# Petition for Writ of Certiorari — Crouch v. Shields > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0876%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1965 - **Citation:** 382 U.S. 907 ## Text , ' ae __ ood {oe ne GU MIBRORY:, 3 | FILED ES GRY = -_s ; = COURT, oO. & Sut 30 1965 ee . | _+JoHh-F-ens, CLERK Pa 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 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 ) 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 . * 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 ——_—$————— ; * : nN 4 4 Hy = ; ; | : , ‘ y; ‘ 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 ; : ‘ vA ‘ reap) - : \ é = i, es ; | fs, | ° ee 3 : , < 4 : i eee aN ; ‘ ; : \ f - its mae st | Resist * | be é 2° % A-Z1 APPENDIX I : ; ee es ee a 5 eR 582 238 re z uth [hl i— . E ea whl : ase | i i 2 & iF hl OTT : oe S&S o FP; tte eee ae a ‘Oo = S Bs “s is iit) He: Bs el ad : se SC tele i and ea weneiaa 4b £5 aly ue ee Mas pile Sa: i 325. 5g88 3 : ee an if bi Lt EE ap i iu | | ce = He He i tnt ele Hat ao ae ee eg Mehl a " ye - Het F He a 3 ¢ _ ae ne “tlt it ial it Mi a | cake: Do i EEE ee °. | BERE i Le Li | Hee if ah geeat alti i oh - 5 | 58 84h i i Bubltal “a 60a i lh ff A s. A238 NDIXK —- __ APPE \ pu _ Compliance or. Jail - -,. Is Urged for Crouch | Attorney Hal Lattimore Fri- @aypasked District Judge Louis s \ T. Holland of Montague to hold plies with some orders in an es- tate case eh |,“ < Judge Holland, subjtituting for. Fort Worth Star-Telegram April 17, 1964 é Q ’ Ao apa na : Hj 1 ait sip ere a ) a ih ae af: ein vitnli ) ses sa gait a t96 ow & Pati ni | es MGS) ac Bile | ite gpg ie uy 13 / ts wg = aie 1 nen . 1a3 8 33 ui iy | i : s . igh” a 8 sIva | ane FESS Gi a fh essa u, Ht iE } a et --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385602_0876%3A1. Public record. Not legal advice.