I dissent from the decision of the majority, and will state my reasons. The majority opinion by Chief Justice BOND correctly states the issue of law involved, as follows: "Appellants contend that the proceeding to which the pleas of privilege are directed has for its purpose the enforcement of a certain judgment rendered on April 4, 1932, and that the court rendering the judgment is the only court having jurisdiction to enforce it; therefore, that no plea of privilege will lie to said proceeding. * * * Appellees contend that the proceeding instituted by appellants is a new suit, seeking recovery of a new judgment, on a new and independent cause of action from that adjudicated in the foregoing judgment."
It is my opinion that, in prior litigation between the parties, the question involved here was adjudicated and settled against the contention of appellees, and contrary to the holding of the majority.
In Hunt Production Co. v. Burrage, Tex. Civ. App. 104 S.W.2d 84, appeal dismissed, the majority opinion contains a recital of the events and litigation between the parties that led to the case then under consideration, and also to the case now under consideration. The question there involved was as to the validity of an injunction, restraining Hunt Production Company from prosecuting a trespass to try title suit filed in the district court of Rusk county, involving a subject-matter that previously had been definitely and finally settled in favor of Burrage by judgment of the court below, the injunction being ancillary to a pleading filed or proceeding begun by Burrage for the enforcement of said judgment, the said pleading or proceeding being the same against which the plea of privilege under consideration is urged. The decision in the injunction case turned on the character of said pleading, and, as will appear, the decision of the instant case will also turn on its character — that is, whether, as contended by appellants, it was merely a proceeding before the court rendering the judgment for its enforcement, or, as contended by appellees, it was the beginning of a new and independent suit.
In the instant case, the majority opinion proceeds on the idea that the pleading or proceeding against which the plea of privilege was filed was a suit within the meaning of the venue statute. This is precisely the argument made by Judge Bond in his dissenting opinion in Hunt Production Co. v. Burrage, Tex. Civ. App. 104 S.W.2d 92, 93, but the question was decided adversely to that contention, as will appear from an excerpt from the opinion in Hunt Production Co. v. Burrage, page 88, as follows: *Page 1237
"So we conclude that, if the motion or petition filed below by Burrage constitutes an effort on his part to have the court enforce and render effective its judgment, the writ of injunction prohibiting Hunt Production Company from prosecuting the suit pending in the district court of Rusk county (subject to future orders) being ancillary, was authorized and proper, either with or without the giving of bond as a condition precedent to the issuance of the temporary writ of injunction, the statute (article 4649 R.S.) not being applicable to the situation. Neill v. Johnson (Tex. Civ. App.) 234 S.W. 147, 150.
"On the other hand, if the proceeding, in essence and legal effect, constitutes and is a separate and independent action based upon the judgment, the injunction should be dissolved; because, in the first place, no bond was either required or given as a condition precedent to the issuance of the writ, as required by article 4649, R.S. [White v. Perkins (Tex. Civ. App.) 65 S.W.2d 423; Johnson v. McMahan (Tex. Civ. App.) 40 S.W.2d 920; Rogers Ranch Co. v. Darwin (Tex. Civ. App.)89 S.W.2d 828]; and, in the second place, even if the writ to stay proceedings in the trespass to try title suit, pending in the District Court of Rusk County was properly granted, it should have been made returnable to that court, the only court having jurisdiction to try the case. Article 4649, R.S.; Switzer v. Smith (Tex.Com.App.) 300 S.W. 31, 68 A.L.R. 377.
"So, reverting to the original question, that is, was the proceeding begun by Burrage simply an effort to have the court enforce its judgment, or was it the institution of an independent action based upon the judgment? In determining such a question, the Supreme Court, in Milam County Oil Mill Co. v. Bass, 106 Tex. 260, 163 S.W. 577, 579, said: `The proper test of the question therefore is, not whether the suit recognizes or repudiates the effect of the judgment, since that does not necessarily involve the jurisdiction of the court, but whether it amounts to an interference with its due enforcement and therefore invades a jurisdiction it is forbidden to trench upon.' In applying this test, each case must be determined on its own peculiar facts and circumstances. The judgment under consideration was not rendered under usual or ordinary circumstances; the suit was not by one individual against another, in which judgment for a specific interest in land was recovered, but being one of many owners of fractional undivided interests in a large leasehold acreage in the hands of a receiver being administered for the benefit of certificate owners, Burrage was entitled, not only to the confirmation of his undivided interest in the land, but also to a proportionate share of the oil runs therefrom. As shown before, the 500-acre tract in which Burrage established an undivided interest was dismissed from the receivership at the instance of Hunt and others on an allegation, to the effect that they owned the entire interest in the acreage, although at that time Burrage — who was not a party to nor did he have prior notice of the proceeding that resulted in the release of the property from the receivership — owned an undivided interest upon which he intervened, that subsequently matured into a judgment. We think it obvious that, if that situation had been brought to the court's attention, the property would not have been discharged from the receivership, without some suitable provision being made for the protection of Burrage's interest. From the inception of the receivership, October 31, 1930, to April 18, 1931 (the date of the order releasing the 500 acres from the custody of the receiver), the leasehold in question was in possession of the receiver, and from the latter date to the date of the Burrage judgment (April 4, 1932), it was in the possession of Hunt and others. The effect of the judgment was, not only to confirm the right of Burrage to an undivided 2-acre interest in the 500 acre leasehold, but necessarily also confirmed his right to a proportionate share of all oil runs to the date of judgment. The trespass to fry title suit filed by Hunt Production Company against Burrage seeks to relitigate the title to the 2-acre undivided interest already determined finally in favor of Burrage as to Hunt and those for whom he acted as trustee and, under the statute quoted and applicable rules of law, was also binding upon Hunt Production Company, which was organized and acquired title to the property after the judgment was rendered. The prosecution of the suit, in our opinion, can have no effect other than to embarrass, hinder, frustrate, and delay the final and successful enforcement of the judgment in favor of Burrage.
