(dissenting).
This is an original application filed in this Court for writ of prohibition and injunction against the Honorable Wm. M. *922Cramer, Judge of the 101st Judicial District Court of Dallas County, Texas, to desist from any further proceedings other than to dismiss a suit filed in the 95th Dis- . trict Court by Russell E. Smith and wife, Durrell (Frances) Smith, against the City of Dallas, County of Dallas, Hartford Accident & Indemnity Company and Dr. J. H. Stephenson, for damages alleged to have been the result of alleged specific negligence on the part of the defendant-relators, proximately causing the death of plaintiffs’ minor child. And the relators further seek to enjoin the respondents, their agents and attorneys to desist from further proceedings in said suit or "In any similar action therein in which they attempt, or might attempt to litigate such cause of action.” (Italics mine)
The suit in question was filed on January 26, 1946, and on February 2, 1946 the defendants therein filed answer, numerous special exceptions, general and special denials and pleas of res judicata; and on April 26, 1947, filed amended answers substantially as in their original answer. During the interim, between the filing of the suit and the defendants’ answer, the plaintiffs and defendants took numerous ancillary orders, invoking, among other things, the jurisdiction of the court below to require defendants’ admission of facts. On April 29, 1947, the court heard the exceptions and pleas, took the matters under advisement and is now holding determinative decision. The record discloses that the defendants theretofore had never called the court’s attention to their pleas of res judicata, or sought order or judgment thereon, but, on the contrary, in briefs on their motions for the writs of prohibition and injunction, they state — -I quote verbatim :
“That unless this writ of prohibition is granted and unless respondents Russell E. Smith and wife Durrell (Frances) Smith, are enjoined from further proceeding in this cause and unless the Honorable Wm. M. Cramer is directed by this Court to take no action in this matter other than to dismiss and strike the same from' the record, the petitioners will continue to be harassed by additional motions and proceedings and will continue to be called upon to make court appearances and to argue and rear-gue the law in this cause, which has been settled and finally determined by this Court. Petitioners further state that even though the Trial Court should sustain the exceptions which are now held under advisement, the said Russell E. Smith and wife will' again ask leave to amend their petitions and pleadings and will continue, for a long time in the future and indefinitely, to harass petitioners; that your petitioners Hartford Accident & Indemnity Company and Dr. J. H. Stephenson have been subjected to the expense of employing counsel, and all petitioners will be subjected to additional expense and annoyance in resisting and opposing the various amendments of the said Smith and wife, due to the failure of the Trial Court to promptly sustain petitioners’ exceptions and motions to dismiss the cause and bring the same to an end. Petitioners further state that even though the Trial-Court should promptly and finally dismiss the action pending before it, and even though plaintiffs should decline to amend, they verily believe that respondents would thereupon present an appeal'to this Court and would seek to re-litigate the identical questions previously adjudicated against them and, in such an event, it would be necessary for petitioners to file appropriate briefs and to appear in opposition to respondents’ appeal, all to their great annoyance and expense. The prosecution of this cause in the Trial Court constitutes an interference with the final judgment of this Court. Your petitioners have no speedy and adequate remedy at law by appeal or otherwise.”
The Constitution of Texas makes out a complete judicial system and defines the province of each of the designated courts. The district court is preeminently the trial court of general jurisdiction. The Court of Civil Appeals is primarily that of an appellate court of special and limited jurisdiction. Such courts may issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts.
Prior to attaining jurisdiction over a cause, courts of civil appeals will not award an injunction, or obstruct by writ of prohibition the action of a district court in the exercise of its judicial functions, when *923such writs would be tantamount to the exercise of original jurisdiction. Taylor v. American Trust & Savings Bank, Tex.Civ.App., 265 S.W. 727; Texas Electric & Ice Co. v. City of Vernon, Tex.Civ.App., 254 S.W. 503; Fulmore v. Benson, Tex.Civ.App., 245 S.W. 124; Ford v. State, Tex.Civ.App., 209 S.W. 490; Pollard v. Speer, Tex.Civ.App., 207 S.W. 620; Tipton v. Railway Postal Clerks’ Inv. Ass’n, Tex.Civ.App., 170 S.W. 113; Boynton v. Brown, Tex.Civ.App., 163 S.W. 599. An injunction is authorized only when it will be in aid of the jurisdiction of the court. Jurisdiction is stated to be the authority by which judicial officers take cognizance of and decide causes, and this includes the power to determine the legal results to follow, from the facts pleaded and proven, to hear and determine the matter in controversy according to established rules of law and to carry the sentence or judgment of the cou'rt into execution.
