I dissent. This was originally written to be the opinion of this Court, and same is filed, with minor changes and additions, as my dissent herein.
Prior to June 15, 1955, Dr. C. W. Payton was employed by the Hurst Eye, Ear, Nose & Throat Clinic, hereinafter referred to as the Clinic, at 315 North Center Street in the City of Longview, Gregg County, Texas.
On June 17, 1955, Dr. V. R. Hurst as business manager of the Clinic, entered into a contract with Dr. Payton wherein and whereby Dr. Payton contends that he was granted the right to purchase the goodwill and equipment of said Clinic, together with a 5% interest in the good-will value of said business, and to lease a part of the Clinic. Dr. Hurst died December 7, 1957. Differences arose as to the rights of the parties soon thereafter. On March 13, 1958, Dr. Payton filed suit in the 124th Judicial District Court of Gregg County against the Clinic and Mrs. Genevieve Hurst, Independent Executrix of the Estate of V. R. Hurst, Deceased, for specific performance of the contract; and, in the alternative, for damages, the case being numbered 30,102-B upon the civil docket of said court.
On March 12, 1958, Dr. Payton presented his petition to Judge Moore, Judge of the 124th Judicial District Court, who issues his fiat ordering a hearing on the petition of Dr. Payton to be held on April 28, 1958, and directing the Clinic and Mrs. Hurst to show cause why injunction should not be issued and receiver should not be appointed as prayed for in said petition.
On May 17, 1958, the Clinic and Mrs. Plurst filed a separate suit against Dr. Payton in the same court, numbered 30,-277-B, for an injunction seeking to enjoin Dr. Payton from going upon the Clinic premises, etc. The petition was presented to Judge Sam B. Hall, Judge of the 71st Judicial District Court, which judicial district includes Gregg and Harrison Counties.
There is no showing that the hearing was held on Dr. Payton’s petition on April 28, 1958, or that such hearing was re-set.
There appears in the record an exchange of benches between Judge Sam B. Hall, Judge of the 71st Judicial District, composed of Gregg and Harrison Counties, and Judge David Moore, Judge of the 124th Judicial District, composed of Gregg County only. The exchange of benches is dated May 5, 1958. Mrs. Hurst and the Clinic presented their petition for temporary restraining order to Judge Hall of the 71st District Court and he, apparently acting under the exchange of benches, granted a temporary restraining order, operative until a hearing upon their request for a temporary injunction could be had, restraining and enjoining Dr. Payton or his agents “from coming about or using the premises, etc. * * * ”
*737To the petition of Mrs. Hurst and the Clinic filed in said cause No. 30,277-B, Dr. Payton filed a plea in abatement and motion to dissolve the temporary restraining order. On May 22, 1958, a hearing was held and Dr. Payton’s plea in abatement and motion to dissolve were overruled and a temporary injunction was granted which was to the same effect as the restraining order. The order dated May 22, 1958, overruling the plea in abatement, motion to dissolve and granting a temporary injunction did not state any reason for the granting of the temporary injunction.
Dr. Payton excepted to the order and gave notice of appeal. On May 23, 1958, Dr. Payton filed his motion for findings of fact and conclusions of law.
A second order overruling Dr. Pay-ton’s plea in abatement and motion to dissolve the temporary restraining order, and granting a temporary injunction, appears in the transcript. The second order is dated May 22, 1958, states reasons for granting the temporary injunction, and immediately above the signature of Judge Hall, appears the following paragraph:
“Entered this 26 day of May, 1958, in amendment and modification of judgment granting temporary injunction dated May 23, 1958.”
I note here that there is nothing at all in the record to indicate that any order was made on May 23rd. There can be no amendment of an order that does not exist.
Dr. Payton has perfected his appeal and brings forward seven points of error. By Point 1 he complains of the action of the trial court in granting the amended and modified temporary injunction dated May 26, 1958, without any notice to Dr. C. W. Payton and not in open court. It is not denied that the purported amended order was made and signed by Judge Hall in chambers at Marshall, Texas, and without any notice to Dr. Payton whatever.
