(specially concurring) .
The original opinion in which we affirmed the District Court in this case was handed down on December 29, 1941, and petition for rehearing was denied on February 2, 1942. Since that time the Supreme Court of Texas has clarified' the questions of State law involved here. Railroad Commission et al. v. Shell Oil Co., Inc., et al., Tex.Sup., March 11, 1942, 161 S.W.2d 1022. Moreover in the case of Selby Oil & Gas Co. v. Railroad Commission, 5 Cir., 128 F.2d 334, in an opinion by Judge Hutcheson we rendered a decision which is in conflict with the opinion first handed down in this case. I very much doubt that we have the right after the lapse of such a great length of time, after the time allowed for filing petition for a writ of certiorari has expired, to reopen the case and grant a new trial as has been done here. If, however, this motion is timely and legally granted, the two cases can on a new trial be determined in conformity with the decision of the Supreme Court of Texas, and the conflict that now exists in our two opinions may be obliterated.
On Motion of Republic National Bank of Dallas for Leave to File Petition in Intervention in the Nature of a Petition for Rehearing.
HOLMES, Circuit Judge.Less than a month after the first petition for rehearing in this case was denied, and the mandate sent down, the Republic National Bank of Dallas made a loan to A. O. Phillips secured by a deed of trust on some of the oil in place, the production from which is here in controversy. The bank now asks leave to intervene in this suit so that it may file a petition in the nature of a petition for rehearing, and obtain such relief as may be just. While it is incongruous to seek a rehearing on behalf of one who was not a party to any prior hearing, we have considered the bank’s motion, on its merits.
At the time the bank made its loan neither the term of court nor the time allowed to grant certiorari had expired, and it had no right to rely on the finality of our decision; but, if it did, it has not been prejudiced by the setting aside of our first, and the entry of our second, judgment. The affirmance merely upheld the judgment of the district court, wherein its jurisdiction had been sustained, the prayer for an injunction denied, and the plaintiffs relegated to the state courts upon all issues other than those under the federal constitution.
On appellants’ second petition for rehearing, during the same term, we set aside the-judgment of affirmance and remanded the entire cause to the district court for a new trial, merely restating at greater length *19the law of the case. We withdrew no part of our former opinion except that part which relegated state issues to the state courts, and even that prior ruling was qualified, as follows: “Unless and until the court of last resort of the State has decided that an ‘independent judgment’ as to reasonableness should be exercised by the [state] courts.” 1
The supervening decision of the Supreme Court of Texas, holding that the state courts might exercise such independent judgment, made it necessary for us to hold in our second opinion that the federal courts might decide such issues arising under the laws of the state. This was for the reason that prior to that time we deemed the particular point unsettled by Texas decisions, and were in doubt as to the state law on the subject.2
When the bank made its loan, if it was relying on our judgment of affirmance, it was presumed to know that the judgment of the district court in this case left the plaintiffs free to pursue in the state courts whatever rights the state statutes afforded them.3
Without waiving their objections to the motion of the bank for leave to intervene, the appellants have filed a reply thereto, traversing some, and claiming to be without knowledge of other, parts thereof. We agree with appellants that, even if the bank owns the interest it claims to have acquired, it voluntarily took the same subject to the outcome of this suit, and was apparently satisfied to rely upon appellees to present any issues affecting the interest so acquired. The bank does not claim that appellees have no remaining interest, and does not seek to be substituted in place of any party. Comparison of the grounds for rehearing asserted by the bank shows that it has merely adopted the grounds asserted by the appellees.
No one may acquire a vested interest in a decision until the time has elapsed in which the court has jurisdiction to change it. To uphold appellees’ contention would deprive this court of part of its jurisdiction, since, in granting the second petition for rehearing during the same term of court, we held that such jurisdiction existed to prevent an injustice.4
The effect of our first decision was to decide the federal constitutional question and relegate issues arising under state law to the state courts; our present decision remands those issues to the court below ; and, since the case had to go back to the district court for retrial, we thought it best to let the trial be anew in its entirety. When the bank made its loan it did so with the knowledge that the state court might decide adversely to those interests to which it was advancing credit. The effect of granting the rehearing and remanding “the case was to leave open upon their merits all issues presented by the pleadings. No one may acquire a property right to have a cause tried in the state court rather than in the federal court.
The motion of the bank for leave to file its petition is overruled.
124 F.2d 467, 469, 470, 471.
Railroad Commission of Texas et al. v. Rowan & Nichols Oil Co., 310 U.S. 573, 60 S.Ct. 1021, 84 L.Ed. 1368; Id., 311 U.S. 570, 61 S.Ct. 343, 85 L.Ed. 358; Id., 311 U.S. 614, 615, 61 S.Ct. 66, 85 L.Ed. 390; Railroad Commission of Texas et al. v. Pullman Company et al., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971.
Transcript of Record, p. 92.
See our rule 32, which implies that a mandate once issued may, during the term, he recalled to prevent injustice; also our rule 29, which implies that, after twenty-one days from date of judgment, a petition for rehearing may, during the term, be presented by special leave of court or of one of the judges.