(dissenting).
I am not in accord with the majority. The plaintiff, appellant here, is entitled to his day in court. As against demurrers, we must assume that the allegations in plaintiff’s petition are true, thus it does not rest with this court or the trial court to adversely decide the facts, or, dehors the record, determine the issues in advance of trial.
Plaintiff’s suit, evidenced by his petition from beginning to end, is not to set aside the judgments of the two District Courts of Dallas County — the 95th and the 14th— affecting the real estate and personal property described i-n plaintiff’s petition. The petition merely relates the invalidity of the judgments and the lack of jurisdiction of the courts, by which the possession of his property was surreptitiously taken, and by which the title thereto still remains in the plaintiff; for which,- through its receiver, it seeks recovery.
The receiver alleges all the facts leading up to the judgments and orders of the' courts, which, if true, no one can gainsay that the entire transaction by which plaintiff was deprived of his property, no innocent person intervening, should not be set aside. Judgments and orders of courts are not immune to just attack for fraud in their procurement by interested parties.
Summarizing briefly: On and prior to July 1, 1931, Texas American Syndicate, a corporation, then being the owner of the lands in suit, became involved in financial difficulties, necessitating the borrowing of $200,000 to carry on its oil and gas well operations on. lands described in this suit. The corporation being then managed by á trustee, the trustee secured a loan from the defendants named in the suit, by executing notes in the sum of $300,000, secured by liens on the Syndicate’s properties, $100,000 of which is claimed by plaintiff to be usury. Immediately or soon thereafter, the lender and lienholder caused the Centennial Oil & Gas Company to be formed, solely for the purpose of taking over the properties and business affairs of the Texas American Syndicate, selecting its own directors and attorneys and proceeded to manage and control the affairs of the new corporation, independent of the trustee then acting. Thus the lender and borrower, under the controlling agencies, became in fact the same interested parties, which plaintiff claims is illegal, usurious, ultra vires, a fraud perpetrated by the lender and its allied associates, and done for the sole purpose of defrauding the Centennial out of $100,000 and the properties in suit; and, in fact, did so defraud it. The fraudulent plan and scheme of defendants and their allies was recited in detail, severally alleged, naming the party defendants, the time of such fraudulent acts and their resulting effects upon the properties involved in suit, which I deem unnecessary to relate. Suffice to say, as against demurrers, the -allegations were sufficient to carry the issue to a trier of facts — court or jury.
The petition further alleges that in 1934, in the 95th District Court, in suit of Joseph Vojnar et'al. v. Centennial Oil & Gas Co., the defendant being under the dominant control of the holder and owner of the notes and liens, an order was made appointing, or purporting to appoint, one George B. Ray receiver of said defendant, Centennial Oil & Gas Company, to take charge of and administer its properties .and assets and, at the same time, the court appointed an attorney for the receiver and -a Master in Chancery — all done at the instance of the holder of the notes and liens and its allied agencies and associates named in the petition. Under such appointment, the receiver took immediate possession of all of said properties, including the properties in this suit, and began administration of the estate under the control and orders of said court and in pursuance of said appointment and authority of the 95th District Court. Thereafter, on June 26, 1936, that court heard and determined the amount due and owing to the Republic National Bank, the lender of the money and the holder and owner of the aforesaid notes and liens, and directed its receiver to sell all the property described in said orders. Whereupon, .the receiver, under such orders advertised the sale of said properties by posting notice of sale to be had on the first Tuesday in November, 1936; and again on October 31, 1936, the coúrt ordered the time of said sale changed and extended to the first Tuesday in February, 1937, instead of November, as aforesaid. During the pendency of the enforcement of these orders, the Judge of the 95th Court, on December 31, 1936, made and entered another order purporting to transfer said *719cause, Vojnar v. Centennial, supra, to the 14th District; and on February 1, 1937, that court made its order purporting to postpone the sale of the .properties belonging to the Centennial as fixed by the-95th District Court, from February 2, 1937, .to March 2,1937. And thereafter, on March 1, 1937, the aforesaid receiver resigned and the Judge of the 14th Court (instead of the 95th Court) accepted his resignation and appointed another in his stead. The last appointed receiver qualified and made the purported sale of said properties and executed deeds to" the defendant Bank under the authority and orders of the 14th District Court. Plaintiff’s petition sets out In detail the various transactions, reciting that the consideration stated in the report of sale and deeds executed thereunder was never paid; that at the time of such sale, the Centennial owed the Bank nothing on the indebtedness; that all the notes had been paid; that no notice of sale was posted as required by law, and that the purported sale was made to defraud the ■Centennial of its properties — engineered and promoted by the Bank’s officials and its allied defendants named in the petition. Quoting verbatim from the petition:
“Plaintiff further says that all said proceedings were void and without any legal effect, and that said deeds conveyed no title or rights to said grantee, Republic National Bank of Dallas, for the following reasons, to wit: (a) That said order of June 26, 1936, if the same ever had any validity or was lawful, which is not admitted but denied, thereafter became void and was not the basis of any sale and did not furnish any ground or authority for such sale because same was never carried out by' the 'receiver, George B. Ray, the •only person authorized by said order to •execute the same or to advertise said property for sale thereunder. (b) Because said order of June 26, 1936, was in effect set aside and annulled by the subsequent order of this Court of October 21, 1936, purporting to extend the time of said sale to the first Tuesday in February, 1937. (c) Because said sale as purported to have been authorized by said order of June 26, 1936, and October 31, 1936, was never affected by the receiver authorized .thereby to make said sale and to advertise said sale and was not made on the dates authorized and directed by either of said orders. (d) Because the purported order of the 14th District Court of date February 1, 1937, directing that the sale be postponed for thirty days from February 2, 1937, to