text:
    STEWART v. NEWTON INDEPENDENT SCHOOL DIST. et al.
    No. 3559.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 23, 1939.

      Synnott & Smith, of Jasper, for appellant.
    E. A. Lindsey, of Newton, and Richardson & Lanier, of Jasper, for appellees.
   COMBS, Justice.

This suit was brought by appellant, Jno. R. Stewart, as the holder of certain school vouchers, aggregating $750.50, which he alleged the First National Bank of Newton,’ Texas, depository of the school district, had refused to pay. He named as defendants the Newton Independent School District, its Board of Trustees, the First National Bank of Newton, depository of the district, and J. Roy Lawson, active vice president of the bank. The trial court sustained a general -demurrer to the plaintiff’s petition and plaintiff refusing to amend the suit was dismissed, and this appeal is from that order. This being an appeal from an order sustaining a general demurrer, the only question presented for review is whether or not the plaintiff’s petition stated a cause of action.

Briefly summarized, the plaintiff alleged that the Newton Independent School District, acting through its Board of Trustees, entered into a contract with Mr. J. J. Collins, of Lufkin, and Mr. W. E. Gray, of Newton, whereby the said Collins and Gray were employed as attorneys to represent said district in a law suit then pending which affected the interest of the school district, which suit sought among other things to abrogate a contract which the trustees had entered into employing a superintendent, and it was alleged that the suit also sought to close the schools. It was alleged that said attorneys performed the duties for which they were employed and that the School Board duly issued and delivered to said attorneys the vouchers here in question in payment of their said services and expenses, in accordance with the contract; that said vouchers were acquired by the plaintiff Stewart in due course of business; that he presented said vouchers to the defendant bank for payment, but that said bank refused payment of the vouchers, at the instance of a minority of three 'members of said Board._ It was alleged that the school district had, at the time said vouchers were presented for payment and has at the present time on deposit to its credit in said depository bank, $2,000 of funds derived from local taxation, out of which said warrants could have been, and can now be lawfully paid, but that the depository bank refuses to-pay said vouchers. Plaintiff also sought an injunction restraining the paying out of said funds pending the determination of this litigation on allegations that the funds would be dissipated and spent so that he could not force payment of his judgment. A temporary injunction was granted in vacation as prayed for and on the present hearing the- trial court continued the injunction in force pending this appeal, modifying the order however so as to enjoin reducing the funds on hand by expenditures to less than $1,000. The allegations are full and complete in alleging the legal existence of the school district, the lawful making of the contract with the attorneys and the due execution and delivery of the vouchers, payment of which is here sought. The prayer was for judgment against the defendant school district and the defendant bank and certain named individuals for his debt, principal and interest, and that the trustees issue such other vouchers and perform such other duties as may be necessary to have the judgment and vouchers paid, and that the bank be required to make payment. -

Opinion.

It can not be questioned, we think, that the contract between the school board and the attorneys was, on the face of the allegations of plaintiff’s petition, a legal contract. School district trustees have the general power to employ an attorney to represent them in legal proceedings respecting school affairs and to pay such attorney reasonable compensation for his services out of the special maintenance funds of the district. Arrington v. Jones, Tex.Civ.App., 191 S.W. 361.

It appears from the briefs of the parties that the trial court probably sustained the general demurrer on the theory that plaintiff’s petition was fatally defective in not alleging that he had exhausted his remedy of appeal) to the school authorities, that is to say, the county superintendent, county board of education, state superintendent and state board of education. On the facts alleged by the plaintiff in his petition, and this appeal must be tested solely by the plaintiff’s petition, there was no occasion for the plaintiff to appeal to the school authorities. On the allegations of his petition, the Board of Trustees of the Newton Independent School District had done everything he desired them to do. They had duly and legally issued the vouchers and it remained only for the depository bank to pay them out of school district funds, which it held and which could be lawfully devoted to such payment. Under these allegations there was obviously no occasion for plaintiff to appeal to the school authorities. He had no complaint to make of any administrative action on the part of the Newton School Board. His suit was merely to compel payment of the vouchers.

The answer of the defendants raised a number of defensive matters, such for instance as allegations to the general effect that the suit in which the attorneys were employed was in fact in the nature of a quo warranto proceeding for the removal of certain trustees on account of •alleged misconduct in office; that the individuals concerned in fact paid the attorneys fees in question; that the issuance of the vouchers was simply an attempt to reimburse said individuals for said expenditures; that the School District in fact had no interest in the suit and the vouchers were not lawfully issued. All such allegations are defensive in nature and require the introduction of proof to support them. They can not be considered in support of the judgment of the trial court sustaining the general demurrer. That order must be tested alone by the allegations of the plaintiff’s petition.

The judgment of the trial court sustaining the general demurrer is reversed and the cause remanded. That part of the trial court’s judgment which restrains expenditure of the funds so as to reduce the funds on hand derived from local taxation to less than $1,000 will be continued in force.


source: Caselaw Access Project

author: O’QUINN, Justice.

license: Public Domain

text:
    SALVAGGIO et ux. v. ZETO et al.
    No. 3560.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 23, 1939.

      David L. Broadus, of Beaumont, for appellants.
    E. L. Reid and A. J. Schnitzel, both of Orange, for appellees.
   O’QUINN, Justice.