Rule 317, Vernon’s Ann.T.R.C.P., prescribed the procedure to follow to amend or correct a judgment or decree. .The Rule reads as follows:
“Where in the record of any judgment or decree of a court, there shall be any omission or mistake, miscalculation or misrecital of a sum or sums of money, or of any name or names, if there is among the records of the cause any verdict or instrument of writing whereby such judgment or decree may be safely amended, it shall be corrected by the court, wherein such judgment or decree was rendered, or by the judge thereof in vacation, upon application of either party, according to the truth and justice of the case. The opposite party shall have reasonable notice of the application for such amendment.” (Emphasis added.)
The notice required in the above rule is mandatory. The word “shall” as used in the rule is used as a word of imperative obligation and inconsistent with any idea of discretion. Elmer v. Commissioner of Insurance, 304 Mass. 194, 23 N.E.2d 95; Baer v. Gore, 79 W.Va. 50, 90 S.E. 530, L.R.A. 1817B, 723; Steinbrunner v. Love, 113 Mont. 466, 129 P.2d 101; Seiner v. Powells Valley Hardware Co., 168 Tenn. 99, 75 S.W.2d 406; Moyer v. Kelley, Tex.Civ.App., 93 S.W.2d 502, wr. dis.
The quotation cited by the majority from 4 McDonald, Tex.Civ.Prac., 1420-1-2, Sec. 18.03 that “ * * * Notice to the parties and an opportunity to be heard upon the proposed action is not essential * * ” is in direct conflict with Rule 317, supra, and the authorities next above cited.
In the course of many conferences in the decision of this case, the power of the court to set aside, modify, or amend its judgment, order or decree before they become final, on its own motion, has been discussed at length and given considerable consideration. It is not contended that the courts do not have- such authority. Rule *738317, supra; 25 Tex.Jur. 520, Sec.T27, and authorities therein cited. But, the question here is: “Can such be done without any notice to the party adversely -affected?” The answer is “No !” Here, we have an original judgment that could not be enforced against appellant because it did not recite any reason for granting the injunction as required by Rule 683; yet, the amended judgment, (assuming that it was an amendment of the May 22nd judgment) recites reasons for granting the same and might be enforced. The so-called amended judgment being entered without any notice or the presence of appellant or his attorney, presents a serious question of whether or not “notice of appeal” from the amended judgment was actually given as recited therein. That fact is mentioned for the purpose of making this very pertinent observation: If a trial judge can amend such judgment by inserting therein the reasons for granting the same, he could just as legally omit the notice of appeal therefrom and the party adversely affected would be completely cut off from getting his case reviewed. The courts of this state will never tolerate such practice.
The amended judgment was signed before appellant or his attorney had any form of notice whatever of the entry of such amended judgment. Appellant was the adverse party, and was injured by having an invalid judgment made a valid judgment. Rules 316 and 317 both require notice to the party adversely affected. See also 25 Tex.Jur. 536, Sec. 142, which reads as follows:
“Sec. 142. Motion. The rule seems to be that a motion to amend or correct a judgment may be had in the trial court by any litigant. Indeed, power to make the record speak the truth being inherent, if a court is made aware that through mistake or omission the record does not recite the judgment actually rendered, it is not only the right but the duty of the court, of its own motion and After Due Notice, to order the proper entry. Or the correction may be made an application of any person interested, although such person was not a party to the suit.” (Emphasis added.)
