*736On Motion for Rehearing.
Appellee erroneously construes the opinion of this court, as is apparent from the flrs^ ground contained in his- motion for a rehearing, to wit:
“That this court erred in refusing to recognize exclusive jurisdiction in the Fourteenth District court, which had first acquired jurisdiction over the issues'and subject-matter as between Jake Tipps and Fulton National Truck Company.”
Therefore, in order to prevent such misconception of the effect of the language used in the original opinion, we -will amplify same to the extent of stating that the Fourteenth district court of Dallas county will retain and exercise exclusive jurisdiction over all matters involved in cause No. 40439 B/A, Fulton National Truck Co. v. Jake Tipps et al., presented by the plaintiff’s pleadings filed therein, as well as the amended answer and cross-action of appellee Tipps.
Both the original answer and cross-action and the amended answer and cross-action of appellee Tipps filed in said cause put in issue the first mortgage lien asserted by said appellee on the personal property “other than the trucks,” and seek judgment for $5,508, including the item of $3,250, and the foreclosure of the mortgage lien securing said sums, and this particular item as a first and prior lien, as is apparent from the prayer in ap-pellee Tipps’ original answer and cross-action, viz.:
“Defendant prays, in the alternative, in case the court should hold the contract made between the plaintiff and this defendant to be unenforceable, that he have judgment against plaintiff, Fulton National Truck Company, and C. W. Skinner, both jointly and severally, for the sum of $5,508, with interest since September 7, 1921, according to the notes against said Skinner, with attorney’s fees, together with a foreclosure of his mortgage lien on all the property on which he held a lien on September 7, 1921; that plaintiff be held to ‘a strict accounting of all properties and securities delivered to plaintiff by this defendant on September 7, 1921.”
The suit brought by appellant in the district court of Bexar county only involves an indebtedness asserted by appellant against C. W. Skinner and W. F. Hintze evidenced by certain notes executed by Skinner, as principal, and Hintze, as indorser, and the foreclosure of mortgage liens on the property described in the petition filed in said court.
The allegation in said petition that “defendant Jake Tipps is claiming and asserting to have a mortgage upon some of said stock and the alleged cotton and corn, and said Tipps is made a party hereto so that he may set up, if he will, such claim, if any, as he may have,” only involves the right on the part of the trial court to determine the priority of liens, to do which the court must ascertain whether or not more than one valid mortgage • lien exists upon such property, which includes the right to inquire into the facts necessary to show not only that such, lien in fact did exist, but, also, the question of notice, actual or constructive, of the execution of the mortgage on such property asserted as a prior lien.
Appellee Tipps, whether he should be ascertained to be the holder of the junior or senior lien, could not be required to litigate ibis rights as such lienholder in the suit pending in the district court of Bexar county, as the jurisdiction of that court can only be exercised in so far as appellee Tipps is concerned to determine the priority of liens. Tipps should be left to continue the prosecution of his cross-action filed in the suit pending in the district court of Dallas county. If the pleadings in the suit pending in the district court of Bexar county should be so amended as to attempt to litigate any of the issues involved in the suit in the district court of Dallas county, a plea of pendency of another suit between the same parties involving the same issues should be, and no doubt would be, sustained by the district court of Bexar county. We must assume >that the district court of Bexar county will Ibe governed by the established provisions iof the law and will render a judgment on the [facts and in consonance therewith; and we 'cannot be in the attitude of prejudging the ’conduct of that court to be in violation of any of the plain provisions of the law. To sustain appellee’s contention enjoining the proceedings authorized by the pleadings as the same now exist would be, in effect, to say to the district court of Bexar county, “We assume that you will not follow and be governed by the law; therefore will anticipate a wrongful judgment and so hedge you in by injunction that you cannot even have the opportunity to exercise with freedom your judicial functions” — and that, too, notwithstanding an appeal to an advisory court is provided for and may be prosecuted under the law' to correct any error that might be committed in the disposition of said cause.
The motion for a rehearing is therefore overruled.