We gather from the record that in 1920 Frank Zeto, Sr., and Rosa Lee Zeto, his wife, resided in Orange County, Texas, and had accumulated considerable real estate upon which there were some seven houses, some for business purposes and some for residences. They had six. children, Charles, Mike, Josephene Zeto Blan-da, Jennie Zeto Russia, Frances Zeto Sai-vaggio and Nick. All were of age. In that year, 1920, Mrs. Rosa Lee Zeto died intestate. The property was all community property. No administration was had upon her half of the estate, and it passed to her children above named. Frank Zeto, Sr., continued in possession and management of the property. On June 26, 1930, Frank Zeto, Sr., joined by all of his said children, borrowed $3,500 from V. T. Effenberger of Port Arthur, Texas, for which they executed their joint and several note payable to the order of said Effenberger in monthly installments of $70 a month, and at the same time executed a deed of trust covering a portion of the real estate involved in this suit and being 134 feet off of the south end of lots 4, 5 and 6 in block 92 of the Amended Sheldon Survey of the City of Orange, Texas, the same land conveyed to said Frank Zeto, Sr., by A. B. Calhoun by deed duly recorded February 24, 1922, to secure the payment of said note. The note bore interest at the rate of 8% per annum. Frank Zeto died on October 5, 1935, intestate, in Orange County. At the time of his death there was an unpaid balance of approximately two thousand dollars on the note. Frank Zeto, Sr., at the time of his death also owed another debt of $500 to his son-in-law, Joseph Salvaggio. The property vested in the six children of Frank Zeto, Sr., of course charged with the debts of the estafe, however the $500 owed to Joseph Salvaggio was the personal debt of Frank Zeto, Sr., to Salvaggio. Immediately after the death of Frank Zeto, Sr., his heirs held a family meeting for the purpose of determining in what manner the estate should be handled. At this meeting all of the six children were present and it was agreed, that in order to avoid the expense of an administration on the estate, Charles Zeto, the oldest son should take charge of the estate and manage same; that he should take charge of the property, pay the debts, collect the rents and out of the revenues pay the installments as they became due on the Effenberger note. Charles Zeto accordingly took charge of the property and managed same up to the time of the filing of this suit July 16, 1938. The suit was filed by Frances Zeto Salvaggio, joined by her husband, Joseph Salvaggio, against the other heirs, Charles, Nick, Mike, and Josephene Zeto Blanda and her husband, John Blanda, and Jennie Zeto Russia and her husband, Joe Russia. They prayed for an accounting by Charles Zeto as to his management of the estate, and that a deed of date May 25, 1937, conveying the interest of the heirs, other than Frank and Nick Zeto, in the property covered by the deed of trust, to Charles and Nick Zeto, be declared a mortgage.

The defendants answered fully, and the defendant Frank Zeto filed an accounting, and prayed for all such relief as he may have shown himself entitled.

The case was tried to the court without a jury and judgment rendered denying appellants any recovery against Frank Zeto and Nick Zeto, and finding and adjudging the deed in question was executed as a bona fide conveyance of the property and was not executed as a mortgage. The judgment on the accounting awarded Frank Zeto $249.17 as the amount found to be due him for moneys expended in preserving the property over and above the receipts from same. The judgment found that the remaining property (that not included in the deed to Frank Zeto) was of such nature that it could not be partitioned in kind among the heirs and ordered that it be sold and the proceeds distributed one-sixth to each of the heirs. The case is before us on appeal.

The court filed no findings of fact, and none was requested. There is a full statement of the facts adduced on the trial. We have examined same carefully and find that the judgment has ample support in the record. The judgment should be affirmed and it is so ordered.

Affirmed,


author: BROWN, Justice.

text:
    THANNISCH CHEVROLET CO., Inc., v. KLINE et al.
    No. 13981.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 10, 1939.
    Rehearing Denied Dec. 8, 1939.
    Cantey, Hanger, McMahon, McKnight & Johnson and J. A. Gooch, all of Fort Worth, for appellant.
    McLean & Woodward, Warren C. Logan Jr., and Mack & Mack, all of Fort Worth, for appellees.
   BROWN, Justice.

Appellee, E. F. Kline, the father of the minor, Eugene Kline, filed suit for damages accruing to him, as father of Eugene Kline, and those accruing to his said son, as against Thannisch Chevrolet Company, Inc., and one W. R. Loflin, an employee of said private corporation defendant.

The cause of action is bottomed on the theory that Loflin, who drove an automobile into young Kline, was using such auto, then owned by said corporation defendant, in the scope of his employment by said corporation, and in the furtherance of its business.

Defendant, Thannisch ' Chevrolet Company, Inc., answered by general demurrer and general denial. Defendant Loflin made no answer, or appearance. '

The cause was tried to a jury and at the close of the introduction of evidence, the said corporation defendant requested the court to give the jury a peremptory instruction in its behalf. The motion was denied.

The cause was submitted to the jury on 19 special issues, on which the jury made findings, in substance, as follows: (1) the direction in which Loflin was driving the auto, and its position on the street, (2) such driving was negligence, and (3) a proximate cause of plaintiff’s injuries, (4) that Loflin suddenly drove the auto into the minor plaintiff, (5) so doing was negligence, and (6) a proximate cause of the injuries, (7) that Loflin failed to have the car’s headlights burning, (8) such was negligence, and (9) a proximate cause of the injuries, (10) that the auto operated by Loflin was owned by defendant corporation, (11) that Loflin took the said auto at the time with the permission of McNutt, the manager of the corporation, (12) that at the time of the collision Loflin, the driver of the auto, was in the performance of a mission for the defendant company, (13) that young Kline sustained personal injuries, (14) awarding him damages in the sum of $5,500, (15) that the father sustained damages by reason of the injuries to his minor son, and (16) awarding him the sum of $2,000, (17) that the failure of the minor plaintiff to have his bicycle lighted was not a proximate cause of the collision, (18) that Loflin was not driving the company’s auto, on the occasion in question, while on a personal mission of his own, and (19) that Loflin did not take the company’s auto to go home for supper.

The said company moved for a judgment notwithstanding the verdict, and its motion was denied.

On the verdict, the trial court gave judgment for the complaining parties jointly and severally against both said defendants, and motion for a new trial having been timely made by said corporation, defendant, and overruled, it has brought the judgment before us for review.

On the evening of the accident, it was shown that somewhere around 6 P. M. Loflin took one of the company’s used cars and drove home in it, ate his. supper and was returning in the car when he ran into the minor plaintiff. The burden of proof was assuredly upon the plaintiffs to show that Loflin was in the performance of his duties as an employee of the corporation and acting within the scope of his employment, or that he was acting in the furtherance of his master’s business, when the accident occurred, in such a manner as that his conduct would be binding upon the master, before the plaintiffs may recover damages against the master.

It is undisputed that Loflin took the car for the purpose of going home to eat his supper. There is not a scintilla of evidence tending to show that it was taken for any other purpose. Loflin so testified and no one attempted to contradict him. McNutt, who was general manager of the said corporation, at the time of the accident, and who was no longer connected with such defendant, testified that Loflin took the car without McNutt’s knowledge or consent. This testimony is not contradicted by any witness, but is corroborated by Loflin.

The only evidence, on this issue, adduced by the plaintiffs was to the effect that Mc-Nutt was somewhere around the company’s place of business when Loflin took the car, and that when Loflin took it the witness did not hear anyone enter a protest. As we view the situation here no one connected with the corporation had the authority to permit Loflin to take the car, or to protest the taking of same by Loflin, but McNutt, the general manager. None of the other employees had any more general authority, under this record, than did Loflin.