"We hold that the proceeding filed by him should not be considered an independent suit, but an effort to secure the enforcement of his judgment, and that the writ of injunction, being purely ancillary to the main proceeding, was authorized as a means of effectually enforcing the judgment. We *Page 1238 therefore affirm the judgment of the court below."
In dismissing Hunt Production Company's application for writ of error, for want of jurisdiction, the Supreme Court, necessarily, approved the correctness of the decision of this court, and in doing so necessarily approved the holding that alone authorized the decision — that is, that the proceeding begun below had for its purpose the enforcement of a judgment, and that the injunction was simply an ancillary remedy. In view of this situation, I think the following conclusions inescapable — that is, that the trial court, in granting the injunction restraining Hunt Production Company from prosecuting the suit in Rusk county; this court, in affirming its judgment; and the Supreme Court, in dismissing the application for want of jurisdiction, impliedly affirming the correctness of our holding — each, necessarily, acted upon the idea that the proceeding in the district court was simply a proceeding begun for the enforcement of the judgment in question; therefore, the adjudication constitutes and is now a part of the law of the case.
The court rendering judgment in favor of Burrage (the court below) alone had jurisdiction to enforce it, hence the proceeding invoking its power to that end is not a suit within the meaning of or controlled by the general venue statute; and, as a corollary, the plea of privilege urged by appellees is not an applicable remedy. The court below having issued the injunction as ancillary to said proceeding, in my opinion should summarily have dismissed the plea of privilege, as a matter of law, because inapplicable and unauthorized; consequently, I think the court erred in hearing and in sustaining the plea, thereby transferring to the district court of Smith county a proceeding for the enforcement of a judgment rendered by the district court of Dallas county.
It may be true that, the pleading for the enforcement of the judgment, filed by appellants, alleged facts that cannot be proved, and invoked remedies and sought relief to which they are not entitled; but these are matters addressed to the discretion of the trial court, to be considered when the pleading is heard.
The majority opinion also stresses the fact that appellant failed to introduce any evidence when the contest was heard. The proceeding for the enforcement of the judgment not being a suit within the meaning of the statute, its venue could not have been changed, therefore, the plea of privilege not being applicable, the question presented was one of law and not of fact.
It is also argued by the majority that Hunt Production Company did not have its day in court in the litigation that resulted in the judgment in favor of Burrage for the recovery of a 2-acre interest in the 500-acre tract. This position was also advanced and argued by Judge Bond in his dissenting opinion, in Hunt Production Co. v. Burrage, Tex. Civ. App.104 S.W.2d 93, 95. Although I do not regard that a relevant matter in the present case, yet the question was also discussed in the majority opinion in that case (104 S.W.2d 84, 87), and was disposed of as follows: "A contention that runs through the discussion is that, as neither Hunt nor Hunt Production Company had his or its day in court, the judgment in favor of Burrage was not binding on either. To this we cannot agree. Hunt, individually and as trustee, had his day in court on the hearing of the issues presented in his bill of review, and Hunt Production Company (the creature of Hunt and those he represented as trustee), having been organized and becoming purchaser of the land from Hunt during the pendency of the intervention by Burrage and after he had obtained judgment, stands precisely in the shoes of Hunt. The provisions of article 7391, R.S., are in point, reading: `Any final judgment rendered in any action for the recovery of real estate shall be conclusive as to the title or right of possession established in such action upon the party against whom it is recovered, and upon all persons claiming from, through or under such party, by title arising after the commencement of such action.'"
For reasons stated, I think the decision of the majority is erroneous, in conflict with the decision of this court, and necessarily also in conflict with the implied holding of the Supreme Court in Hunt Production Co. v. Burrage, supra, therefore, am of opinion that the court should have reversed the judgment of the trial court and dismissed the plea of privilege.