(dissenting).
I respectfully dissent.
I withdraw my concurring and dissenting opinion and substitute the following opinion for the one originally filed.
The appellee has filed in addition to his motion for rehearing, a motion requesting that this Court take judicial knowledge of the proceedings had in Brazoria County, Domestic Relations Court and in Nueces County in Cause No. 103,362 which was appellant’s prior application for writ of ha-peas corpus. I would grant both motions.
In my original concurring and dissenting opinion I agreed that the case should be remanded to the trial court. This was because the record before us was incomplete. Since then the appellee has attached to his motion for rehearing, certified copies of the record. We can now take judicial knowledge of the second and third suits filed by the appellant.
This is a child custody case. Donald P. Kohls and Linda J. Kohls, were divorced in Brazoria County in March 1969. They had one minor son, 4½ years old. The court awarded custody to the mother. The child was living with the maternal grandparents at the time of the divorce. On the same day of the divorce, the mother attempted to transfer her custodial rights that she had over the child to her parents. She executed an instrument in which she stated that she relinquished and released forever her right as a parent in and to her child to Charles Gambs, the grandfather.1 Donald P. Kohls, the father, remarried.
On September 30, 1969 the father filed a suit in the Domestic Relations Court of Nueces County (sometimes hereafter referred to as Nueces County Court) for a change of custody of the minor child from the child’s mother (his ex-wife) to him. He sought immediate temporary custody and permanent custody of the minor child on final hearing. The date for hearing on the application for temporary custody was set for October 10. On October 8 (an important date) the mother answered the suit. She stated, among other things, that she was at the present time imprisoned in California. She asked the court to change the permanent custody of the child from herself to her parents instead of the father. She attached to her answer, a copy of the notarized instrument1 relinquishing her parental authority and natural guardianship over the child to Charles Gambs (her father). She gave him her power of attorney. On the same date (October 8) her parents filed a plea of intervention seeking custody of the child. They also attached to their plea, a photocopy of the same instrument1 which had been signed by the mother. On the same date (October 8) the father filed a motion to cancel the hearing of October 10, for temporary custody. The court in granting the father’s motion, stated that because the mother was incarcerated in California and could not be present at the hearing, and because the child was now in fact in the temporary custody of the father, the court was cancelling the hearing on the temporary custody.
On November 5, 1969, the appellant filed a writ of habeas corpus (Cause No. 103,-362) in the Domestic Relations Court of Nueces County, Texas (called hereafter the second suit). On November 26, 1969, the mother filed another application for writ of habeas corpus in Brazoria County, in the same Court of Domestic Relations (sometimes hereafter called Brazoria County Court) that had earlier heard the divorce and which court had originally deter*464mined the custody of the child. This was the third suit filed by the parties for custody and/or possession of the child.
It is now clear from the record, that the appellant has sought to adjudicate her right to her child in three suits in two different counties during the months of October, November, and December of 1969. The first action brought by the appellee is the subject of this appeal.
In the second suit appellant’s application for writ of habeas corpus was dismissed December 1, 1969, by the Nueces County Domestic Relations Court upon the granting of a plea in abatement filed by the ap-pellee. No appeal was taken from this judgment. It is final.
In the third suit in Brazoria County the appellant sought a re-affirming of her custodial rights of the child in her and the physical delivering of the child over to her. The appellee answered the appellant’s writ of habeas corpus in Brazoria County: (1) claiming res judicata by virtue of the appellant’s writ of habeas corpus action in Nueces County (the second suit); (2) a plea in abatement (because of the first suit) ; and (3) subject to these pleas he sought custody in himself.
The Brazoria County Domestic Relations Court had jurisdiction to determine the mother’s application for writ of habeas corpus. It had potential jurisdiction to render a valid final judgment as to a change of custody. The majority of this Court collaterally attacks this final judgment of the Brazoria County Domestic Relations Court and holds that it is void.
Generally speaking the only grounds on which a judgment can be held for naught in a collateral attack is the absence of one or more of the following elements: a legally organized court; jurisdiction over the subject matter; jurisdiction over the person and power to render the particular relief awarded. 34 Tex.Jur.2d § 269.
It is undisputed that the Brazoria County Domestic Relations Court was a legally organized court. It had jurisdiction over the parties: the appellant who filed the suit; and the appellee who was personally served by citation. The residence of the minor child was in Brazoria County. Additionally, all of the parties appeared in court and announced ready for trial. The Domestic Relations Court sitting in Brazo-ria County had the power to render the particular relief requested. The only other matter subject to collateral attack is the question concerning the jurisdiction over the subject matter. I would hold that the Domestic Relations Court in Brazoria County had jurisdiction over the subject matter by reason of the conduct of the parties who are now judicially estopped to deny its jurisdiction.
