of the Trial Court is the judg-

ment herein complained of (Appendix A), which re-

veals an abuse of judicial discretion in the following

four particulars:

I. The trial judge abused his discretion in ordering

petitioner to “deliver forthwith, all books, ledgers, —

journals, cancelled checks, check stubs, and bank state-

ments of each, the Shields* Development Company and

of the Shields Guardianship on William E. Shields

III, and Katherine Marie Shields; Minors, to Arthur

Young & Company, — public accountants of ;

Fort Worth, Texas ...” for the following reasons:

| (1) Respondent i in his petition alleges that petition-_

er has in his possession certain records of “Shields

oom,

.

28

Development Company” (Tr. 2), which petitioner ad-

mits in his answer (Tr. 15) and which respondent’s

attorney substantiated by his statement in open court

. (S.F. 33-84). But the Shields Development Company

is not a party to the lawsuit and its records cannot be

mandamused by any person who is not acting on its

behalf in the lawsuit as an authorized agent and liti-

gant. The rule, as stated in Collins v. Herd, 295 S.W.

216, is as follows: “Want of necessary parties is fun-

damental and will be noticed as such by appellate —

eourt. Where it appears that all. parties interested in

subject matter of suit are not before court, court is

under duty to raise objection on its own motion and -

'» to refuse to proceed to. judgment.” The same question ©

is raised in Rees v. City of Watertown, 86 U. S. 107,

113: “Are the proper parties before the court to en-

title us to the relief we ask?” Petitioner presented a

timely motion for severance (Tr. 28) (S.F. 26-29),

but the trial court overruled it in summary fashion.

(2) The undisputed record shows that Mr. Tom Jen-

ness, a member of the C.P.A: firm of Arthur Young

& Company, already has in his possession the journal

and cancelled checks of the Shields guardianship (S.F.

75-76); and, this. being true, how can the guardian

be entitled to mandamus the probate judge to deliver

over guardianship records, which he does not have, to

the accountant who-already has them? Mandamus

will not issue to compel: performance of an impossible |

thing. Marion v. Lockhart, 114 S.W. 2d 216.

II. The trial judge abused his discretion in ordering

petitioner to “make an order within’two weeks from

the entry of this judgment, either granting or over-

:

29

sy the application to sell” ie the —— rea-

sons:

(1) An appellate court must take judicial knowl-

edge that a trial judge must have some latitude in

arranging his docket. Gonzalez v. Wright, 151 Tex.

307, 249 S.W. 2d 587; Ex — Davenport, 8 L. ed

537.

(2) Respondent's attorney admitted in open court

(S.F. 35): “. .. if we can’t get it done, the mother

- would have to file a friendly lawsuit to force it to be.

partitioned.” Mandamus does not lie where another

adequate remedy exists. White v. State, 122 S.W. 2d

714; Ex Parte Rowland, 104 U. 8. 604; Reeside v.

. Walker, 18 L. ed 698; Cox v. U. S.,19 L. ed 579... *

(3). Inasmuch as the application dated December

16, 1963, to sell the. ward’s property was not accom-

panied by the verified exhibit (Appendix G) required

by statute (The only exhibit offered into evidence was °

dated November 30, 1962), it was void, and it did not

require the probate judge to act upon it. City of Tyler

v. First National Bank of Beaumont, 46 S.W. 2d 454;

Mullinax v. Barrett, 173 S.W. 1181. When a trial

court refuses to. act upon a matter not in proper form,

no other court has authority to disturb him by man-

damus. Wheeler v. Oxford, 321 S.W. 2d 188; U. S. v.

Addison, 16 L. ed 304.

(4) Petitioner in his verified: answer steel with-

. out contradiction, that he had required respondent to

furnish verifying affidavits to certain guardianship

_ balances and assets, as well'as copies of certain income

tax returns, as conditions precedent to any action on

ad

the application for sale of the subject real estate. (Tr.

16), which conditions precedent were agreed to by

respondent but never complied with. The Amarillo

Court of Civil Appeals, in Miller v. State, 53 S.W. 2d

838, said: “If the conditions precedent had been com-

plied with, then the act of entering an order . . . was.

a plain ministerial duty . . .” However, in Iley v.

Hughes, 311 S.W. 2d 648, the Supreme Court of Tex-

as, in 1958, held that it would “not issue writs of -

mandamus to compel or revise exercise of discretion

by trial courts in exercise of judicial . . . acts.” This

' same rule was announced in Grace Line Ine. v. Pan-

ama Canal Co., 143 F. Supp. 539: “Mandamus does

not lie to compel exercise of judgment or discretion

in a particular way or to direct retraction or reversal

of action already taken in exercise of judgment or

‘ discretion.”