The jurisdiction of the district court includes the power to determine, either rightfully or wrongfully; it makes no difference how erroneous the decision may be, if the district court has jurisdiction of the parties and subject matter, its determination of the controversy is clearly within that court’s exclusive power. So, in the case at bar, there is no question but that the controversy between plaintiffs and defendants is properly pending before the district court and is within the jurisdiction of that court; and until that court, in the exercise of its judicial discretion and under the rules of procedure of this State, makes a final decree sustaining or refusing the defendants’ pleas of res judicata, thereby retaining or dismissing the suit, and the aggrieved party ■or parties perfect an appeal to this Court challenging the decision of the district court, has this Court jurisdiction to act; ■otherwise this Court usurps extra-judicial power in an independent action to compel the district court to do that which for some undisclosed reason it has delayed in doing. The mere filing of suit in the district court, even if such su’it be subject to pleas of res judicata based upon former judgments of that court or of the Court of Civil Appeals, or even the Supreme Court, such would not constitute obstruction or interference with the judgments of such courts as would render the judge of the district court subject to writs of prohibition or injunction by this Cou'rt.
In the case of Farrell v. Young, then District Judge, now Justice on this Court, 23 S.W.2d 468, 470, the relator Farrell sought writ of prohibition' and injunction against the judge, similar in many respects to the action here. Chief Justice Jones of this Court announced the rule:
“The mere filing of the suit by respondents in the district court of Forty-Fourth judicial district, and service "of citation on relator, even if such suit be subject to the plea of res judicata, based on the judgment of this court, would not constitute such an obstruction of the jurisdiction of this court, over the said judgment, as would render the judge of the district court subject to a writ of prohibition. Relator would be left undisturbed, except by the annoyance of the suit, in the full enjoyment of the rights secured by the judgment of this court. Milam County Oil Mill Co. v. Bass, supra [106 Tex. 260, 163 S.W. 577, 578], In the cited case the Supreme Court declares the rule of law, above announced, in the following language: ‘The power of a court to enforce its jurisdiction does not include an authority to prevent the prosecution of any suit to which a judgment of the court may be an effectual bar, bu't which, beyond presenting an issue as to the conclusiveness of the judgment upon the asserted cause of action, makes no attempt to disturb it, or to interfere with its execution or the exercise of rights established by it, as such a suit does not conflict with the exercise of that power which constitutes jurisdiction in the court, the power to hear and determine the cause and enforce the judgment rendered, and therefore does not violate its jurisdiction. The assumption of such right would invest a court not merely with the control of its own judgments and authority to enforce its jurisdiction, but with a further power to govern other courts in the exercise of their lawful jurisdiction; and the result would be that the issue of the conclusiveness of a judgment upon what is urged as a distinct cause of action could *924never be determined except by the court that rendered it. 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 Peck et al. v. Berry et al., 143 Tex. 294, 184 S.W.2d 272, 274, 156 A.L.R. 949, reversing this Court, 181 S.W.2d 116, the plaintiffs suit was, on hearing, dismissed— the allegations being wholly insufficient to state a cause of action; later, another suit embodying the same allegations was dismissed for procedural reasons; and then, ■later, a third suit of similar nature was filed. To which last suit the defendants then urged, among other defenses, a plea of res judicata because of the two prior suits of similar nature having been dismissed from which no appeal was taken; hence, became final judgments and barred under the doctrine of res judicata. The trial court sustained the plea and dismissed the suit. On appeal to this Court, the majority (the writer here voiced dissent) sustained the judgment of the trial court, 181 S.W.2d 116. The Supreme Court granted application for writ of error and, in opinion by Commissioner Folley, now a member of the Supreme Court, that court held:
“ * * * the doctrine of res adjudicata has no application in this case. A judgment of dismissal for failure to comply with the rule for costs (as was done in that suit) is not ground for the plea of res adjudicata to a similar suit thereafter filed, since the dismissal on this ground does not adjudicate the rights of the parties. (Citing authorities) Neither is the doctrine applicable ordinarily by reason of the mere sustaining of general or special exceptions to a petition. (Citing authorities) A ruling sustaining a demurrer or exception is merely an interlocutory order and decides nothing but the sufficiency of the pleadings.” (Citing authorities.)