“A party may be guilty of such conduct relating to the matter as to estop himself from asserting the prior active jurisdiction of a court in which a suit is first filed over another court in which a suit is subsequently filed involving the same subject-matter and parties. * * * ” V. D. Anderson Co. v. Young, 128 Tex. 631, 101 S.W.2d 798 (1937); Wheeler v. Williams, 158 Tex. 383, 312 S.W.2d 221 at 228 (1958) and the many cases cited therein. Johnson v. Avery, 414 S.W.2d 441 (Tex.Sup.1966). The appellant sought relief from the Brazoria County Domestic Relations Court praying that custody of the minor child be re-affirmed in her. That court in denying the relief she sought, and in dismissing her writ of habeas corpus action, held that she had judicially renounced any and all custodial rights that she might have ever had in the minor child. This judgment has become final. No appeal has been taken by either party.
The court in Anderson stated “ * * * In the case at bar both the district courts involved have potential jurisdiction of the subject-matter of this litigation. The real question at issue is which of such courts ought to be allowed to exercise active jurisdiction. * * * ” This is not the question in our case. The question here is where a trial court has determined that it *465has jurisdiction and proceeds to exercise active jurisdiction, can the losing party collaterally attack the judgment of such court in an appeal from a different court which recognized the active jurisdiction of such other court ?
The mother’s parents who were interve-nors in the Domestic Relations Court of Nueces County were not indispensable parties in the Brazoria County habeas corpus action. In fact they are not even proper parties since they were strangers to the original divorce suit. Article 4039a, V.A. T.S.; Thrash v. Cochran, 360 S.W.2d 587 (Tex.Civ.App.—San Antonio 1962). The pleadings in the Brazoria County court were sufficient to make the custodial determination made by the trial court in its judgment. 20 Tex.Jur.2d § 367, pp. 688-689.
In order for a collateral attack on a prior judgment to be entertained in a subsequent suit, the lack of jurisdiction must affirmatively appear on the face of the judgment or in the record. 34 Tex.Jur.2d § 267, § 268, and § 331. It is also'a cardinal principle governing the collateral attacks on judgments that intrinsic evidence to the record may not be considered and the recitations in the judgment control. 34 Tex. Jur.2d 332 and cases cited therein. Although an erroneous exercise of power can be subject to a direct attack, by an appeal, a writ of error, or bill of review, the complaint cannot be raised by a collateral attack on the judgment. Lewright v. Manning, 392 S.W.2d 466 (Tex.Civ.App.—Corpus Christi 1965) and cases cited therein.
Where a party invokes the exercise of the jurisdiction within the court’s general powers, he will not be thereafter heard or urged that the court was without jurisdiction to render the judgment so rendered. Moore v. Moore, 430 S.W.2d 247 (Tex. Civ.App—Dallas 1968, n. r. e.).
The record does show that there was pending another case involving the same parties ( i. e., the suit in the Domestic Relations Court of Nueces County). However, where a second suit has been filed in a court with co-ordinate authority, and a plea in abatement has been filed setting out the prior jurisdiction such plea brings into play the exception to the well-known rule; that of giving the court where a suit has first been filed prior right to exercise active jurisdiction. This exception permits the subsequent court to determine whether a party has been guilty of such conduct relating to the subject matter as to estop himself from asserting the prior active jurisdiction in a court in which a suit is first filed over another court in which it is subsequently filed. Should the second court resolve the fact issue favoring its jurisdiction then the second court becomes vested with dominant jurisdiction and the prior action is postponed until a final disposition of the case is had. Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303 (1956) and Russell v. Taylor, 121 Tex. 450, 49 S.W.2d 733 (1932).
The only court possessing the power to perform the appellate function of reviewing the sufficiency of the evidence heard on the plea in abatement is one of the intermediate appellate courts in Houston (the First or Fourteenth Court of Civil Appeals) which has jurisdiction over the Domestic Relations Court of Brazoria County, Texas. This Corpus Christi Court of Civil Appeals is without power to review the Brazoria County judgment. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926). Since the Brazoria County Court heard evidence and considered the plea in abatement and determined that it had jurisdiction, the Nueces County suit was abated until the judgment in the second suit in Brazoria County is set aside. Since the jurisdictional determination was a factual determination that became final and was never set aside on appeal, the Brazoria County judgment must be given absolute verity. The recitals in the judgment so state and the evidence concerning the trial court’s reason for overruling the plea in abatement is not subject to attack on appeal in this Court. Cleveland v. Ward, supra.
*466We need not decide whether appellant’s written agreement renouncing her right to the child was a binding agreement or not, or even whether the Brazoria Court considered it. This Court cannot look into the evidence that prompted the Brazoria Court to render its judgment, as a basis for setting it aside.
I would hold that judgment rendered by the Brazoria County Court of Domestic Relations determining that the appellant Linda J. Kohls had renounced any and all legal custody she may have ever had over the minor John Paul Kohls was a final judgment as of December 4, 1969, and that the Court of Domestic Relations of Nueces County was correct in determining that this judgment was res judicata as far as the mother was concerned in the Domestic Relations Court of Nueces County as of December 22, 1969. I would affirm the judgment of the Domestic Relations Court of Nueces County, Texas.
. (Agreement copied in full in majority opinion)