We find no testimony, or evidence, in this record tending to establish the fact that the general manager, McNutt, gave Loflin permission to use the car on the occasion in question, and the jury’s finding that such permission was given is wholly without support in the evidence.

The undisputed testimony shows that Loflin took the car for the purpose of going home to eat his supper, and there is no evidence even remotely tending to show that the car was taken for any other purpose, and the jury’s finding that Loflin did not take the car for the purpose of going home to eat his supper is wholly without support in the evidence.

The purpose for which Loflin took the car being undisputed, and the fact that he took it without the knowledge or consent of the general manager being likewise undisputed, we come to the finding of the jury to the effect that Loflin, at the time in question, was not driving the car on a personal mission (of his own).

The plaintiffs, for the purpose of raising an issue whereby the rule of respondeat superior may be invoked, attempted to show, by circumstances, that Loflin took the car to hurry home and eat his supper and hurry back to the company’s place of business for the purpose of making up, or completing, the company’s payroll. To do this a witness testified that the payroll was made up on Friday nights, for use Saturdays, and that the accident occurred on Friday night, and that a part of Loflin’s duties was to make up the payroll.

We wish to make our position clear, in this case, and we here state that, in order to raise an issue, on which this master could be held here, it would have been necessary to introduce evidence to prove that the general manager, who was Loflin’s superior, gave Loflin the right to use the car, on the occasion in question, for the express purpose of saving time, in going away from the company’s place of business to get his supper, and in returning to his duties at the place of business.

Or it must be made to appear from the evidence that it was the custom and practice of the company to give Loflin, or its employees generally, the right to use the company’s cars for such purposes.

No such evidence appears in this record; but we do find where plaintiffs’ witness, Burgess, was asked the following question, and gave the answer shown: “Q. Now I will ask you to state what was the custom of Loflin with reference to using company used cars? A. Well, he would go home to eat, and occasionally he would drive down.”

In the first place, we do not believe such testimony is sufficient to raise an issue where the establishment of a special custom is required.

The general manager and Loflin denied that any such custom prevailed, and, in such circumstances, the evidence of the witness Burgess, under the rule in Texas, was insufficient to raise the issue.

The testimony of Loflin is to- the effect that he took the car without obtaining permission, and that when he had done so-prior to the time of the accident, it was done without the knowledge or consent of the manager; and the manager’s testimony corroborates Loflin’s and denies the existence of any such custom as is relied upon.

42 Texas Juri., para. 29, pages 864, 865, and cases cited.

No such custom was pleaded, and it is fundamental that a special custom, relied upon, must be pleaded.

But, even if the evidence were uncontradicted that Loflin took the car, with the consent of the manager, on the occasion in question, we do not believe that the fact that Loflin drove it home to get his supper and was returning in order to perform some task for his employer, could make the employer responsible for the negligent acts of Loflin, while either going to his home or returning to his place of employment.

We think this conclusion is absolutely sound, in the absence of proof that the employer directed Loflin to go home in the car and to return for the purpose of performing some duty for the master. Under such circumstances, we think that the question would be “close” and the right of recovery doubtful.

We cite, in support of our conclusions: Langford v. El Paso Baking Co., Tex.Civ.App., 1 S.W.2d 476, writ dismissed; Van Cleave et al. v. Walker et al., Tex.Civ.App., 210 S.W. 767, 768.

In the last-cited case the court said:

“It is argued by appellee, and this is probably the theory on which the jury proceeded in reaching the verdict, that even if the defendant Hirsch did take the automobile out for his own purposes, yet it was his duty to take it back and put it in the salesroom after such use and his acts in so doing would be in the feervice of his employers.
“This is a too narrow view of the act. The return of the automobile was an incident to its use, and if the use was for the benefit of the employe, and not in the service of the master, the entire transaction is to be regarded as for his own benefit.” Bresnan v. Republic Supply Co., Tex.Civ.App., 63 S.W.2d 1105, 1108, writ refused.

In the case cited next above, the following language is used: “Just a little while before the accident in question, Ellis had left his home where he had gone for lunch, to return to the store. Was he then in the course of his employment on the way to the store? He was just as much so as when at the Courtesy Filling Station he got into his car to go to the store. In neither case we think was he in the course of his employment with the defendant.”

We are of opinion that there are other errors which would require a reversal, but believing that the judgment of the trial court should be reversed and judgment here rendered for Thannisch Chevrolet Company, Inc., we pretermit discussing such other matters.

The judgment rendered by the trial court against Thannisch Chevrolet Company, Inc., is by us reversed, and judgment here rendered that appellees take nothing as against such defendant. The judgment in all other respects is left undisturbed.


author: SLATTON, Justice.

text:
    HILLMAN et al. v. GRAVES et al.
    No. 10613.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 29, 1939.
    Edward L. Dunlap, of Victoria, for appellants.
    Crain, Vandenberge & Stofer and Line-baugh & Guittard, all of Victoria, for ap-pellees.
   SLATTON, Justice.

Mrs. Ella Hillman and husband, Charles Hillman, conveyed two hundred acres of land in trust to secure the payment of $4,-000. Thereafter the Hillmans conveyed the land by deed to the holders of said deed of trust notes; the conveyance contained recital of the transactions and the following:

“Now, Therefore, we the said Mrs. Ella Hillman and husband, Charles Hillman, of Victoria County, Texas, in consideration of the premises and the discharge, cancellation and delivery to us of said promissory notes, above described, which cancellation and delivery is hereby acknowledged ;
“Have Granted, Bargained, Sold and Conveyed, and by these presents do Grant, Bargain, Sell and Convey;-unto the said Mrs. Kate Graves, a widow, of Victoria County, Texas, and A. G. Schroeder and Oscar A. Rasmussen, as Independent Executors of the Last Will ¿rid Testament of Andrew Rasmussen, Deceased, which Will was probated by the County Court of Calhoun County, Texas, and Mrs. Rose Lambert, a widow, of Refugio County, Texas, in the proportions set out hereinafter, all of the above mentioned real property, which is here described as follows:”

The Hillmans sought in this suit: (a) to cancel and rescind the deed, (b) to establish a trust in the land, (c) damages for fraud in procuring the deed. All theories ■of recovery were predicated upon fraudulent representations alleged to have been made by the agent of the holders of the •deed of trust notes at and before the execution and delivery of the above-mentioned deed. The Hillmans alleged that during July, 1937, a reconveyance of the land was demanded and refused and an offer to pay the amount of the deed of trust indebtedness.

