Jones v. McMahan

Citations

• 30 Tex. 719

Syllabus

<p>The constitution of 1866, article IV, section 6, provides, that the district courts and the judges thereof shall have power to issue writs of injunction, certiorari, and all other writs necessary to enforce their own jurisdiction. (Paschal’s Dig., p. 935, sec. 6 ) The power resides in the judges as well as the court.</p> <p>The 4th section of the act of 11th May, 1846, to organize the district courts, &c., reads as follows: “ The judges of the district courts, and each of them, either in vacation or term time, shall have authority to grant, on petition to them therefor, writs of habeas corpus, mandamus, injunction, sequestration, error, and supersedeas, and all othér remedial writs known to the law, returnable according to law: Provided, That no mandamus shall be granted on an ex parte hearing, and any peremptory mandamus granted without notice shall be deemed void: And further provided, That all writs of mandamus, sued out against the heads of any of the departments or bureaus of government, shall be returnable before the district court of the county in which the seat of the government may be.” (Paschal’s Dig., Art. 1407, Note 528.) This section, like the constitution, gives the power to the judge as well as to the court.</p> <p>Whatever ordinary or extraordinary writ can be issued by a common-law judge or chancellor in those states where the jurisdiction of the officers is separate and distinct, in this state can be issued by the judge.</p> <p>There is no limitation as to the court to which the judge may order the writ returned, except as to the writs against the heads of departments, which are returnable at the seat of government.</p> <p>The stay law of 1866, which allowed the defendants in executions to pay judgments by installments, (see the law in the statement,) impairs the obligation of contracts, and is void. (Paschal’s Dig., Notes 56, 61, 147, 168; Paschal’s Annot. Const., Notes 152 to 157, pp. 153 to 158.)</p> <p>When Texas was annexed to the United St