(dissenting).
The mere reading of the related history of this litigation in the majority opinion shows conclusively that plaintiffs’ alleged cause of action was not maintainable in the District Court of Dallas County, Texas, as against defendant’s plea of privilege, for the primary reason that the pleadings and proof show the absurdity of plaintiffs’ alleged cause of action.
The plaintiff Farrar (appellee here) was a surety on a supersedeas bond for Southern Underwriters and United Employers Casualty Company on appeal to the Texarkana Court of Appeals, from a judgment in favor of one M. V. Mowery, obtained in a District Court of Gregg County, Texas, in which the firm of White & Yarborough, attorneys, was awarded an interest. The Texarkana Court, on motion of said ap-pellees, ordered the appellant, Southern Underwriters, and its successor, United Employers Casualty Company, to execute an additional supersedeas bond, because of insufficiency of the bond on which Farrar was a surety. In an effort to comply with said order, the Southern Underwriters and United Employers Casualty Company, within the time prescribed by the court, executed another bond with Lloyds Casualty Insurer (appellant here) as a surety, payable to the appellees and conditioned under the terms of the statute as a supersedeas. This bond was forwarded to the Clerk of the Texarkana Court, who refused to approve it, and on *229motion of said appellees, Mower)», White & Yarborough, the Texarkana Court made an order directing its Clerk not to approve or file the bond. Whereupon, the Southern Underwriters and United Employers Casualty Company, appellants on the appeal, applied to our Supreme Court for privilege to file application for writ of mandamus against the Texarkana Court and its Clerk, to compel that Court to approve and file the bond and to stay by injunction the execution of the judgment. The ground alleged for the mandamus and injunctive relief was to the effect that the bond on which Lloyds Casualty Insurer was surety was sufficient for the purposes of super-sedeas. The surety, Lloyds Casualty Insurer, was not a party to the application and only its solvency was the basis for the complaint filed with the Supreme Court by appellants in the Texarkana Court of Appeals. On consideration of the petition, the Supreme Court allowed the filing thereof, stayed the execution on the judgment pending hearing on the merits of the petition, and set the application for assignment at a future date. In the meantime the appeal was decided (147 S.W.2d 834), the surety, Lloyds Casualty Insurer withdrew its suretyship on the proposed bond; and thereafter the Supreme Court dismissed the petition. Thus it will be seen that the bond never became an active force in the litigation.
I cannot relate how it could be determined that Farrar, a surety on the first bond, which, in fact, superseded the judgment, has a cause of action for contribution against the surety, Lloyds Casualty Insurer, on a bond that was never approved or filed in said cause; or how the named obligees in the bond, Mowery, White & Yarborough, who refused to accept the purported obligation, protested its approval and filing, on the ground that it was illegal and insufficient, can now seriously contend that liability attaches to the surety under the related facts in this case. Manifestly, the bond was not a valid and subsisting obligation, conferring venue in Dallas County, or that the bond could be the basis of a cause of action, or any part of a cause of action, arising in Dallas County, as grounds for overruling the defendant’s plea of privilege and entering judgment in plaintiffs’ favor. Farrar was bound for the judgment of more than $6,000 and paid only $1,400; then how could he recover for contribution against other bondsmen, if equally liable?
It is not fair to say that our Supreme Court, in effect, approved the bond by granting applicant a privilege to file a petition for mandamus against the Tex-arkana Court of Appeals and staying execution on the judgment. Such privileges are usually granted on the prima facie showing in the applicant’s petition and, in granting the privilege, the order in no way binds the obligors of the bond which is merely the basis of the petition. The bond becomes only an active force in the suit when same is ordered approved and, in fact, is approved and filed in the court having jurisdiction of the appeal. The majority seems to hold that a surety on a bond is liable for the acts of the principal on the bond, done outside the conditions of the bond, in that, because forsooth the principal made application to the Supreme Court for mandamus on the ground that the surety is solvent and the bond sufficient for the purposes of its execution, the surety thereby became liable for the acts and conduct of the principal. The absurdity of such a position is apparent. The obligation of a surety is limited to the conditions of the bond, so where the bond is not approved, or becomes effective for the purposes of its execution, no liability can attach to the surety on account thereof.
The venue of the alleged cause was retained in Dallas County on the sole ground that “a part of plaintiffs’ cause of action arose in Dallas County,” and that White & Yarborough being resident citizens of Dallas County, venue lies in Dallas County. I am unable to determine what “part” of the alleged cause of action arose in Dallas County, or what cause of action is alleged and, proven triable in any county. It is evident that the suit is merely an attempt to make the Lloyds pay for something it is not legally liable to pay, because the judgment creditors are unable to collect from those liable for their indebtedness. The Lloyds’ bond never superseded the execution on the judgment, and no act of the surety, directly or remotely, caused damage to appellees herein, hence no liability exists. I respectfully dissent from the majority in fastening liability on bondsmen who were willing to be bound, but prevented by the parties (appellees) who now, because of the ill-fated insolvency of their debtor, seek the liability.
*230The full facts having been revealed by the record, the judgment of the court below should in all things be reversed and here rendered for appellants.