The defendants in the lower court answered the suit of Hillman and wife by general denial and specially pleaded the statute of frauds.

On the trial the Hillmans offered testimony to the effect that the land was deeded to Mrs. Hillman by her father and mother; •that she and her husband were notified before Mar. 11, 1936, by attorneys, to either pay the notes or deed the land to the holders of the notes; that she and her hus'band went to see two of the note holders .and were advised that Mr. Schroeder was their agent, and that whatever he did would 'be agreeable to them; that they went to Mr. Schroeder and he told them to deed the land over just to satisfy the note holders and that they could redeem the land .at any time within two years; that the Hillmans relied on Schroeder’s statements and did not know the same were false and untrue, and that they would not have deeded said land if it had not been for said •statements; that the Hillmans were able to get the money with which to pay the note holders but such offer had been refused.

The above testimony was excluded by the court at the close of the evidence offered by the Hillmans, and the jury was •directed by the court to render a verdict against the Hillmans and in favor of the defendants below. Hence this appeal hinges on the construction to be placed ■upon the deed above described.

The deed executed by the Hillmans •and delivered to the appellees recited a ■ contractual consideration; therefore parol -evidence was inadmissible1 to vary or contradict such recitals. Kahn v. Kahn, 94 Tex. 114, 58 S.W. 825; Mann v. Wright, Tex.Civ.App., 269 S.W. 222.

The parties to said deed are estopped from denying the contractual recital contained in it. The deed cannot be construed to be a mortgage because, according to its recitals, the vendees have no right of action against the vendors for the consideration supporting .the deed. Calhoun v. Lumpkin, 60 Tex. 185.

The appellants cannot recover upon the alleged fraudulent representation that the appellees would reconvey the land within two years upon the payment of the then outstanding deed of trust notes, for the reason that such a promise is contrary to the written instrument subsequently entered into between the parties. Lane v. Urbahn, Tex.Civ.App., 246 S.W. 1070; Id., Tex.Civ.App., 265 S.W. 1063; Id., Tex.Civ.App., 289 S.W. 173, writ refused; Distributors’ Investment Co. v. Patton, 130 Tex. 449, 110 S.W.2d 47.

These conclusions are also applicable to the trust theory. In 17 Tex.Jur., § 375, p. 830, it is said: “ * * * parol evidence is inadmissible to establish a trust contrary to the plain intention of the grantor expressed in a deed.” Kahn v. Kahn, 94 Tex. 114, 58 S.W. 825.

The trial court correctly directed a verdict against the appellants upon their alleged cause of action predicated on the oral promises charged to have been made without any intent to perform the same at the time they were uttered, because they offered no evidence of the fraudulent intent at the time same were uttered. Nonperformance of the promise to reconvey was the only proof with reference to the fraudulent intent adduced by appellants. This is not sufficient.

In the case of Cassel v. West, Tex.Civ.App., 98 S.W.2d 437, 439, writ refused, Mr. Justice Martin, speaking for the court, said: “It will be noted that appellant’s alleged fraud had its basis in promises to be performed in the future. There is a marked difference between fraud arising out of such promises and that based upon representations as to present or pre-exist-ing facts. Respecting the latter, scienter or intent to deceive are immaterial elements.” (Citing authorities.)

The rule as to the former is correctly stated, we think, as follows:

“Ordinarily a promise to perform some act in the future, although made by one party as a representation to induce the other to enter into the contract, will not amount to fraud in legal acceptation, though subsequently the promise is, without any excuse, entirely broken and non-fulfilled. This is a plain and well-established proposition, about which there can be no controversy; otherwise every breach of a contract would amount to fraud.

“In order for a promise to constitute fraud it is necessary that it should have been made with the intent at the time that it would not be performed, and with the intention, design and purpose of deceiving.” 20 Tex.Jur. pp. 32 and 33, and authorities cited.

Accordingly the judgment is affirmed.


author: COMBS, Justice.

text:
    RENFRO v. SPERRY et al.
    No. 3629.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 29, 1939.
    Rehearing Denied Dec. 13, 1939.
    J. R. Beck, of Beaumont, for appellant.
    Morris & Bennett, of Beaumont, for ap-pellees.
   COMBS, Justice.

Appellant, W. R. Renfro, as plaintiff brought this suit for permanent injunction against Maybelle E. Sperry and her agent, E. W. Gross, to perpetually enjoin them from interfering with his use of a certain roadway across a tract of land owned by Mrs. Sperry. He also prayed for a temporary injunction pending a final trial of the case and, upon a hearing of the application, the trial judge denied the temporary writ. This appeal is from that order.

Appellant Renfro owns and occupies a 3Yz acre tract of land, which tract was originally part of a larger tract formerly owned by the Gold Hill Gardens, a corporation which was engaged in the nursery business. Appellee Mrs. Sperry now owns the part of the tract formerly owned by Gold Hill Gardens, upon which the road in question is situated. The Sperry tract lies west of the Renfro tract and between it and the Voth-Beaumont paved highway. The roadway was opened up about 1926 and was used by Gold Hill Gardens, by plaintiff and his. predecessors in title and by the public generally from that time until recently when it was closed by appellee. It was appellant’s theory that he has a right to the use of the road on three grounds: (1) That the road was dedicated to public use by the Gold Hill Gardens; (2) that since the road was open and being used by the public at the time his predecessors in title acquired the 3½ acre tract from the then owner of the entire tract, he and they acquired an implied easement in the roadway for the benefit of his tract; and (3) that by more than ten years of continuous, adverse use of the road by the general public the road has become public by proscription. Appellees’ theory on the other hand! was that the use of the roadway by appellant and his predecessors in title and by-the public has at all times been permissive and not adverse; that the roadway was never dedicated to public use but was opened and used by Gold Hill Gardens for the convenience of its customers in order that they might drive their automobiles and vehicles into and through the nursery grounds to view the shrubbery and flowers which it grew for sale to the public, and for use of its employees.

' Opinion.

This being an appeal from an order of the trial court denying a temporary injunction, the sole question before us is whether on the record as a whole the trial court abused his discretion in refusing the temporary writ. We cannot consider any matters which do not relate to the propriety of the order appealed from. 3 Tex.Jur., Appeal and Error, § 723, page 1019, and authorities cited. Such being the case, we shall not summarize the evidence or discuss any issues going to the merits of the suit further than necessary to a review of the action of the trial court in entering the order appealed from.