III. The trial aiiie alwied his discretion in order-

ing petitioner to set a hearing within ten days on

respondent’s motion to transfer the guardianship to a

court of concurrent jurisdiction for the following ©

reasons: ; : : ; |

(1) No such motion was ever offered into evidence

and the purported inclusion of same in the transcript

(Trt) shows on its face that it was never filed in

any court, and was’ never in fact executed. Rule 21,

of the Texas Rules of Civil Procedure, requires a

docket entry for every motion filed, and Rule 21b says

that: “Notice of a motion in a suit pending is given

by filing the motion and its entry in the motion

docket.” Respondent’s attorney had -the docket sheet

in court (S.F. a and was under a = to prove

Q

gt a ena eae lg nf

31

that proper notice ‘aa issued before the motion could ;

be acted on-by the court, but this he failed to do. When |

-.a trial judge refuses to act upon a matter not in

proper form, no other court has authority to disturb

him by mandamus. Wheeler v. Oxford, 321-S. W. 2d

188, Gonzalez v. Laughlin, 256 8.W. 2d 236; U. S. v. |

Addison, 16 L. ed 304.

(2) Respondent had not first exhausted his admin-

istrative remedy of requesting the judge of the court

of concurrent jurisdiction to sign such order of trans-

' fer. (Appendix H). Mandamus does not lie where

there is other adequate legal remedy. Marbury v.

Madison, 5 U. S. 187, 96; cotati v. Beavers, 6 Tex.

457.

(3) The statute on transfer of cases is purely dis-

cretionary and mandamus does not. lie to control the

judicial discretion of an inferior court. Ex Parte

Bradley, 7 Wall 364; —— v. ‘Swoayne, 140 “3 W.

221.

(4) Petitioner testified, without diiltecdtietion, that

respondent had abandoned his motion to transfer

(S.F. 139), and that no setting had been requested _

through the orderly processes established in his court |

(S.F. 112) although he was willing to give- one if

‘properly requested (S.F. 113). Mandamus will not

control lower court’s sound discretion as to own prac- —

tices. Ex Parte Davenport, 8 L. ed 537, Gonzalez v.

Wright, 249 S.W. 2d 587.

IV. The trial judge abused his enti in assess-

‘ing court costs against petitioner, because it is well

established that no costs will be awarded against a

| judge acting in his judicial, capacity 0 on -a inistaken

view of the law-

' Kleiber v. McManus, 66 Tex. 48, 17 S.W. 249; Citi-

‘gens State Bank of Frost v. Miller, 115.S.W. 2d 1183;

Browning-Ferris Machinery Co. v. Thompson, 55 S.W.

2d 168; Hawkins v. Flood, 331 S.W. 2d 954; Rodri-

guez v. Richmond, 234 S.W. 2d 248. In the case of In.

Re Haight & Freese Co., 164 F. 688, the court said:

“On a petition for a writ of mandamus against a ©

judge, even where the writ is granted, costs will not

be ‘taxed against the judge, although they may be

against the adverse parties ... . It would be .contrary

to the fundamental rules protecting the freedom of

judicial action to tax costs against a judge... by rea- —

son of any failure to apprehend the law correctly.”

Not only was Judge Louis Holland unfair in the

manner in which he conducted the mandamus case on

the merits, and in the drafting of the mandamus

order, but. the District Judge subjected petitioner to

the indignity of being forced to trial in his own court

room on the necessity of a supersedeas bond. Accord-

ing to an account in the Fort Worth Press of April 1,

1964 (Appendix J): “Probate Judge A. L. Crouch.

today stood in front of his own bench and heard an-

other judge sitting here order him to-post a $5,000

bond. Administrative Dist. Judge Louis Holland_ of

Montague County occupied Judge Crouch’s seat.”

. But the ultimate expression of unfairness came in -

the form of a contempt of court hearing which oc-

curred on May 15, 1964. The District Judge attempted

to usurp the — to send <a to jail for

ony

33

failing to obey the terms of a mandamus order after

the Probate Judge had perfected his appeal to a higher

_ court. The bond was ordered posted on April 1, 1964

(Appendix J);.and a contempt motion was filed on ~

April 17th (Appendix K); but the contempt hearing ~

was not held until May 15 (Appendix L), so the Dis-.

trict Judge had six weeks to look up the law on

whether or not he had jurisdiction over the contempt

motion.

Justice is not a single-edged sword. It works im-

partially, for all alike. When the trial judge refused |

Petitioner’s timely request for.a jury, refused to grant

his Motion for. Continuance, forced him to trial with-—

out sufficient time to employ counsel or prepare his

defenses, denied him the right to call witnesses or

present evidence-in support of his preliminary mo-

tions, overruled other motions and objections sum-

damus compelling Petitioner to do. acts ‘which were

discretionary, and taxed costs against him in his in- -

dividual capacity, this judge did violence to the very

system of laws which he found Petitioner guilty of

flouting. Viewing the record as a whole, Petitioner

was deprived of his Constitutional right to a fair and ©

_ impartial hearing in a fair and impartial tribunal. .

