Ex parte Charles V. and Victor J. LA ROCCA, 282 S.W.2d 700

HICKMAN, Chief Justice. By this original proceeding Charles V. and Victor J. La Rocca, hereinafter referred to as Charles and Victor, seek release from the restraint of a judgment of a District Court in Jefferson County adjudging them to be in contempt of that court. •On July 11th of this year we granted a temporary writ under authority of which relators were released on bail pending a hearing of the application on its merits.

The case was submitted on briefs and oral argument on July 20, and on July 27, just before adjournment of the court for its. summer vacation, it entered an order remanding the relators to the custody of the Sheriff of Jefferson County and providing that no motion for rehearing would be entertained. In view of the press of matters for disposition at that time it was determined that an opinion could not be prepared prior to adjournment, and the order accordingly recited that an opinion would be filed later. This is written in compliance with that order and will be filed as the opinion of the court.

Prior to the institution of the present litigation Charles was' engaged in the business of selling gasoline and lubricating oil at wholesale in Jefferson County. On January 30, 1952, he entered into a contract with Howard-Reed Oil Company, Inc., a business competitor, by the terms of which he sold to it all of his interest in the business, including certain equipment, together with the good will of the business. As

part consideration for the sale he agreed “not to engage in the character-of business in which I am now engaged in Jefferson County,. Texas, for a period of 5 years from the first day of February, 1952 either by establishing a new business or a department of an existing business or in any other manner whether directly or indirectly.” Thereafter, on August 28, 1952, Howard-Reed removed all of its products1 from the premises theretofore occupied by- Charles to a new location in the city of Beaumont, whereupon, for a valuable consideration, the bulk plant was returned to Charles and the lease contract cancelled.

Later, Charles entered into a contract with Ada Oil Company of Houston under the terms of which he began the wholesale distribution of petroleum products in Jefferson County under the same firm name he employed theretofore. Thereafter, on June 7, 1954, an order was made by the District Court in a suit of Howard-Reed against Charles which temporarily enjoined him from in any manner engaging in the business of distributing gasoline and lubricating oils at-wholesale within the" limits of Jefferson County. The order was formally entered and dated June 8, 1954.

Both Charles and his brother, Victor, were served with copies of the temporary injunction, although Victor was not a party to the suit. Charles perfected an appeal to the Court of Civil Appeals at Beaumont, which court,- on March 31, 1955, affirmed the judgment of the trial court. La Rocca v. Howard-Reed Oil Co., 277 S.W.2d.769. No application for writ of error was filed and the judgment became final at the expiration of the time allowed for filing same. Howard-Reed then sought to have the District Court adjudge both Charles and Victor to be in contempt of, that court.

Victpr, who was not a party to the injunction suit, applied to the Court of Civil Appeals .for leave to file a petition for writ of prohibition. His petition was granted and the writ of prohibition issued. On May 21, 1955, Howard-Reed was granted permission by the Court of Civil Appeals to dismiss its motion, seeking to have Charles and Victor, punished for contempt for violation,-of the temporary injunction.

On June, 15, thereafter, Howard-Reed filed its second, amended original petition in the District Court seeking to have both Charles and Victor adjudged in contempt for violating the temporary injunction by acts done after May 21, 1955.

Notice to show cause was duly served upon both Charles and Victor, and upon a trial of the motion for contempt the District Court, on July 8, entered an order holding both Charles and Victor in contempt of court for violation of the temporary injunction, fixing the punishment "of Charles at a fine of $100 and confinement in jail for two days and that of Victor at a fine of $50 and confinement in jail for twenty-four hours. That is the order under attack in this proceeding.

It contained this recital: “The, Court here and now, upon the testimony adduced upon the trial of this cause, from observing the conduct and demeanor of the witnesses, and from all of the facts offered in evidence finds that .the said defendants, and each of them,- with the purpose in mind, did conspire to thwart the on-der o.f ,this Court dated June 8, 1954, and to do- by indirection through Victor J. La Rocca the very things which this Court .-had forbidden the said Charles V.

La Rocca to do; and the Court here and now finds, from the credible testimony that the allegations of contempt as set forth in the affidavit filed by the plaintiff have been established beyond a reasonable doubt, and that the said defendants, and each of them, are guilty of contempt of this Court by willfully violating said temporary injunction and should be punished therefor.” It is not contended that the trial court did not have jurisdiction of the parties and the subject matter of the suit. Neither is the regularity of the procedural steps in the contempt proceedings questioned.

The sole question for decision is whether there was any evidence offered at the trial upon which the trial judge could base the conclusions above quoted. If not, relators have been denied due process of law and the contempt order was and is void. Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184; Ex parte Morris, 147 Tex. 140, 215 S.W.2d 598. This brings us to a consideration of the testimony on which the trial judge based his conclusion that the relators conspired to thwart the court’s order and to do indirectly through Victor what the court had enjoined Charles from doing.

That testimony may be briefly summarized as follows : The suit for temporary injunction was tried on June 7, 1954, and at the conclusion of the evidence the court granted the injunction. On the following day, June 8, the order granting the writ was formally entered. On the night of June 7 Charles first discussed the injunction with Victor. At that time Victor was employed as production manager of the Seven-Up Bottling Works in Beaumont at a salary of $85 a week, which position he had held for several years. He had had no experience in selling gasoline and oils at wholesale.