On the record before us, appellant did not conclusively establish either of the three theories which he relied upon. At most he but raised the issues, leaving it to the sound discretion of the trial court to decide them in so far as necessary in determining whether or not the temporary writ should issue as prayed for. The trial court having refused the writ pending final hearing, we would not be warranted in holding such action an abuse of. discretion.

Judgment affirmed.


author: GRAVES, Justice.

text:
    MOORE v. VANDERHIDER.
    No. 10908.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 29, 1939.
    J. Dixie Smith, of Houston, for appellant.
    No Brief filed herein for appellee.
   GRAVES, Justice.

This appeal is from a judgment of the court below, sitting without a jury, wherein, after overruling the appellant’s general demurrer to the appellee’s petition, to which the former excepted, it went further and heard the cause on its merits, pursuant to the pleadings, evidence, and arguments of counsel, with both sides participating, entering in epitome this final decree: “It is, therefore, ordered, adjudged, and decreed by the court that the plaintiff, G. I. Vander-hider, do have and he is hereby awarded judgment against the defendant, Jno. T. Moore, quieting the plaintiff’s title and removing therefrom the cloud cast upon the same, by a certain abstract of judgment in the sum of $250.00 principal, together with interest and costs of court set out therein, as recorded in Vol. H, Page 230, of the Judgment-lien records of Wharton County, Texas, and described and referred to in the plaintiff’s petition filed'herein, of and concerning that tract of land situated in Wharton County, Texas, being Lot No. Ten (10) in Block No. 'Twenty-one (21), of the Oil City Addition to the Town of Boling, Wharton County, Texas, described in plaintiff’s petition.”

The sole complaint appellant makes here, through several propositions, is that the trail court erred in so overruling his general demurrer, the rationale of them all being that the appellee’s petition did not state a good cause of action for the relief so awarded him, in that it nowhere alleges either “that the appellant ever recovered a judgment against the appellee, or that the lien recorded was under the appellant’s judgment.”

The contention will be overruled; giving the petition in suit the benefit of every reasonable intendment, it is thought to have sufficiently stated a good cause of action for the relief so given; it, in substance, charged (1) that appellee on October 1, 1938, was the owner of the lots of land in the town of Bolding, was entitled tó and was actually in possession thereof, and was using the same as his homestead; (2) that on June 30, 1931, the appellant “filed a purported Abstract of Judgment in the judgment-lien records of Wharton County, Texas, in Vol. H, page 230, of the Judgment-lie'n records of Wharton County, Texas, for the sum of $250.00 principal, with interest thereon from May 9, 1931, until paid at 6% per annum, together with the sum of $14.00 costs of suit; the said judgment purporting to fix a lien upon said land and premises, — then and now, and continuously since, the homestead of plaintiff and his family, and is wholly void and ineffective as a lien on said land because of the facts herein alleged. (3) The said pretended lien constitutes a cloud on the title of plaintiff to his said land.”

It is true the pleading does- not specifically recite the judgment to have run in favor of the appellant against the appellee, or that the lien recorded was under such a judgment, but those details are clearly legitimate inferences from what was alleged.

Without further discussion, an affirmance will be entered.

Affirmed.


text:
    MUNOZ et al. v. RUSSELL.
    No. 10633.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 29, 1939.
    Kennedy Smith, of Raymondville, and F. G. Garza, of Falfurrias, for appellants.
    Keys & Holt and Oscar Spitz, all of Corpus Christi, for appellee.
   SLATTON, Justice.

The appellants having failed to file briefs in this Court, and there appearing no fundamental error on the face of the record, the judgment of the trial court is affirmed.


author: SMITH, Chief Justice.

text:
    TEXAS & N. O. R. CO. v. CARTER.
    No. 10530.
    Court of Civil Appeals of Texas. San Antonio.
    July 19, 1939.
    Rehearing Granted in Part Sept. 13, 1939.
    Second Rehearing Granted in Part Nov. 29, 1939.

      Moursund, Ball, Moursund & Berg-strom, of San Antonio, for appellant.
    Williams & Williams, of San Antonio, for appellee.
   SMITH, Chief Justice.

This suit was brought by Carter against the Railroad Company to recover a refund of freight charges upon shipments of corn from points in Southwest Texas to Cuero, where the product was shelled and reshipped to other points in Texas, and in some cases there milled, but in all cases reconsigned to points in other states. The refund is provided for in certain cases by intrastate freight tariffs issued by the Railroad Commission of Texas.

Carter’s right to recover the refund depends upon the sufficiency of his showing that the shipments were intrastate, rather than interstate, commerce. The trial court held with Carter and rendered judgment in his behalf for the amount of the refunds, plus attorney’s fees allowed by statute in such cases. The Railroad Company has appealed.

The suit involves twenty-three shipments of corn. The shipments were in two classes, which will be discussed separately in their order.

Appellee, Carter, operates a corn shelling plant at Cuero, in Dewitt County. It appears that he buys corn in the ear, in carload lots, at Texas points of origin, and has it shipped consigned to his order, at Cuero, where he shells it and then reships the shelled product to his customers at other points within the State.

In cases in the first class those customers reship, or reconsign, the shelled product to Marshall, where it is milled and the finished product reconsigned to points outside the State of Texas.

In cases in the second class the shelled corn is not milled in transit, but reshipped out of the State in the grain.

In both cases the original shipments were made on uniform bill of lading, shipper’s order notify appellee, to Cuero, known as the “transit point.” At Cuero appellee accepts the shipment and procures appellant to there “record” the freight-bill issued by its local agent. -This process of recording the freight' bill at the transit point is done at the instance of appellee to procure and preserve to successive tran-sitors the right to claim and exercise shelling, milling and other transit privileges entitling the transitors to reduced through interstate rates authorized in tariffs issued by the Interstate Commerce Commission, and actually applied to the movements involved in this case.

From Cuero appellee ships a car of shelled corn corresponding with the original shipment, by virtue of the freight bill issued and “recorded” by appellant, consigned to Dallas, shipper’s order notify appellee’s customer there. The latter in like manner procures the recording, of the freight bill and reconsigns the shipment to Sherman, whence the consignee reconsigns, in turn and by like processes, to an ultimate destination without this State.