Due process of law generally. implies and includes a

fair trial; free from suspicion of partiality, according

to some settled course of procedure, and a reasonable

time for. preparation for trial. The fact that the judg-

ment of a court may be justifiable on the merits does

not obviate the Constitutional requirement of a fair.

trial as essential to due process of law. ae

- $84

CONCLUSION

_. For the foregoing. reasons, it is respectfully re-

quested that this Petition for Writ of Certiorari be

granted. x

: Respectfully submitted, es

A, %& CROUCH, ‘Pro Se

_ JUDGE OF COUNTY PROBATE COURT

Tarrant County Court House ©

Fort Worth, Texas

a

- \

4

%

CERTIF ICATE OF SE VICE |.

This is to certify that on the “/Y\ day of July, A.D.

_ 1965, a true and\correct copy of the foregoing Peti-

tion for Writ of Certiorari to the Court of ‘Civil Ap-

peals for the Fifth Supreme Judicial District of Texas

»was served upon the Hon. Hal Lattimore Jr., Con-.

tinental Life Building, Fort Worth, Texas, end the .-

Hon. Joe Burt, Continental Life Building, Fort Worth,

Texas, counsel ‘for respondent, by depositing copies

_ thereof.in the United States mail, certified or reg-

istered return receipts requested, addressed to each

of them at their foregoing last known address.

A. L. CROUCH, Po i

e

Al

~ APPENDIX A

-No. 33761-C

IN THE 17th DISTRICT COURT,

TARRANT COUNTY, TEXAS

WILLIAM E. SHIELDS, JR.,

} Guardian,

yg.

A. L. CROUCH,

Judge, of the Probate Court,

Tarrant County, Texas. ©

JUDGMENT .

This cause came on to be heard this March :19th,’

1964, before Louis T. Holland, who is District Judge

of the 97th District’ Court.in Montague County,

Texas, and is Presiding Judge of the Eighth Admin-

istrative Judicial District for the Second Supreme

Judicial District of Texas, sitting as Judge of

the 17th Judicial District, and the plaintiff appeared -

and announced ready for trial, and the defendant

filed a motion’ to disqualify Judge Murray, regular |

Judge of the 17th District Court, and a rule for costs

‘and a motion for appointment of a guardian ad litem

for the Shields children of whom plaintiff is regularly

appointed Guardian in the County Court of Tarrant

County, Texas, and a plea in abatement and a’ motion

to disqualify H. M. Lattimore and his father, H. S.

Lattimore, from prosecuting this case, and a motion

. for a severance of the three phases of the Order

sought, and a motion for a jury trial and a motion

A-2 -

- for continuance, and each and all of such mations

were argued by the defendant who represented him-

self in this cause, and. were duly considered and it .

. ‘appears that District Judge Mutray has requested the

undersigned, Judge Holland, as a presiding judge of

_ the Eighth Administrative Judicial District, .as pro-

‘vided by the Acts of the 56th Legislature, to’ either

conduct. this trial or assign some judge, other, than

the said Judge Murray, to conduct ‘this trial, and that

the defendant contends that Judge Murray is, dis-

qualified; citing various personal and illicit reasons

_» therefor, and the Court finds that there is adequate

security for costs and that. there is no diversity be-"s

. tween the plaintiff. Shields as Guardian -and said

- Shields, individually, and that Mary. Katherine Shields

is a co-owner with the Shields minors of certain real”

estate, and: that their joint records are kept under

the’ name, Shields Development Company, and that

no jury issue is shown, and it is ORDERED that

‘each of the motions of the defendant on file be and

the same are hereby overruled, and, : ee

: It further appearing that the defendant’ has, and

has had, the books designated as Shields Development

Company in which are matters necessary for Shields

to prepare his own income tax, return, and also’ to

prepare the income tax return for himself as Guar-

dian, for many months beginning long prior to 1964,

and declines to return them to the plaintiff, and that

‘in December, 1963, the plaintiff, as Guardian, filed

application to sell an undivided one-half interest in a_

tract of land of 30. 241 acres in the J. B. McAnair ©

Survey in 1 Grayson’ County; Texas, rainaes in the.

, —_

: cm.