The next day, June 9, Charles went to Houston, where he conferred with officials of Ada Oil Company. On that occasion the jobber contract which he had with the company was cancelled and his account was settled. Upon returning from Houston that evening about 7:00 or 8 o’clock, Charles went to Victor’s home. Victor testified that he and Charles did not come to any specific agreement on the evening of June 9, and that he knew for the first time what the deal was when an attorney employed by Charles told him what it was when they met the next day for the first time at the bank.

The testimony of Charles concerning the time and place of making the agreement with Victor is confusing. We have been unable to harmonize his statements. At one place in his testimony he stated that Victor came to him and made him a proposition to rent his premises, buy his stock and certain personal property, and that he accepted the offer. The time when that occurred is not clear. At another place in his testimony he testified that on the evening of June 9, after his return from Houston, the terms of the agreement were agreed upon and were later reduced to writing.

At still another place he testified that the time he first knew that Victor was going to agree to his terms was on June 10 shortly before noon. Victor further testified that on the morning of June 10, about 10:30 o’clock, a man named Ben Day, a representative of Ada Oil Company, came to the plant where he was working and asked him if he was interested in taking over Charles’ business. He had never met Ben Day before and had no appointment with him and did not know that he was coming to town. At about 1:30 o’clock that afternoon a meeting was -held in the First National Bank of Beaumont.

Present at the meeting were Ben Day, Howard Gardner, Vice President of the bank, Victor, Charles and the attorney employed by him. Victor had never met Charles’ attorney before. He testified that he did not know what the deal was until he got to the bank and saw the papers prepared by the attorney, who told him what it was; that at that time he had no money and before he met the attorney at the bank he did not know how much money would be involved.

The purpose of the meeting at the bank seems to have been to procure a loan for Victor in order to enable him to finance the transaction and to sign the papers necessary to consummate the deal. At that meeting the bank made a loan of $8,000 to Victor. The note was made payable in seventy-six days and was signed, “Jefferson Oil Company by Victor J. La-Rocca.” At that time Victor had not established a credit line at the bank and had no money. He testified that he could not borrow $8,000 at the bank by himself without Charles’ signature.

Nothing on the face of the note indicated that Charles was bound, but he was in fact bound because of his signing a written instrument guaranteeing the payment of the note. On the faith of that guarantee the loan was made. Gardner, the Vice President of the bank, testified that the customary procedure for ■a person endorsing a note was to have him place his signature on the back of the note, and that requiring a person to guarantee a note by a separate instrument was an unusual procedure by his bank.

Victor further testified that he did not know how much money would be involved in the deal when he went to the bank to meet Charles’ attorney, who had brought along the prepared papers for him to sign. He did not know how much merchandise Charles had. He had no inventory of that merchandise or money to pay for it. He testified that •he and Charles took the inventory after the bill of sale was delivered. He thought it was on June 11. However, Charles testified that he had never been on the property that was leased after the injunction was issued on June 8.

The deal was financed in the following manner: Victor paid Charles $3,000 cash out of the $8,000 loan and gave his unsecured promissory note to Charles for the balance due, payable in thirty-four monthly installments of $100 each and one installment of $98.50. The last payment was due on February 10, 1957, nine days after the expiration date of the injunction. The note was to bear no interest until after maturity. Charles leased the plant to Victor together with personal property used in connection with the business. Rent was payable in monthly installments of $200.

The lease was personal to Victor and subletting was prohibited. The term of the lease was two years, seven months, and sixteen days, expiring on the expiration date of the injunction. In cases too numerous to be cited in this opinion this court has declared the rule to be that a proceeding of this nature constitutes a collateral attack upon the judgment of the trial court, and in order for the contempt judgment to be subject to such an attack it must be absolutely void. We have no authority to evaluate facts.

As we stated in Ex parte Fisher, 146 Tex. 328, 206 S.W.2d 1000, 1003, “We may consider the facts only for the purpose of determining whether they constituted acts sufficient to confer jurisdiction upon the court to make the particular order.” And, as held in Ex parte Tyler, 152 Tex. 602, 261 S.W.2d 833, the fact that a judgment may be erroneous does not render it void. If it should be granted that the trial court drew an incorrect conclusion from this testimony, that fact would not make the judgment void. It can be declared void by this court if, and only if, the testimony constituted no evidence at all.

In our opinion the least that can be said concerning the testimony above pointed out is that it constituted some evidence of the guilt of relators. We need go no further than that. During the oral submission of this case the point was raised that the circumstances are equally consistent with the nonexistence of respondents’ guilt as with its existence, and therefore wanting in probative force. The rule sought to be invoked has no application here.

Trial courts, courts of civil appeals, and the Court of Criminal Appeals have the power to evaluate evidence, but this is a court of law and does not possess that power. As pointed out in the beginning of this opinion, an order was entered July 27 remanding relators to the Sheriff of Jefferson County, and this opinion is filed to disclose grounds on which that order was based.