joined by Justice Garwood, dissenting.
The writer drew this case upon its submission and with the exception of the statement of facts, which has been omitted, the following was submitted as the proposed opinion for the Court. The majority of the Court did not see fit to agree so it is filed as a dissenting opinion.
Unquestionably, the filing of the pleas in abatement in the Travis County District Court case by the plaintiffs in the Bexar County District Court case was the right and proper thing to do, and required by our decisions. Russell v. Taylor, Texas Comm. App., 121 Texas 450, 49 S.W. 2d 733; Gage v. McCurdy, Texas Civ. App., 60 S.W. 2d 468, affirmed 123 Texas 558, 69 S.W. 2d 56; Anderson v. Young, 128 Texas 631, 101 S.W. 2d 798; Lancaster v. Lancaster, 155 Texas 528, 291 S.W. 2d 303.
Under the general rule of law applicable, plaintiffs had the right to bring their suit in the Bexar County District Court *395against the receiver. Article 2310 and 2311, Vernon’s Texas Civil Statutes, 1925; Kirby v. Dilworth and Marshall, Comm. App., 260 S.W. 152; Prince v. Miller, 123 Texas 118, 69 S.W. 2d 52; Joiner v. Currin, Texas Civ. App., 118 S.W. 2d 652, no writ history. There is an exception to this well-established rule of law, and it is recognized and stated in Kirby v. Dilworth and Marshall (1), supra, as follows:
“However, that any court of this State, in which the receiver is authorized by the foregoing article [2310] to be sued, cannot legally interfere in any manner with the possession, custody, control and disposition of the property in the hands of the receiver, is elementary and indisputable.”
See also Prince v. Miller, (1, 2) supra, and McCurdy v. Gage (4), supra.
Plaintiffs in the Bexar County Court rely upon Cleveland v. Ward, 116 Texas 1, 285 S.W. 1063, and contend that the suit having first been filed in the Bexar County Court, that court possessed exclusive jurisdiction to hear and determine the suit. In Cleveland v. Ward the first proceeding were had in the Johnson County case. The receiver appointed by the Dallas County District Court was in possession of the property and administering it without any objection by any parties. The parties to both causes of action were the same as were the causes of action asserted in both suits. In our case, the appointment of a receiver by the Travis County District Court was the first action taken. Under the rules of common law, no suit could be filed against the receiver in any court other than Travis County without the permission of the Travis County District Court. That rule has been abrogated by Articles 2310 and 2311 of Revised Civil Statutes, 1925, as amended. I have cited the cases above which recognize an exception to this statutory rule. In the McCurdy v. Gage case, supra, the Dallas County District Court, although the last court in which suit had been filed, was permitted to retain jurisdiction, and the receiver appointed by it was left in charge, even though suit had been first filed in the District Court of Gregg County. Cleveland v. Ward, supra, does not control this case.
From the exhibits before us I find that the instruments which plaintiffs in the Bexar County case are seeking to uphold, and thus give the plaintiff prior rights and claims to assets of General American superior to the rights and claims of the receiver, include practically all the assets of General American. The in*396struments included, among others, transfer of the premium income of General American in the sum of $399,000.00 and a later one for $750,000.00; transfer of $542,000.00 worth of agency accounts receivable of General American, as well as the other transfer and assignments hereinafter discussed. On April 15, 1954, the board of directors ratified and' confirmed the previous deeds of trust and transfers of assets for the specific purpose of indemnifying the two Cowdens, Schwarz, and Erwin from any individual loss by reason of having guaranteed the $750,-000.00 loan from the Bank on December 23, 1953. On April 17, 1954, General American, acting through and by its board of directors, executed a note for $450,000.00 to the individuals last above named, and secured said note by deed of-trust on the two buildings in San Antonio belonging to General American — subject to the first liens against each of said buildings,- and further conveying practically all of the tangible assets of General American in the form of first mortgage notes, stocks and bonds as further security for said $450,000.00 note. On April 26, 1954, two deeds of trust were executed and delivered to take the place of the one deed of trust of April 17, 1954. One deed of trust conveyed the two buildings and all the other assets of General American, and again agreed to indemnify the two Cow-dens, Schwarz, and Erwin against all personal loss. From the record before us, I see that practically all of the assets of General American were pledged to the two Cowdens, Schwarz, and Erwin, and it is these instruments which the plaintiffs are seeking to have validated and upheld in the Bexar County suit. Thus it is seen that the Bexar County suit seeks control of all the assets of General American as against the receiver. The plaintiffs in the Bexar County suit pleaded that “until the court hears this case and fixes and declares the rights of the respective parties hereto, neither the Receiver nor plaintiffs will know what the Receiver may properly have available for distribution to the creditors, and to which creditors and in what amount, this uncertainty arising from the fact that the Receiver does not recognize and acknowledge the -priorities, securities, rights, and indemnity of plaintiffs as herein alleged.” (Emphasis added). The assets are the same assets which had been placed in charge of the receiver by the order appointing him. The Bexar County suit would therefore not only interfere with the receivership court in control, management and disposition of the assets of General American, but the Bexar County suit is-a contest with the receiver over such assets, and would deprive the receiver of assets, and leave only a dry receivership with nothing to administer for the benefit of- the creditors of General- American. Such action cannot be' taken by the Bekar County suit, and *397Judge Roberts of the 126th District Court of Travis County rightly overruled the plea in abatement filed by the plaintiffs in the Bexar County case, and rightfully retained jurisdiction to try and determine the Travis County cause of action. ■
In my view it follows that the Bexar County District Court should take no further action in the cause pending before it, except to dismiss or abate the same, pending the final disposition of the Travis County cause. The rule of law laid down by the majority in the present case will no longer apply by virtue of the provisions of Article 21.28, Sec. 4(e), Acts of 1955, 54th Leg., p. 737, ch. 267. This enactment repeals Articles 2310 and 2311 as far as liquidation of insurance companies is concerned, cerned.
Opinion delivered April 2, 1958.
Rehearing overruled April 30, 1958.