_A-8

Deed Records of said county, Vol. T, Page 365, on

_ which hearing was had on the 13th of February, 1964,

and no Order has been.entered thereon, and the de-

_ fendant says he will make an Order when he gets good

_ and ready, and the handling of these estates of the

said Guardianship has been, insofar as the defendant:

is concerned, a succession of wrangling, the defendant

having refused to surrender .the court papers for

inspection, so ‘that prior litigation ensued between

the: parties and the entire handling of these estates

_by the defendant has been delayed and a reasonable

~» jssue has been presented as to whether the plaintiff

ean get justice in the court presided over by the de-

fendant, and that the regular County Court presided

over by Judge Simpson has potential jurisdiction of

guardianship estates in Tarrant County, and that the

law and the facts are for the plaintiff.

IT IS THEREFORE ORDERED that the defend-

ant deliver, forthwith, all books, ledgers, journals,

cancelled checks, check stubs, and bank statements of

each, the Shields Development Company and of the

Shields Guardianship on William. E. Shields, III, and —

Katherine Marie Shields, minors, to Arthur Young

& Company, certified “public accountants of Fort

’ Worth, Texas, and, —

_ IT IS FURTHER ORDERED that the defendant

make an Order within two wéeks from the entry of.

this Judgment, either granting or overruling the ap-

plication to sell, covering the 30, 241 acres above. de-

scribed, and, :

ITIS FURTHER ORDERED that within ten days

A-4

from the entry of this Order, the defendant announce

a date for a hearing on the motion of the plaintiff

to transfer further proceedings in the Shields Guard-

ianship to the County Court of Tarrant County,

- Texas, which is now presided over r by J udge Marvin

- Simpson, Jr.

The: costs are adjudged sgsinat | the defendant, to

which the defendant excepts and gives notice of appeal

to the Court of Civil Appeals of the wens Supreme

Judicial District of Texas.

ENTERED this 24th day of March, 1964.

/s/ Louis T. Holland

Judge of the 97th District Court,

and also Presiding Judge of the

Eighth Administrative Judicial

District of Texas, and sitting

_ as Judge of the 17th District

- Court of Texas.

A CERTIFIED COPY,

Attest: March 24, 1964.

. GEORGE JOHNSON

District Clerk,

Tarrant County, Texas ers

By SALLY B. MUSSER, |

Deputy |

[SEAL]

| A-5

APPENDIX B

| No. 16,461

FROM A DISTRICT COURT

OF

TARRANT COUN TY, TEXAS

. A. L. CROUCH,

Judge of the Probate Court

of Tarrant County, Texas

Appellant

vs.

- WILLIAM E. SHIELDS, JR.,

Guardian ~

Appellee

This. appeal was transferred to this court by order aa

of the Supreme Court of Texas.

William E. Shields, Jr., Guardian of the Estates

of William E. Shields, III, and Katherine Marie

Shields, Miriors, brought this action in the District

Court of \Tarrant County, Texas seeking a writ of

mandamus against A. L. Crouch, Judge of the Pro- ©

bate Court of Tarrant County, Texas. In his petition

the guardian alleged that in June 1968, at the request.

of the probate judge, he had delivered into the—pos-

Session of said official a set of books and records which

contain information relevant to the estate of the °

minors; that despite repeated demands the judge had

_. failed and refused to déliver back these. records, even

"for the limited purpose of bringing the books down to.

date and aiding in the preparation of tax returns for

| A-6

the year 1963; that it was necessary to have said.

books and records in order that said. guardian, and his’

‘ accountants, might prepare the federal income tax

returns on behalf of the minors; that no- justifiable

reason existed for the failure on the part of the pro- — .

bate judge to deliver the records either to the guar-

dian or to the accountants; that irreparable injury

would result to these estates unless the books and

records be made available by the probate judge. The

guardian also alleged that on December 16, 1963 he

had filed an application for the sale of certain real

estate’ belonging to the estates of the minors; that a

full and complete hearing was had on the application

before Judge Crouch on February 13,. 1964; that

Judge Crouch has had more than a reasonable time —

to consider the evidence and merits of the application |

but refuses to act upon said application; that the con-

_ tinued delay and refusal by the’ yjudge to act will

result in injury to the estates of the minors. and will

prevent the guardian from performing his. duties to |

aet for the best interests of the estates. The guardian

also alleged that on the 13th day of September, 1963

he filed an application in the Probate Court to trans-

fer the guardianship to the County Court, it being a

court of concurrent jurisdiction, but despite repeated

‘requests Judge Crouch has failed and refused to hear

the motion. ; .

" Following a hearing before hack court on ey 19,

1964 the district judge issued the writ of mandamus

directing Judge Crouch (1) to deliver forthwith the _

_ books: and records in controversy to Arthur Young

& Company, . Certified Public Accountants of Fort .

