On Motion for Rehearing
GRISSOM, Chief Justice.Appellants have filed an able motion for rehearing in which they are respectfully critical of our conclusion that, despite the existence of procedural errors, *679the judgment denying, the Garlingtons recovery should be affirmed for the reason that no other judgment could properly have been rendered. Appellants contend they have a right by bill of review to set aside the judgment rendered in cause 3807 on May 24, 1941, in the District Court of Howard County primarily because the land in controversy was then still within the exclusive jurisdiction of the bankruptcy court. They cite Nettles v. Doss, Tex.Civ.App., 161 S.W.2d 138. We recognize the correctness of the holding that under the Frazier-Lempke Act exclusive jurisdiction of the property of a bankrupt is- in the bankruptcy court until the mortgagee has obtained consent of that court to proceed with foreclosure proceedings. Whether the property here in controversy had been released from control of the bankruptcy court was in issue and decided in two cases in which the Garlingtons were parties. In Wasson v. Collings, Tex.Civ.App., 149 S.W.2d 1041, 1042, this court held the land in controversy had been discharged from control of the bankruptcy court and abandoned to the creditor, A. L. Wasson, and he had been permitted to foreclose his lien, and, for that reason, the District Judge was ordered to proceed to trial in cause 3807. Wasson sold the land under foreclosure of its deed of trust on January 2, 1940. Thereafter, he filed cause 3807 seeking judgment for the title and possession of said land. Wasson alleged therein that the bankruptcy court had discharged the land from its control and authorized him to foreclose his lien. Garlington and wife alleged the land had not been discharged from control of the bankruptcy court. The Garlingtons obtained a continuance of cause 3807 to obtain evidence to support said contention, which was presented by a plea in abatement. That issue was tried, evidence was heard, J. S. Garlington testified and it was held in cause 3807 that the bankruptcy court had discharged the land from its control and authorized Wasson to foreclose his lien, and title and possession of the land was awarded to Wasson. The Garlingtons appealed from that judgment to this court, our Supreme Court and the United States Supreme Court. Said judgment in cause 3807 was affirmed. It was thereby decided a second time, contrary to the Garlington’s contention, that the land had been discharged from control of the bankruptcy court.
The controlling reason for our decision that the judgment rendered in this bill of review proceeding was the only proper judgment that could have been rendered is that the Garlingtons neither alleged nor proved facts requisite to set aside a judgment by bill of review. It was essential that the Garlingtons allege and prove facts showing they had a meritorious defense and that they were prevented from presenting that defense by the extrinsic fraud oí the judgment creditor. They presented ho fact that tended to show that any act of appellees prevented them from presenting any defense in caiise 3807.
Appellants complain of the fact that we have taken notice of the records of this court in cause 3807.
“An appellate court will take judicial notice of its own records and judgment on a former appeal in the same case, or in suits between the same parties involving the same subject matter. An appellate court may take judicial cognizance of the record in the original case, even without its being referred to. * * * And on appeal in a suit on a judgment the court will take judicial notice of its own action in a suit to set the judgment aside. So, also, on an appeal in a suit to set aside a judgment, the appellate tribunal may look to and consider its records on appeals in the action in which the judgment sought to' be set aside was rendered.” 3-A Tex. Jur. 493, 494. See also 3-B Tex.Jur. 270, 271.
The motion for rehearing is overruled.
COLLINGS, J., not sitting.