So, in the case at bar, the two former suits decided nothing other than the sufficiency of plaintiffs’ petition. The fact issues involved were not decided and have never been decided by the trial court or the appellate courts; and if, perchance, the suit here involved is subject to the fate of the two former suits, of which it is not our province here to determine, it may well be expected that the Honorable Wm. M. Cramer will well and truly meet the issue and in du'e time, under the principles and rules of law, decide as to whether plaintiffs’ petition states a cause of action or is subject to the doctrine of res judicata.
Courts and judges thereof are not infallible, as recognized by law in allowing appeals by aggrieved parties. Hence, right or wrong, the appellate courts have no power to determine the issue involved or the sufficiency of the petition, or any other ancillary proceedings in advance of decision by the trial court and an appeal duly perfected to this Court.
There is nothing shown in relators’ motion to suggest that Judge Cramer has been negligent or arbitrary in disposing of the issue in suit, and the mere fact, as alleged by the relators, that “Unless the Honorable Wm. M. Cramer is directed by this court to take no action in this matter other than to dismiss and strike the same from the docket, the petitioners will continue to be harassed by additional matters and proceedings and will continue to be called upon to make cou'rt appearances and to argue and reargue the law in this cause, * * * ; that even though the trial court should sustain the exceptions which are now held under advisement, the said Russell E. Smith and wife will again ask leave to amend their petitions and pleadings and will continue for a long time in the future and indefinitely to harass petitioners; * * * that even though the trial court should promptly and finally dismiss the action pending before it, and even though plaintiffs should decline to amend, they verily believe that respondents would thereupon present an appeal to this Cburt and would seek to relitigate the identical questions previously adjudicated against them” shows conclusively that the relators have clear, complete and adequate remedy at law which, alone, prevents the issuance of writs compelling respondents to desist from fur*925ther proceeding's in said suit or, as relators allege, “in any similar action therein in which they attempt, or -might attempt to litigate such cause of action.”
Even if this Court had the power, and the petition showed equitable rights' for the remedy sought, and the trial court should obey the mandate of this Court, which I have no doubt he will, and summarily dismiss plaintiffs’ suit, then has this Court the power by injunction to prevent an appeal from su'ch final judgment of dismissal? 'Certainly the aggrieved party would have a right of appeal which cannot be abridged by any court.
Discretion of a trial judge in method of control and disposition of the docket of his court, is large; and unless continuance, of a cause on his own motion, or tardiness in decision, as alleged here, is so unreasonable as to be clear abuse of discretion, the Court of Civil Appeals cannot issue writs of mandamus, prohibition or injunction to compel the judge to act, either to proceed with the trial or dismiss the .suit. Matagorda Canal Co. v. Styles, Tex.Civ.App., 207 S.W. 562.
I do not think the facts disclosed in the application show that the Honorable Wm. M. Cramer is guilty of abuse of discretion as to justify this court in holding that he has refused to proceed with the trial, agreeable to the principles and Usages of law. The record here shows that the relators, defendants in the suit in question, have never sought to have the trial court to set the cause for trial; and, although the suit was filed in January 1946, the defendants did not urge action on their exceptions and plea of res judicata until April 29, 1947, when the court, after hearing the exceptions and plea, announced that it would take the matter under advisement. And, furthermore, the petition for writs of prohibition and injunction filed in this Court only on September 16, 1947, was the first evidence of relators’ aggrievement at delay by the trial court manifested. Re-lators have no equitable right to the in-junctive relief; their petition for injunction and prohibition should be dismissed and the writs denied. I respectfully dissent from the majority.