» A-T

Worth, Texas; (2) to make an order within two weeks

from the judgment, either granting or overruling the

- - application to sell the real estate; and (3) within ten

days from the judgment to announce a date for a ‘

hearing on the motion to transfer the cause to the

County Court. pe :

The trial judge made findings of fact, inter alia,

that the records of the estates previously delivered to

Judge Crouch by the guardian were necessary and

proper for the preparation of income tax returns but

that Judge Crouch had refused to deliver said records

to the guardian, or his accountants, and indicates that

he does not intend to deliver said records or afford

the guardian access thereto; that a full hearing has

been had on the application of the guardian to sell

real estate of the minors but that Judge Crouch has

taken no action on the application nor any other |

_ action in this estate ‘since June of 1963; that the

guardian filed a motion requesting Judge Crouch to

transfer the entire guardianship proceedings to the

County Court but that Judge Crouch refuses to give

the guardian a hearing on said motion. The trial

judge concluded, as a matter of law, that the guardian .

was entitled to a writ of mandamus; that Judge Crouch

has abused his discretion in refusing the guardian

access to the records “in question and in failing to

~ act upon the application for the sale of the land be-

longing to the minors, and also in ‘refusing to afford

the guardian a hearing on his motion to transfer >.

* the guardianship proceedings. The court also found

that no jury issue existed. =

‘Judge Crouch appeals, assigning seven points of -

A-8

error. Before directing our attention to the specific

,points raised by appellant we deem it advisable to

comment upon the indirect attack upon the jurisdic-

tion of the District Court of Tarrant County to issue

a writ of mandamus directed to the Probate, Court

of that county, said-attack being obliquely made in.

several of appellant’s points and also in his oral argu-

ment before this court. We are of the opinion that —

the District Court had complete jurisdiction to issue

the order upon which this appeal is based: The law is

‘well established in Texas that a district court has

jurisdiction in a mandamus proceeding against a

county judge or a probate judge but such power is

naturally limited to certain conditions, one of which .

~ being where there is a failure on the part of the pro-.

_ bate or county judge to perform a, ministerial duty.

_ Art. 5, Sec. 8, of the Constitution of Texas specifically

provides that the district court shalkhave general con-

trol in probate matters, over the county court estab-

lished in each county, as well as general control over

executors, administrafors, guardians and minors. Both

Articles 1907 and 19%, V.A.C.S., implement the con-

stitutional provisions. The following authorities leave

. no question concerning the jurisdiction of the District

Court to issue a writ of mandamus under such con-

ditions as was issued in this case: Thorne v. Moore, ~

101 Tex. 205, 105 S.W. 985; Journeay v. Shook, 105

Tex. 551, 152 S.W. 809; Southern Bag & Burlap Co.

v. Boyd, 120 Tex. 418, 38 S.W. 2d 565; Womack v.

Berry, 156 Tex. 44, 291 S.W. 2d 677; Lowe v. Wilcox,

119 Tex. 256, 28 S.W. 2d 515, 70 A-L.R. 1484; Crane —

v. Tunks; 160 Tex. 182, 328 S.W. 2d 434; Neville v.

A-9

Brewster, 163 Tex. 155, 352 S.W. 2d 449: Crouch a ‘a

Craik, 369 S.W. 2d 311; 37 Tex. Jur. ee p. 654,

et seq., and § 70, p. 714, et seq.

In the case of Capps v. Cowan, Com. App., 286 .

S.W. 161, the question of the right to issue a writ of

mandamus to require the return of books and records,

as in this case, was discussed and upheld by the court.

_ By his Point 1, appellant contends that the District

~ Court had no right to mandamus him to hold a hearing

on the motion. of the guardian to transfer the case to

another court because the statute. authorizing - such

“transfer between: courts of concurrent jurisdiction.

does not provide for a motion or a-hearing. The Pro-

bate Court of Tarrant County over which Judge.

Crouch presides ‘was. created by the Aets of the 55th

Legislature of 1957, Page 1204, Chapter 400, as

amended by the Acts of the 56th Legislature in 1959,

Page 739, Chapter 334, Section 1, all being codified as

Article 1970-345, V.A.C.S. This Act specifically gives

concurrent jurisdiction between the Probate Court so

‘created and’ the County Court of Tarrant, County,

already in existence. The Act provides, in part: “The

judge of either of said courts, in his discretion, may,

by an order entered upon the minutes, on or after

the first day of the initial term of said Probate

Court of Tarrant County, transfer from either of

. said courts to the other, any such matter or proceed-

ing then or thereafter pending therein * * * .” Appel-

lant points out that this statute does not exiiesely

provide for a motion to be filed by a party seeking _

such a transfer but that such transfer remains solely- _

within the discretion of the judge. The guardian’s _

A-19

“sworn pleadings to the effect that he had filed such a ~

motion for transfer and that Judge Crouch had

repeatedly refused to give him a hearing on said

motion was not denied by Judge Crouch in his answer.

