(dissenting).
In my opinion, the writ of prohibition, pursuant to Art. 1823, V.A.C.S., should issue on the City’s plea of res judicata — the validity of Love Field Revenue Bonds having already been established in the Atkinson suit by final judgment of this Court and confirmed both by the Supreme Court of Texas and the United States Supreme' Court. “The doctrine of ‘res adjudicata', or estoppel by reason of a former judgment, rests upon the principle that a cause of action which has been once determined' upon its merits by a competent tribunal,, between parties over whom that tribunal; had jurisdiction, cannot afterwards be litigated by them in another proceeding, either in the same or different tribunal, * * 24 Words and Phrases, Perm. Ed., “Res, Adjudicata”, p. 146.
Of these Revenue Bonds, Series No. 395 in amount of Eight Million Dollars were involved in the Atkinson case which could not be sold and delivered by reason of that litigation. On final adjudication of the Atkinson case as recited in the majority opinion, the City then continued a financing of the construction of the Love Field Runway by issuance of the same General Revenue Bonds, Series No. 401, but in the lesser amount of Five Million Dollars, to be sold September 24, 1962, on which date the Respondents filed another Civil Action in Federal Court, No. 9276, styled Daniel C. Brown et al. v. City of Dallas et al., again seeking permanent injunction against the sale of these bonds. No temporary injunction was sought and none was necessary, for, due to the unique nature of bonds and bond issues the mere filing of suit in Federal Court would have that effect.
Courts of Civil Appeals may protect its jurisdiction by writ of prohibition or injunction against maintenance by defendants to the judgment of a suit in another tribunal attacking the validity of the original judgment or seeking to enjoin its execution. See Long v. Martin, 116 Tex. 135, 287 S.W. 494. Does Respondents’ suit in the Federal Court have this emphasized effect? It undoubtedly does.
Our Supreme Court of course, recognizes the doctrine of res adjudicata and has permitted this prohibitory writ to issue in all instances where the operation of the prior judgment or its execution has been directly *377interfere!? with, but not so (as in City and County oi Dallas v. Cramer, Judge, Tex. Civ.App., 207 S.W.2d 918) where “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.” Obviously the case of Milam County Oil Mill Co. v. Bass, 106 Tex. 260, 163 S.W. 577, was of the latter class; the Supreme Court stating that the cause of action there asserted “makes no attempt to disturb it (the prior judgment) or to interfere with its execution or the exercise of rights established by it.”
Judge Phillips further states in Milam 'County Oil Mill Co. v. Bass, supra, that: “The power to enforce its judgments necessarily inheres in a court as an essential attribute of its jurisdiction, but there is a manifest difference between the enforcement of a judgment and the prevention of a suit which makes no attempt to obstruct its execution, but denies its conclusiveness upon what is alleged to be another cause ■of action. * * * The jurisdiction of the ■court is not invaded by the mere assertion of rights through such method, even in ■contravention of the judgment, so long as its operation is left unimpeded. * ⅜ ⅜ ”, (emphasis mine) And in Houston Oil Mill Co. of Texas et al. v. Village Mills Co. et al., 123 Tex. 253, 71 S.W.2d 1087 the Supreme Court, referring to Milam County Oil Mill Co. v. Bass, supra, stated: “In that case it is by no means clear that the judgment sought in the Hill County suit, the second suit, would directly interfere with the operation of the prior judgment ■of this court.”
The majority does not and cannot say that this second suit of Brown et al. v. City of Dallas et al., is not a renewal of the litigation foreclosed in the Atkinson case, the mere filing of which constitutes such a ■cloud upon the title to these general Revenue Bond issues as to preclude their sale. In the situation thus presented, the majority merely begs the question by their negative ruling on the application for writ of prohibition; concluding as they do that a plea of res adjudicata can as well be sustained by the Federal District Court, and such indeed may be the ruling of Judge Sarah T. Hughes. Even so, the door will be opened for full scale relitigation of the validity of these bonds in another trial court, on through the United States Circuit Court of Appeals and again to the Supreme Court of the United States. On the other hand a grant of the relief prayed for by the City of Dallas will finally terminate this prolonged litigation, save for a possible appeal to the Supreme Court of Texas.
The legal maxim of “justice delayed is justice denied” is truly relevant to the adjudicated rights of Petitioner City of Dallas.