(dissenting).
I dissent from the opinion of the majority. According to their opinion, as I understand it, an agreed judgment is of no greater dignity than a simple written contract. If an agreed judgment has no greater dignity than a simple written contract why take the trouble to get a court to solemnly adopt such an agreement as its judgment?
There is no dispute here about what the parties intended should be the rights of the parties to the judgment, in virtue of such agreement. As I understand the law- relative to judgments, the only .reason for bringing forward the fact that a judgment was rendered by consent of the parties is for the purpose of interpreting its meaning. 25 Tex.Jur. 385, et seq. In Freeman .on Judgments, Vol. 3, Sec. 1350, it is said that a consent judgment is more than a contract, “being rather the result of a contract and its embodiment in a form which places it and the matters covered by it beyond further controversy. * * *. Such a judgment has substantially the same effect as any other judgment rendered in ordinary course, and is entitled to the same presumptions.”— Again, it is stated in 49 C.J.S., Judgments, § 178, p. 315, "As a consent judgment has the sanction of the court, and is entered as its determination of the controversy, it generally has the same force and effect as any other judgment, although in some respects it may be given greater force than an ordinary judgment, and in other respects it may be accorded less force. Although the judgment is in the nature of a contract between the parties, the court retains power to see that its provisions are duly carried out.”
Though it is appellants’ contention that appellees must bring an independent suit upon the judgment, this is not because appellants hold the opinion that they are-.at liberty to contest any of the facts determin*394ed in the consent judgment. They candidly ' admit that there is no controversy between the parties as to the facts; that such controversy was determined by their compromise or consent judgment. As indicated above, the only reason for considering the fact that the judgment was a consent one, is to get at the meaning of the judgment (and other reasons not here pertinent). As I understand appellants’ contention, it is that appellees must bring an independent action on the consent judgment for the sake of the remedy which such independent action would afford, namely, that appellees would be relegated to an action ■ for damages for appellants’ breach, or to an action for specific performance. I am unable to see why appellees should be put to the trouble and expense to get a new judgment when they already have a valid one. The court has the jurisdiction to enforce its judgment even though it was agreed to by all parties. In 31 Amer.Jur., Sec. 882, it is stated, “To deprive a court of power to execute its judgments is to impair its jurisdiction, and the general rule ' is that every court having jurisdiction to render a particular judgment has inherent power and authority to enforce it, and to exercise equitable control over such enforcement. The court has authority to inquire whether its judgment has been executed, and will remove obstructions to the enforcement thereof. Such authority extends not only to such orders and such writs as may be necessary to carry the judgment into effect and render it binding and operative, but also to such orders as may be necessary to prevent an improper enforcement of the judgment.” See also 49 C.J.S., Judgments, § 585, p. 1071.
In addition to the foregoing elementary principle which I have alluded to, I call attention to the fact that the agreed judgment, which the court adopted, superseded the pleadings which the parties had filed in the case. It is no doubt true that the judgment, which the court rendered on the agreement of the parties, effected a dismissal (i. e., superseded) of any part of the pleadings which were contrary to or which did not ■ support the judgment which the court rendered. Hence, it would seem immaterial that, as stated by the majority, “The judgment neither grants nor denies any relief sought in the pleadings before the court [if this be true], nor does it command, order, adjudge, decree, or restrain anything. In fact, it includes no provision in the nature of a order or decree, unless it be the establishment of the existence of the contract between the parties and the various terms and provisions thereof.” I disagree with the majority’s conclusion, as will hereafter appear, where it goes on to hold, “Certainly there was no attempt by the judgment to adjudicate the substantial rights of the parties to the contract and the remedies available to them for the enforcement of such rights.”
To my way of thinking, the majority opinion begs the question where it insists on referring to the agreed judgment as the “contract.” And furthermore, when the court based its judgment on the contract, the judgment by operation of law settled and determined the “substantial rights” of the parties relative to the matter dealt with by the judgment. By the terms of the judgment appellants were obligated to construct the cattle guards according to the plans and specifications. Appellants admit that they are thereby obligated, at least to pay damages, for the failure to discharge the rights which were acquired by appel-lees. Appellants simply deny that appellees acquired any more than contractual rights by the agreed judgment.
Whether, in order, for appellants to bind themselves by contract effectively to construct the cattle guards, in person or by contractor, it would have been necessary for them to express in the contract the express intention that they would construct such cattle guards, we need not inquire. Nor need we inquire whether, by a simple contract, appellants could so bind themselves. But it is certain that such a simple contract, even if it be not specifically enforceable, is not illegal. In other words, it would have been a lawful discharge of appellants’ obligation to construct the cattle guards, had appellants done so. The point is, then, at what point did appellants have it in their power to draw back, and decline to construct the cattle guards?
*395We will assume that they had it in their power to draw hack and decline to perform in person or by contractor so long as the obligation was simply contractual. We will, for present purposes, go further, and concede that appellants could decline to perform up until the judgment became final.— But the district court got its power to enforce its judgment, and to issue all writs necessary to such enforcement, from the constitution and the laws of the State. Ordinarily we may examine the form of the order of the judgment in order to determine what the court intended. But here we know that, at the time the judgment was rendered, all parties intended that appellants should construct the cattle guards, in person, or through a contractor. It was too late, when the judgment became final, for appellants to draw back, and say that the court had no power to require appellants to obey its judgment. If the fact that the judgment was an agreed one is of any lawful concern here, it is only for the purpose of interpreting the judgment, as is pointed out above. The parties certainly must be taken to have intended that they should do what they agreed to do. Namely, that appellants should construct the two cattle guards. So much for the construction of the judgment. The court looks to its legal powers to find the means of the 'enforcement of its judgment. To deny the court the power to enforce the judgment, as is pointed out by citation of authority above, is to deprive the court of its jurisdiction.
Here appellees made known to the court that appellants had failed and refused to construct, or cause to be constructed, the cattle guards. It was only necessary on ap-pellees’ part to give the court such information. The court, by the order herein appealed from, required appellants to perform their obligation, as agreed to in the judgment. The only substantial defense urged by appellants was that their obligations were contractual! Appellants, as I .understand it, do not deny that, if their obligation is rooted in the court’s judgment, rather than in the contract of the parties, the court is entitled under the law to enforce its judgment by resorting to all its powers.