Judge Crouch testified that he did not think he was

obligated to hear the motion. We cannot. agree with

appellant’s contention. The mere fact that the. statute

does not specifically provide for such a motion does not

carry with it the implication that a party is. without

power to file a motion to transfer. Otherwise, no

remedy would be available to any party who desired to

request. the court to exercise his discretion to trans-

fer a case from one’ court to another. Appellee

guardian makes it clear that he does not, by his ap-

plication for writ of mandamus, ask the District

Court to compel Judge Crouch to rule one way or

.. the other on his motion. He merely asks that the judge —

_ rule. The writ of mandamus directing the court to set _

-the. motion for hearing does not interfere with the

discretionary power of Judge Crouch. It does nothing

more than direct him to perform a ministerial act. It .

has been said that where a judge refuses to exercise

the discretion accorded him mandamus is a proper

remedy. 37 Tex.Jur. 2d, § 21; pp. 624, 625, and cases

therein cited..Appellant’s Point 1 is overruled.

By his Point 2, appellant-attacks that part of the ~

writ of mandamus directing him to rule upon the.

application to sell real estate, by contending that the

guardian did not file the application to sell in con-

formity with the law and therefore he is not required ”

. to rule upon:the application. In support of this point

‘appellant argues that the application filed by the

aye

A-11

guardian does not conform to Section 342 of the Pro-

bate Code of. Texas in that there is no exhibit “at-

. tached” showing the condition of the estate. He fur-

ther contends that the district judge carefully re-

frained from finding that the application was in con-

_ formity with the law. We disagree with appellant in

- this regard. The findings of the trial judge carried the . _

necessary implication that the application was filed in

due form. Section 342 of the Probate Code, relating to

- the contents of the application to sell real estate, pro-

vides that such application “shall be accompanied by

an exhibit?’ showing fully and in detail the condition

of the estate, etc. (Emphasis supplied.) -It does not

provide that such exhibit must be “attached” as con-

tended by appellant. The issue of lack of essential —

‘exhibits is not presented by the pleadings. Appellee

guardian alleged that-he had filed his application, and

attached a copy thereto, said application being under

oath. Appellant; in his original answer, also verified,

alleges that the guardian made application for the sale

of the property and that a full hearing had been had

in. the Probate Court on February 13, 1964. He also

alleged that at this hearing appellant had required the

guardian to. file a complete annual account’ of the

guardianship through the calendar year 1968 and that

i: such, account was signed and sworn to by the guardian.

Such being’ the condition of the sworn. pleadings of

both parties, we do 16 find the issue of exhibit to be

raised. Marr.v. Reynolds, Civ.App., 151 S.W. 2d 263. .

In addition to the foregoing, we are of the’ opinion

that should it be conceded that proper exhibits did ndt

accompany the application to sell the real estate, such

—

fact does not, as a atin of lew, justify the refusal of

_the Probate Court to act upon the motion. The man- -

damus -in. this‘ case is ‘not directed against Judge.

eCrouch in such a manner as to require him to rule one.

way or the other. It. merely demands thgt he rule. He |

_ may well sustayp the motion or he maf? overrule the

same. The alleged insufficiency of the application to .

sell is not pertinent to the ultimate grant of the writ |

- of mandamus in this case. This is further demon-

strated by Judge Crouch’s testimony wherein he pos-

_ itively says he will not act upon the application to.

sell the real estate until “it will servéthe best interest

of the estate or whenever the Supreme Court of Texas .:

tells me to.” Neither of the reasons assigned by the

appellant is legally sufficient to justify his continued —

refusal to-act at all — either to grant, or deny the

application.. Appellant’s second point is overruled. |

By his Point 3 appellant assails the mandamus inso-

far as it relates to directing him to return certain

records to the guardian_or the accountants, it being

contended that there was no demand and the guardian

should have resorted to a_ motion to inspect or to

‘apply for a writ of: sequestration for their return.

This position is not tenable. Insofar as a demand is

egnéerned the record affirmatively shows that. both in |

his pleadings and in his testimony Judge Crouch

admits that he has the records in his possession and

refuses to deliver them. There -is nowhere a denial

~ that a demand has been made for ‘their return. Such

'. fact is not in issue. Moreover, Judge Crouch’s testi-.

- mony that he refuses to deliver the records results in

a situation where a demand would be a futile thing.

ee

®

A-18

| Under such conditions the law does not | ‘require a” ae

demand to be made. McPhail .v. Scarborough, Civ.

App., 16 S.W. 2d 858. Neither is there any merit to—

the contention that the guardian should have resorted

_to a writ of sequestration or similar process in order

to obtain the records. Judge Crouch admits that the

y.

_ papers are in his custody. They are therefore in cus-- ~

todia legis and not subject to sequestration. Illinois

Cent. R. Co. v. Ryan, Civ. App., 214 S.W. 642. Appel-

~ lant’s third point is overruled.