By these processes the original shipment is moved through Cuero, after shelling, under the protection of the recorded freight bills, whereby shelling, milling in transit and reconsignment privileges, as well as the benefit of the through interstate freight rates, are preserved to the successive transitors.

In cases in the first class the same processes are pursued, except that the shelled corn is milled in transit at Marshall, under the milling-im-transit privilege procured by the same device of “recording” the freight bill at milling point.

Now, on tariff schedules issued by the Railroad Commission of Texas, as applicable to intrastate shipments, only, of course, the consignee at the shelling point (appel-lee) is entitled to an adjustment of the freight charges upon the basis of a twenty per cent reduction from the billed weight of the original shipment, and a proportionate refund of the normal freight charge. This refund rests upon an arbitrarily fixed reduction in the weight of the shipment earned by the elimination of the cob and husks from the corn in ear. On the other hand, it seems that ufider tariff schedules issued by the Interstate Commerce Commission, on interstate shipments only, of course, no such refund is allowed, but the through rate fixed in that schedule on such commodities must be collected by the carrier, which is punishable by heavy penalties for failure to make the collection. The carrier has no choice or discretion. It must collect the interstate rate upon interstate shipments, as interpreted by the Interstate Commerce Commission and the federal courts.

This brings us back to the question of whether the shipments involved were in intrastate commerce, or interstate commerce.

The material facts in the case seem to be settled by express stipulation or uncontroverted evidence, so that the controlling question becomes one of law. It appears that the commodity involved in these several shipments moved from point to point within this State, and thence to points without, in what is deemed in law continuous passage, broken only by stoppage for shelling and milling or diversion upon privileges procured and retained by shippers and consignees (through recordation of freight bills) in consideration of applicable through rates promulgated by the Interstate Commerce Commission.

The character of a shipment is determined not only by the intentions of the parties handling a commodity, but by actual facts and method of transportation. The shipper, or consignee, may intend and agree that a given commodity shall be shipped only between points in this State, and there taken out of transit. But if, upon arrival and delivery to him the consignee employs the carrier, on reconsignment upon the original bill of lading, and registration of freight bills, to continue the movement to another point in the State, to obtain the benefit of further privileges incident to a through rate, saved to him by the process of recorded freight bills, and the consignee there in turn exercises the privilege and reconsigns to a point without the State, the shipment ⅛ one in interstate commerce. This is true, even though the successive consignees change the form of the commodity while in transit, as in this case, where the changes are made upon transit privileges provided in lawful schedules and procured by the consignee or shipper in consideration of the benefits of through rates' promulgated by proper authority. Such is the case made here; and under the facts as we understand and have stated them, each shipment involved was one moving in interstate commerce upon a through rate promulgated by the Interstate Commerce Commission, which did not include, but excluded, the refund provided in intrastate shipments by tariffs promulgated by the Railroad Commission of Texas.

It appears, however, that certain of the shipments took a different course from those taking the interstate rate, and appellant admitted in its pleadings that in the excepted cases the intrastate tariffs applied, entitling appellee to the claimed refund in specific amounts, aggregating $38.49. A like admission was made by appellant as tp two other shipments, but as no formula is submitted by either party by which the amounts of the refund in those instances may be computed, we are unable to apply a remedy therefor.

Accordingly, the judgment of the trial court will be reformed so as to award ap-pellee recovery against appellant in the sum of $38.49, with six per cent interest thereon from date of judgment below, and as so reformed the judgment will be affirmed, at the cost of appellee. The original opinion will be withdrawn and this opinion substituted in lieu thereof.

Reformed and affirmed.

On Appellee’s Second Motion for Rehearing.

On further consideration, upon appel-lee’s second motion for rehearing, we conclude that the case is not one for rendition, but should be remanded for all purposes and as to each of the shipments involved, in order that upon another trial satisfactory findings may be elicited to shpw clearly which of the various shipments moved in interstate, and which in intrastate, commerce, under the general principles announced in the final opinion of this Court; findings of the amounts of refunds, if any, appellee may be entitled to on intrastate shipments, if any, and of the amounts of attorney’s fees, if any, accruing thereon. It is further suggested that this is the character of case in which the trial judge should be requested to prepare and file written findings of fact and conclusions of law.

For the purposes of another trial the parties' may withdraw from the files of this Court the original exhibits sent up with the record on appeal.

Appellee’s motion will be granted in part, and the judgment reversed and the cause remanded.


text:
    RENGER v. BOLAND et ux.
    No. 10907.
    Court of Civil Appeals of Texas. Galveston.
    Nov. 29, 1939.
    Paul C. Boethel,' of Hallettsville, for appellant.
    No brief filed herein-for appellees.
   GRAVES, Justice.

Everett Renger appeals from an order Of the County Court at Law of Harris County overruling his plea of privilege to be sued in Lavaca County, where he resided, on a cause of action filed against him in Harris County along with J. W. Bettis, who resided there, by A. T. Boland and wife, wherein the latter alleged that the two named defendants, acting together, had entered into and carried out a conspiracy to defraud the plaintiffs and thereby deprive them of the possession and right to possession of certain dental equipment of the value of $854; that the plaintiffs had delivered such property into the possession of J. W. Bettis for his use while attending the Texas Dental College in the City of Houston, along with his co-defendant, Everett R.enger; that the two defendants so acting, conspiring, and colluding together, with the design and purpose of depriving plaintiffs of such property and its value, although they each and both at all times well knew the same belonged to plaintiffs and had only by them been so delivered into the possession of J. W. Bet-tis-at Houston in Harris County in the nature óf a loan to enable him to better pursue his course as a dental student at such college, conceived and carried out the joint and fraudulent scheme of removing said property, without the knowledge or consent of plaintiffs, to Hallettsville, Lavaca County, Texas, and placing same in the office there of the defendant Renger, where it was still held and being used by the latter; that the defendants had each and both refused to recognize plaintiffs’ continued ownership and right to possession of such property, had declined to return it to them, and had damaged the same already in the sum of $100; they further sought judgment jointly and severally against both defendants for possession of the property, together with recovery of the damage already so done thereto.