March 2, 1937, was void and' said 14th District Court had no jurisdiction of said matter or of said cause, in that the order of December 31, 1936, made by this court purporting to transfer said cause to the 14th District Court was void and without authority of law, and said 95th District Court had no authority or power to transfer said cause to the 14th District Court or to invest said 14th District Court with jurisdiction to postpone the date of said sale as theretofore made or to assume control and jurisdiction of said receiver’s proceedings at that stage, or to set aside and alter the orders theretofore made by the 95th District Court, and that said order of December 31, 1936 so transferring this cause to the 14th District Court, arid the order of said 14th District Court of February 1, 1937, were each void and without authority of law and made without jurisdiction on the part of said courts of the matter covered by said orders, (e) That the order of said 14th District Court of March 1, 1937, purporting to authorize and direct said John C. Harris as such receiver succeeding said George B. Ray to make sale on the day following, that is, on March 2, 1937, of said properties was void and without any legal effect because of the matters and facts hereinabove alleged and the want of jurisdiction on the part of said 14th District Court, and because said sale had been advertised by George B. Ray, said advertisement stating that the sale would be made by George B. Ray, and that said advertisement made in pursuance of the previous purported orders of said 14th District Court was incompetent to confer upon another person, to wit, John C. Harris, the authority to make said sale, (f) And because said order of March 1, 1937, was void as being made by the 14th District Court, having no jurisdiction of said receivership proceeding or the matter covered by said order, (g) And that said purported order of the 14th District Court of March 22, 1937, purporting to confirm the report of said sale and authorize the said John C. Harris as such receiver to convey said properties in pursuance of said report and said pretended sale was itself void because said 14th District Court was without jurisdiction of the matters covered by said order or of said report, same being a matter then and theretofore within the exclusive jurisdiction of the 9’5th District Court.”
*720Plaintiff further contends, and I am in accord with his contention, that the Practice Act, Art. 2092, R. S., with amendments thereto, Vernon’s Ann.Civ.St.Art. 2092, especially Secs. 21, 22 and 24, does not authorize .the transfer of a case from one court to another for the sole purpose of entering interlocutory orders. Section 21 provides for an exchange of benches, thereby implying that the judge of one court could sit in another court and render judgment as of the court in which he sits, and that he could exercise such powers as the other judge could in that court. He would be acting for the court of exchange and all orders and judgments made are directed to he entered in the minutes of that court. This section further provides that a judge of one court can grant a restraining order or injunction returnable to another court, and transfer “any case or proceeding pending in his court to any other of said courts.” A “case” means an entire lawsuit with the subject-matter and parties involved therein, and not merely some interlocutory or ancillary proceeding to the suit. Indeed a “proceeding” could involve a separate and distinct phase of a case, hut it must take the form and effect of a conclusive action. Manifestly this statute does not authorize the transfer from one court to another in administrative proceedings by a receiver. Section 22 provides that when a judge in any one of the courts is not engaged, he shall notify the presiding judge of the district, and the presiding judge shall transfer • “the next case” which is ready for trial. It also provides that any judge not engaged in his own court “may try any case in any other court.” This provision empowers the “judge” to act in “any case” in the “court” where the case is pending. Section 24 provides that “any judge” may hear any part of any case pending in any of said courts and determine the same; or that he may hear and determine any question in any case, and that “any other judge” may complete the hearing and render judgment. This statute clearly implies that the case in which “the judge” acts shall remain in the court where the case is pending. The mere fact that the judge may be authorized to hear and determine cases pending in another court does not in itself make his action that of his own court, for a judge may be empowered by law to do many things which cannot be regarded as in any sense the action of the court. Nalle v. Austin, 101 Tex. 48, 104 S.W. 1050. There is nothing in the Practice Act contemplating that cases shall be transferred from one court to another for the purpose of making interlocutory orders, and certainly nothing to authorize such transfer after one court has assumed jurisdiction and extended its power to the extent of appointing a receiver and ordering and fixing a date for a sale of the impounded properties. The 95th district Court, which, for the purpose of this suit, had jurisdiction of this case, had determined the issues, appointed a receiver to make the sale of the assets and prescribed the terms and conditions of the sale. Then, on the “face of the record,” independent of the recitations in the judgments and orders of the 14th District Court, which were not introduced in evidence, and should not have been considered by the trial court or the majority in this court, plaintiff has a right to offer proof on trial showing the invalidity of action of the 14th Court. Such orders of the 14th District Court, as shown by plaintiff’s petition, if true, were void and cannot be the basis to convey the property in suit. It will be seen from the petition that the orders and judgment of the 95th Court were never carried out by any receiver appointed by that court, and no subsequent valid order was ever made for the sale of the properties in March 1937. Appellant was entitled to make proof,, if he may, of the validity of the orders by which the property was attempted to be sold. Evidently, plaintiff’s cause of action was not barred by limitations, as held by the trial court and affirmed by the majority here. Only the ten-year statute of limitation could effectively bar plaintiff’s suit.
Whether plaintiff will be able to prove the allegations in his petition is beside the question; and whether the orders and judgments of the 14th District Court, as to notice for the sale of the land, were or were not given, cannot be determined by the recitation in the judgment and order. If notice of sale was not given or posted, as required by law, or the debt had been paid before sale and no consideration passed to the receiver, such are questions of fact to be established on trial of the case. The judgments and orders are not conclusive of the facts recited therein. I respectfully dissent from the majority. Cause should have been reversed and remanded for trial.