It seems from logical reasoning that if a person is entitled to notice of an amendment so as to make the judgment recite the judgment actually rendered such person would be entitled to notice of an amendment to make a judgment recite the findings and reasons given for granting such temporary injunction at the time the judgment was actually rendered. There is not anything in this record that shows, or would indicate that the trial judge made the findings or gave the reasons recited in the amended judgment at the time it was pronounced and rendered. If the trial court did not announce such findings and reasons at the time of the pronouncement and rendition of judgment, then, such failure was a “judicial error” and could not be corrected on his -own motion. 25 Tex. Jur. 527-8, Sec. 133, and authorities therein cited; Hamilton v. Hamilton, Tex.Civ.App., 292 S.W.2d 674, no wr. hist.; 30 Am.Jur. 875, Sec. 109. The trial court is limited to the substitution of the judgment that should have been given on the facts found, and can not substitute new findings and new judgment. 49 C.J.S. Judgments § 243, p. 456; Jones v. Clover, 24 Cal.App.2d 210, 75 P.2d 517.
Appellees rely upon the case of O’Daniel v. Libal, Tex.Civ.App., 196 S.W.2d 211, 215, n. w. h., as a “white horse” case that they contend supports the action of the trial court in amending the judgment without notice. This was a temporary injunction suit and the original judgment did not recite the reasons for granting the same, but the amended judgment did. Although, the court held that there was only one reason alleged in the petition and some 20 witnesses testified on that issue, the appellant undoubtedly knew the reasons the injunction was granted without their being stated therein; yet, the court went on-to say “* * *• if we are in error *739in this respect, we are of the opinion that the court corrected such error, if any, when after proper notice and hearing, he entered the following order:” (Emphasis added.) Then follows an amended order, copied in the opinion of the court, that recites the reason for granting the same. And also recites that the original judgment “ * * * does not therein correctly refer to nor show the pronouncement of the Court in deciding the case as aforesaid * * * ” It will be noted there is no writ history on this case. The court cited no authority in support of its holding on the sufficiency of the original judgment and the holding has not been cited in support of any subsequent decision.
The reason for granting the temporary injunction having been pronounced at the time the judgment was rendered, the case is authority for the court to amend such judgment after proper notice and hearing. Point 1 should be sustained.
By Point 3, Dr. Payton complains of the action of the trial court in overruling his plea in abatement. The pendency of the suit by Dr. Payton in cause No. 30,102-B against the same parties and involving the identical subject-matter was fully proved. An" examination of the pleadings reveals that the two suits involve identical parties and subject-matter. Even though a suit by the Clinic was filed in the same court, it was presented to a different judge of a different court whose jurisdiction included Gregg County, I am unable to understand why' the suit was so filed and presented; there being no showing in the record why the petition for temporary restraining order was not presented to Judge Moore in the first place, or why the temporary restraining order when granted by Judge Hall was not made returnable to Judge Moore. Judge Moore had acquired jurisdiction over the parties and subject-matter and this jurisdiction cannot be defeated by merely presenting a matter to a visiting judge on exchange of benches.
The question has arisen in this Court relative to “consolidation of actions” filed in the same court. There could be some feasibility to the theory if the same judge was acting in both suits. But no party to litigation should be relegated to the discretion of two judges presiding in the same court at the same time over the same parties and the same subject-matter whose discretions may be totally repugnant to one another. One can easily visualize two such judges zealously guarding their respective actions in a case and each keeping an eye on the other like two mad Brahma bulls peeping at each other through a new plank gate.
With two judges acting, the cases must be treated as being filed in separate courts of the same jurisdiction. Whether the cases should be considered as being in separate courts, it is still necessary to pass on the question of whether or not the court erred in overruling appellant’s plea in abatement. One test, which is usually employed, is whether a final judgment or decree in the prior action would be conclusive between the parties and operate as a bar to the second action; or, in other words, whether a final judgment or decree in the prior action, pleaded in abatement, would support a plea of res judicata of the issues involved in the second action. 1 C.J.S. Abatement and Revival § 42b, p. 69. If appellant should prevail in his prior suit, it would be a complete bar to the relief sought by the appellees in the second suit and the court erred in overruling the plea in abatement. Bridges v. Consolidated Steel Corp. Ltd., Tex.Civ.App., 196 S.W.2d 552, wr. ref., n. r. e.