, By his fourth and fifth points, closely: jateprelated. !

: and both-being general in nature, appellant contends: ©

that the appellee guardian cannot properly apply for

“a-writ of mandamus because he does oid have “clean.

]

hands” nor has he exhausted his {legal remedies.

Neither of these points has any merit. Asto the “clean .

hands” theory appellant says that appellee has not

complied with the law in performing his various duties

as guardian of the estates of the minors. Without i

ciding this question it is sufficient to say thatgf such.

are the facts then they would be the basis for an ac-

_ tion to remove’ the guardian. We have been cited no-

authority, nor are we able to find any, holding that

under such conditions the guardian is prevented from

requesting that the probate judge perform his duty

as a judge. “As to the argument concerning exhaustion

_of legal remedies, the action here does not fall-within

. the category of the ordinary equitable writ of man-—

damus. This action, in essence, is permitted by the |

constitution and statutes above quoted. Since the mat-

ter lies well within the jurisdiction of the District.

Court we _? no merit i in appellant’s contention. Ful-

A-14 |

ton v. Finch, g. Ct, 346 S.W. 2d 823. Meteoves, pak

lee guardian has. no legal remedy of appéal for-the

- simple reason. that the action on the part of the pro-

_' - bate judge in this case in flatly refusing to rule on the

- matters presented prevent any appeal. ~ - |

In his sixth point appellant argues that since there

is” no-evidence of-any ' demand before suit for any of

the relief sought, that: mandamus is not proper. We

have already discussed the question of demand and

requests i in our consideration of previous points. There

is no issue of lack of demand presented by either the

pleadings or the evidence. The sixth point is overruled.

By his seventh and last point appellant contends -

that he, was denied the right-of trial by jury. Appel-

lant did request a jury and paid the. jury fee. How-

ever, the trial judge found, as a matter of law, that - :

no issue of fact was presented in this record. We have

careffilly reviewed the verified pleadings.as well as

/ the statement: of facts in its entirety and agree with

the trial court’s finding that no issue of fact was pre-

sented and therefore appellant has not been prejudiced .

by a denial of a jury. The material facts are undis-

puted. Judge Crouch admits that he would not, under

- any circumstances, deliver up the records in question;.

that he would not afford the guardian a hearing on. -

his application to transfer the case; and that he would

not act on.the application to sell until “it will serve

| ‘the best interests of the ‘estate or whenever the

Supreme Court of Texas tells me to.” There- being. no

: dispute on these material issues, no issue of “fact

would have: been submitted to a jury, had one been —

granted. Appellant’s seventh point is overruled.

a

DELIVERED:

A-15

‘A careful review of this entire record reveals a.

. rather. unfortunate condition to exist in the Probate

Court of Tarrant County, Texas between J udge |

- Crouch and the executor and his attorneys in this par-

ticular. case. ‘The testimony reveal’ a bitter feeling °

between the parties involved and we do not believe. - .

that it would serve a usefiil purpose to burden this

opinion with a recitation of more of the record. It is

sufficient to say that we have carefully reviewed the

entire record and find that the findings of fact on the“

part of the. trial judge are supported by cahalive

_ evidence and that the conclusions of law are correct. .

4 Tex.Jur. 2d, § 839, p. 398, et seq. The judgmefit of *

the trial court is affirmed. of

AFFIRMED. ° |

| PER CURIAM

December. 4, 1964. — nee

THE STATE OF TEXAS. Ea

e : JUSTIN: °C. BURT, Clerk of the Court ‘of Civil.

Appeals for the Fifth Supreme Judicial District . of

Texas hereby ‘certify that ‘the foregoing Seven (7):

pages contain a true and correct copy of the Opinion |

of this Court delivered and filed December 4th, 1964.

in Cause No. 16,461, A. L. Crouch, Judge of the Pro- |

bate Court of Tarrant County, Texas, appellant: vs.

William E. Shields, Jr., Guardian, appellee, as the

Same now appears on file j in my office. -

GIVEN under by hand and seal of said Court, st

* . : eel EE os

£8

‘A-16

office in Dallas, this the 7th day of December, 1964.

- JUSTIN G. BURT es

ten ‘Clerk j

| | |

[SEAL]... - 4

: # }

‘

APPENDIX pe | Hise

“IN THE SUPREME COURT OF TEXAS

" Mareh 81, 1965

No. A-10,606 oat

ni cet Mais om Ph eA NS A ib He on

From Tarrant County, Fifth District

. A. L. Crouch, Judge of the Probate Court.of

Tarrant County - .

William E. Shields, Guardian | |

Application of petitioner for writ of error to the _ pe)

Court of Civil Appeals for the Fifth Supreme Judicial

District, haying been duly considered, and the Court

having determined that the application presents no

__ error requiring reversal of the judgment of the Court -

of Civil Appeals, it is ordered that said application be,

and hereby is, refused.