The defendant Renger, in response to such suit against him in Harris County, filed his plea of privilege to be sued in La-vaca County, the county of his residence, and, to quote his own language in his brief, “alleged that he was an innocent purchaser for value, and that said suit was instituted in Harris County and said J. W. Bettis was joined as a party defendant for the express purpose of conferring venue on the Harris County Court at Law, that plaintiff Mrs. A. T. Boland and defendant J. W. Bettis, as mother and son, had colluded, conspired, and contrived together in the facts stated in plaintiffs’ petition to make J. W. Bettis a necessary party to the suit to compel the appearance and answer of the defendant Everett Renger in a court outside the county of his residence.”

Such is the gist of the issues joined by the parties, not only by the stated filing of the petition and the plea of privilege in response thereto, but also on the subsequent presentment of a controverting-affidavit by Boland and wife, and a hearing of the matter on oral evidence adduced, pursuant to which the appealed-from order was entered.

The venue as so laid in Harris County was expressly predicated upon Subdivision 4 of R.S. Article 1995, and the answering plea of privilege was in statutory form, duly conforming to R.S. Article 2007.

Without further statement, it is apparent under our recent decisions, such as Elliott Jones & Co. v. M. K. Towns, Tex.Civ.App., 283 S.W. 246, Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91, Sisco v. Sklar, Tex.Civ.App., 113 S.W.2d 999, and Farmer v. C. E. Williamson et al., Tex.Civ.App., 131 S.W.2d 973, that the controlling venue-fact involved was whether or not the ap-pellees, Boland and wife, had both alleged and proved in the requisite way a bona fide cause of action against J. W. Bettis, the defendant resident in Harris County.

The rule of law applicable was thus, stated by this court in the Elliott Jones & Co. v. Towns case, cited supra: “In order to maintain suit against joint defendant over [his] plea of privilege * * * to be sued in county of [his] domicile, burden-[of proof] is on plaintiff to make prima facie showing of bona fide cause of action against other defendant having [his] domicile in county where suit was brought.”

Subsequent holdings of our Supreme Court have descended to the further particular of declaring that the burden so laid upon the plaintiff in such a case of both alleging and fuily proving the essential venue-facts, must be met by proof in the usual way, not prima facie only; Compton v. Elliott, supra.

This court, after a careful review of this record, fails to find that there was any lack of such proof of the recited allegations in all respects as made; especially is there no showing here—as against the presumed finding the other way from the judgment of the trial court—that J. W. Bettis, the Harris County resident, did not so act in collusion, fraud, and conspiracy with the appellant in knowingly procuring the property for the purpose for which it had been entrusted to him, and, in pursuit of their joint design, further acted with him in removing it from Harris County to the residence of the latter in another county, with the objective of depriving such owners of the value thereof.

Neither is there presented any showing to the effect, as appellants’ quoted pleading asserts, that the appellee, Mrs. Boland, and J. W. Bettis had fraudulently conspired to and had caused the suit to be filed against appellant in Harris County merely to deprive him of the right to answer the same in Lavaca County; upon the contrary, the presumed finding of the trial court is the other way, and no sufficient attack has been made thereon through this appeal.

Indeed, while the appellees prescribed venue in Harris County under Subdivision 4 of Article 1995 only, in the stated condition of the record, it is not perceived why they might not also have relied on Subdivision 9 of that statute; Rotan v. Maedgen, 24 Tex.Civ.App. 558, 59 S.W. 585, 586, Baldwin v. Richardson, 39 Tex.Civ.App. 348, 87 S.W. 353, 354; Littlefield State Bank v. Moore, Tex.Civ.App., 257 S.W. 1007.

These conclusions require an affirmance of the trial court’s judgment; it will be so ordered.

Affirmed.


author: PRICE, Chief Justice.

text:
    SNELSON et al. v. DRANE, Judge, et al.
    No. 3943.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 28, 1939.
    Rehearing Denied Nov. 9, 1939.
    T. H. Neel; Co. Atty., of Monahans, and John B. Howard and Potash & Cameron, all of El Paso, for complainants.
    Roy A. Downey, of Royalty, for respondents.
   PRICE, Chief Justice.

This is an original proceeding in this Court brought by the County Judge, the County Attorney and the County Commissioners of Ward County, all acting in their official capacities, against the Honorable J. A. Drane, Judge of the District Court of Ward County, Ross Carr, and Honorable Roy A. Downey. The object of the proceeding is to have this Court prohibit and enjoin the further prosecution and trial of a suit filed on June 8, 1939, in the. District Court by said Carr, through his attorney, Mr. Downey.

It is, of course, well settled this Court has the authority to issue the writ of mandamus and all other writs necessary to protect its judgments against any wrongful interference therewith. Such wrongful interference would infringe upon the jurisdiction of this Court. Article 1823, Revised Statutes; Nash v. Hanover Fire Ins. Co., Tex.Civ.App., 79 S.W.2d 182.

A brief summary of the proceedings occurring prior to. the institution of the suit by respondent on the 8th day of June, 1939 is necessary to a proper understanding of our disposition of this proceeding.

On the 6th day of December, 1937, O. P. Jenson and others filed in the District Court of Ward County a contest of an election theretofore held to determine whether the county seat be moved to Monahans or remain at Barstow. ,The declared result of such election was in favor of removal. The petition assailed the validity of the election and sought to have the declared result annulled and to have same declared to be against removal. On February 7, 1938, the Court entered judgment declaring the election void. Contestants did not appeal from this judgment and same became final in the election contest case. Another election was shortly thereafter held to determine whether the ■ county seat should be removed from Barstow to Monahans. This election was in favor of Monahans, and it seems that the regularity and legality thereof have not been questioned.

On the 21st day of May, 1938, contestants filed a motion to set aside said judgment. This motion contained allegations sufficient to constitute same a bill of review. Con-testees filed answer to this motion pleading in abatement and by general demurrer and special exceptions. Thereafter the Court sustained contestees’ plea of abatement, general demurrer and special exceptions. The contestants declined to amend, and thereupon the Court dismissed the suit. An appeal was perfected to this Court and thereafter the judgment of the trial court was affirmed. See Jenson v. Snelson, Tex.Civ.App., 126 S.W.2d 500. An application for writ of error was dismisssed by the Supreme Court. The pleadings in the case are summarized in Jenson v. Snelson, supra, and for that reason áre not set out here.

It must be borne in mind that there are two judgments of the District Court of Ward County involved here. The first judgment in the election contest wherein the election was declared void, the second wherein the bill of review was denied and the appeal perfected therefrom. The second judgment was affirmed by this Court on appeal. A writ of error was dismissed for want of jurisdiction by the Supreme Court and same thereby became the judgment of this Court. Relators claim that the prosecution by respondents'of this suit is an interference with the judgment of this Court in that case.