As a matter of law, the order of Judge Hall in the subsequent suit is void. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063; Conn v. Campbell, Tex.Com.App., 119 Tex. 82, 24 S.W.2d 813, opinion approved by the Supreme Court. See also Ex parte Lillard, Tex., 314 S.W.2d 800, and Benson v. Fulmore, Tex.Com.App., 269 S.W. 71, opinion approved by Supreme Court.
*740The fact that the same relief might be obtained by cross-action in a prior suit is, as a rule, no ground for abating a second action for such relief. This rule is applicable, however, only where the relief which a defendant may obtain by cross-action is not a part of the subject-matter of the prior suit but is independent thereof; and where the affirmative relief to which a defendant is entitled is a part and parcel of the cause of action, and the proof which would defeat plaintiff would entitle defendant to his affirmative relief, the latter must obtain it in the first suit and may not bring a separate suit therefor. 1 C.J.S. Abatement and Revival, § 43c, p. 74. Appellees’ action is a part and parcel of appellant’s suit. The evidence necessary to defeat appellant’s prior suit would entitle appellees to the relief they seek in their subsequent suit. Therefore, the plea in abatement should be sustained.
By Points 2, 4, 5 and 7, appellant complains of the action of the trial court in granting the temporary restraining order and the temporary injunction, and refusing to dissolve same. In view of the holdings of the Supreme Court of Texas in the cases of Cleveland v. Ward, supra, Benson v. Fulmore, supra, Conn v. Campbell, supra, and Ex parte Lillard, supra, the points should be sustained.
The temporary injunction granted by Judge Hall not only gave the appellees all the relief they seek on a final trial, it in effect disposes of all the issues raised in both suits. It is the well-established law of this state that a temporary injunction, either prohibitory, or mandatory, or in part prohibitory and in part mandatory will not issue when the temporary injunction grants all the relief prayed for on final hearing. The only relief asked by ap-pellees on final hearing is that the temporary injunction be made final; and, the judgment of the trial court and of the majority of this Court is in direct conflict with the following cases on this point: Morgan v. Smart, Tex.Civ.App., 88 S.W.2d 769, n. w. h.; Texas Co. v. Watkins, Tex.Civ.App., 82 S.W.2d 1079, n. w. h.; City of University Park v. Rahl, Tex.Civ.App., 36 S.W.2d 1075, wr. dis.; Cleere v. Wise, Tex.Civ.App., 153 S.W.2d 311, n. w. h.; Perrett v. Wegner, Tex.Civ.App., 139 S.W. 984, n. w. h.; Lewis Ice & Cold Storage Co. v. Gibbons, Tex.Civ.App., 40 S.W.2d 959, n. w. h.; Ort v. Bowden, Tex.Civ.App., 148 S.W. 1145, n. w. h.; City of Dallas v. Patti, Tex.CivApp., 286 S.W.2d 664, wr. ref., n. r. e.; Barton v. Tharp; Tex.Civ.App., 27 S.W.2d 885, n. w. h.; Welsh v. Carter, Tex.Civ.App., 30 S.W.2d 354, n. w. h.
Since there was a prior action pending and the judgment in this case conflicts with the prior action, the temporary injunction in this case is void 24-A Tex. Jur. 196, Sec. 116.
The judgment of the trial court should be reversed, the temporary injunction dissolved, and the cause abated and remanded to the trial court with instructions to retain it suspended upon the docket until cause No. 30,102-B is determined, and thereupon to proceed in accordance with the final result of that suit. Haney v. Temple Trust Co., Tex.Civ.App., 55 S.W.2d 891, wr. dism.; North Texas Coach Co. v. Morten, Tex.Civ.App., 92 S.W.2d 263, no wr. hist.