It is further ordered that citenik “ % Crouch, ere vee

Judge of the Probate Court. of Tarrant County, pay :

- costs: pene on this application.

sins

_ APPENDIX D

| ” May 5, 1965 .

« No. A-10,606 >. es

From Tarrant County, Fifth District

A L. Crouch, Judgé of the Probate Court of

Tarrant County .

VS.

‘William E. Shields, Guardian".

- Petitioner’ s motion for rehearing of application for .

- writ of error having been duly considered, it is-or-.

dered*that. said motion be; and hereby is, overruled.

I, GEO. H. TEMPLIN, Clerk of the Supreme Court

of Texas, do hereby certify that the above and fore-

going is a true and.correct copy of the orders of the

Supreme Court of Texas in the case numbered and’: :

styled as above, as the same appears of record: in the’ ¢

minutes of said: Court under the dates shown. ay

} WITNESS my hand and the seal of the Supreme

Court of Texas, at the City of Austin, this, the 28th -

——~day of June, 1965. —

GEO. H. TRMPLIN: Ceti

By Eugene Cervenka, Deputy

Bugeng & Cervenka

_ [SEAL]

oA 13

APPENDIX E

DENIAL OF JURY TRIAL, MOTION wa

| REHEARING |

27. The Court of Civil Appeals. erred in affirming

the judgment of the trial cdurt in the issuance of a.

e@ ~~ mandamus where disputed fact issues were present. .

a vheae because said denial of a jury trial is in violation of

due course of action under the Texas Constitution and:

due procéss of law under the 14th Amendment to the

United States Constitution. ,

Cie race Ne.

APPENDIX F*. }

INADEQUATE NOTICE, MOTION FOR

| ‘REHEARING |

tee8.. The Court of Civil Appeals erred in \ affirming

the judgment of the trial court issuing a writ of man-

damus when Appellant had duly filed, in statutory

form, a motion for continuance because it was not

shown that harm would have resulted to any party by

~@ reasonable delay, ‘and the trial court abused his dis- _

cretion in denying said motion out of hand and with- .

out a hearing and Appellant was not afforded reason-

‘able notice to prepare for said hearing, all in violation

of due course. of action under the Texas, Constitution

"and due process of law under the United States oS

_ Stitution. ee

——<—<———— ——

. a

——_—$————— ;

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4 4 Hy = ;

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2 ‘. . . . we .

A | ey oo Ghai Ft

3 . : =e e * .

‘ APPENDIX G

| _ TEXAS PROBATE CODE ae

§ 342. Couitents of Application for Sale of-Real. Estate

’ - . An application for the sale of real estate shall be in ©

_ writing, shall describe the real estate or interest in or

' part thereof sought to be sold, and shall be accom- '

panied by. an exhibit, verified by affidavit, showing

_ fully and in detail the condition of the estate, the

charges and claims that have been approved or estab-

lished by suit, or that have been rejected and may yet

be established, the amount of each such claim,. the

: property of the estate. remaining ‘on hand liable for

ee __ the payment of such claims, and any other facts tend-

ing to show the nécessity or advisability of such sale.

Acts 1955, 54th Leg;, p. 88, ch. 55, “

Si

| a ae ‘(APPENDIX H

ge ce STATUTE ON TRANSFER OF CASES,

Art. 1970-345, Tex. Rev. Civ. Stat.

| < See. 11..In case-of-the: absctice, disqualification or

| i ee “incpaalite of either the Judge of the Probate Court

| of Tarrant County, or the County Judge of Tarrant

ee or in the discretion of either of them for any

other reason, the County. Judge of « Tarrant County

may sit and act as Judge of the Probate Court of Tar- .

' - rant County, and the Judge of the Probate Court of

___Tarrant County may sit and act as Judge of the Coun-

ty Court of Tarrant County, with respect to: any —

matters referred to in Section 2 of this Act, and either

- of said judges may hear and determine, either in his

“\

\

, mas Fa A2

Coe Servis sencicliii or, * with the consent of the Judge there-

_, of, in the courtroom of the other of said courts, any

° matter or proceeding pending i in either of said courts, _

and may enter any orders in such matters or proceed-

_, ings as the judge of said other court might enter if ~

“. . ‘personally presiding therein. As amended. Acts 1959,

ee ace ne [48 P. 739, ch. 834, ai ee

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_ Compliance or. Jail -

-,. Is Urged for Crouch |

Attorney Hal Lattimore Fri-

@aypasked District Judge Louis

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plies with some orders in an es-

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|,“ < Judge Holland, subjtituting for.

Fort Worth Star-Telegram April 17, 1964

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