It was adjudicated by the first judgment that the county seat election was void; by the second suit that the judgment in the first suit was a valid judgment.

Respondent Carr was bound by each of the judgments unless same are set aside. While he was not a party to the record to either, the election contest and bill of review were both class suits. Hovey v. Shepherd, 105 Tex. 237, 147 S.W. 224.

Respondent Carr is likewise prosecuting a class suit seeking to set aside the judgment in the election contest case. The grounds alleged are substantially that in fact the result of the election was in favor of the county seat remaining at Barstow, but the result was fraudulently declared in favor of Monahans; that contestants had evidence on hand to sustain such facts and sufficient evidence had been introduced to indicate this fact to contes tees; that thereupon an agreement was entered into between contes-tees and contestants that a judgment be entered declaring such election void. Further, the judgment was entered by the Judge on this agreement and not as stated therein in the pleadings, evidence and argument of counsel; that the agreement was void.

Plaintiff pleaded that he was a resident citizen of Ward County at the time of the institution of the contest and the rendition of such judgment and was represented by said contestants; that their acts in making such agreement was tantamount to fraud, and he is entitled to have said election contest proceed to trial. He seeks to have such judgment set aside.

The following are the allegations with reference to the judgment in the bill of review case: “That after said contest and unlawful order said contestants attempted to have same set aside by said petition filed in said election contest to set aside said judgment, which did not bind the public and this plaintiff because it did not allege the facts as they are herein alleged, and did not affirmatively state and present to the court the issue of whether or not such judgment, having been entered by agreement, was binding, and, therefore, the element of a fair trial required in such proceeding where the public is to be bound was not present, and hence this suit can and should be filed by this plaintiff.”

It is sought to set aside the election contest judgment, not the judgment holding same a valid judgment. If the plaintiff prevails in his suit, it will nullify the judgment entered by this Court holding said judgment valid. Plaintiff was bound by the judgment in that suit, that is, the bill of review suit. There is no allegation of fraud or unlawful agreement as to that action. If plaintiff prevails in this action, it will nullify the judgment of this Court in Jenson v. Snelson.

This judgment was on a general demurrer. This fact does not rob it of its finality as an adjudication of the merits of the case.

In the case of Houston Oil Company of Texas v. Village Mills Co., 123 Tex. 253, 71 S.W.2d 1087, 1089, Judge Harvey said, in the course of the opinion: “Where a suit is brought in an inferior court, by any of the parties or privies to such judgment, against those in favor of whom the judgment was rendered,. or their privies, and the suit directly involves the re-litigation of rights established by the judgment, and is of such a nature that, if successfully prosecuted, will result in a judgment which will purport the divesting of those rights, the prosecution of such suit will be prohibited as being an interference with the enforcement of the judgment of this court.”

This language was quoted with approval by Judge Sharp in Rio Bravo Oil Co. v. Hebert, Tex.Sup., 106 S.W.2d 242. In support of this principle Judge Sharp also cited Yount-Lee Oil Co. v. Federal Crude Oil Co., Tex.Civ.App., 92 S.W.2d 493. Since its rendition the case of Houston Oil Co. of Texas v. Village Mills Co., supra, has been followed in numerous cases: Rankin et al. v. Nash-Texas Co., Tex.Civ.App., 73 S.W.2d 680; Texas Nat. Bank v. Zellers et al., Tex.Civ.App., 75 S.W.2d 890; Evans et al. v. Moore et al., Tex.Civ.App., 109 S.W.2d 359; American Law Book Co. et al. v. Chester et al., Tex.Civ.App., 110 S.W.2d 950; Elder et al. v. Byrd-Frost, Inc., et al., Tex.Civ.App., 110 S.W.2d 172.

We are constrained to hold that where purpose and effect of an action are to render a judgment of an appellate court nugatory that same constitutes an interference therewith justifying a prohibition of the prosecution thereof. However, we do not mean to hold that even though a judgment be appealed and affirmed that same may not, in a proper case, be assailed in the trial court. Stated in another way, we hold that a suit ignoring a judgment of an appellate court which seeks to relitigate the matters concluded by said judgment is an interference with same and the prosecution thereof should be prohibited. As has been heretofore stated, if respondent prevails in his suit, the holding in Jenson v. Snelson, supra, thereby becomes of no force and effect.

Respondent Carr, together with all parties to the judgment similarly situated, obtained benefits from the judgment he now assails. This benefit was, the election was declared void and ineffective to remove the county seat from Barstow to Monahans. Had such judgment been obtained setting aside the declared result and declaring the result to have been against the removal the only additional right created would have been that there could not have been another county seat election for five years. See Article 1601, Vernon’s Annotated Civil Statutes. Under the judgment the county seat remained at Barstow until another election was held which, as before stated, went in favor of Monahans. However, these facts would not justify the granting of a writ of prohibition.

In another class suit in the District ■Court of Ward County entitled Miller v. Snelson, to which plaintiff was a party by virtual representation, it was held that Monahans was the county seat. This case reached the Supreme 'Court and it was there held Monahans was the county seat. Miller v. Snelson, 129 S.W.2d 288, 289. In the course of the opinion in that case Judge Hickman said: “Another ground was that the bonds were to be used for the purpose of erecting a courthouse at Monahans, which, it was alleged, was not the county seat of Ward county. It has now been definitely adjudicated that Monahans is the county seat of Ward county and was at the time the bond election was called. Jenson v. Snelson, Tex.Civ.App., 126 S.W.2d 500. The bonds could not be declared void on this ground.”

However, if the action did interfere with the judgment of the Supreme Court in the case of Miller v. Snelson, that would not afford grounds for prohibition by this Court.

We have given careful consideration to the fact that a writ of prohibition is an extraordinary remedy. The acts and discretion of other courts and parties should not he ‘prohibited except in extraordinary cases. We are further aware that it is not in every casé where a plea of res judi-cata may be validly urged a writ of prohibition is justified. It' is believed, however, that the facts as appearing in this record justify and demand the issuance of the writ.

It is ordered that writ of prohibition issue addressed to Judge Drane, respondent Carr and respondent Downey, attorney, prohibiting said named parties from taking further steps in the trial or prosecution of the said cause.

       Rutledge v. Atkinson, Tex.Civ.App., 101 S.W.2d 376.