On Motion for Rehearing.
Appellees have filed an able brief and written argument in which they earnestly contend that we were in error in reversing and remanding this cause. Appellant has filed a reply brief and written argument thereto, showing marked ability and careful research on the part'of his attorneys.
After a careful examination of the motion and the briefs referred to, we have concluded that we were correct in reversing and remanding this case for the reasons stated in our original opinion herein. We think there are other reasons not mentioned in the opinion referred to why this cause should be reversed and remanded on the issue of limitation.
As stated in our original opinion herein, appellant, in cause No. 22555, sought to have the title to the shares of mill stock in the name of Amsler canceled and reissued to him, alleging that he was the owner thereof. He recovered judgment in that cause establishing his ownership. Thereafter he filed a petition for a mandatory injunction to compel the milling company to recognize him as a stockholder by issuing the Amsler stock to him, alleging that, notwithstanding the judgment in his favor, the company had refused so to do; and, as incidental thereto, he alleged that they were paying dividends to Amsler.
At the time the petition for the injunction was filed, there had been no appeal from the judgment in cause No. 22555, but soon thereafter the defendant Amsler sued out a writ of error to this court, and gave a supersedeas bond. There was a motion to dissolve the temporary injunction, which was heard on July 14,1917. Final action in that cause was postponed pending the appeal in No. 22555. By the judgment of this court, the judgment of the trial court, in favor of appellant, was affirmed in that cause. The mandate in that cause was not filed in the court below until January 19,1920. This suit was filed February 24,1920.
We hold that the statute of limitation was suspended during the appeal referred to, for the reason that, if appellant knew that the milling company was paying divi-*249(lends to Amsler, and had filed suit against the company and against Amsler to recover the same, the company could and doubtless would have replied that the issue 'involved in such suit was the ownership of the stock claimed by both Amsler and Cavitt; that Cavitt could not recover dividends until he established his title to the stock; and that this was the issue pending in the case on appeal.
“Where a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right.” 25 Cyc. 1278; Melds v. Austin (Tex. Civ. App.) 30 S. W. 386; Pease v. Southerlin (Tex. Civ. App.) 228 S. W. 269; Hutchinson v. Hutchinson, 92 Kan. 518, 141 Pac. 589, 52 L. R. A. (N. S.) 1165; 25 Cyc. 1173.
There is also a still stronger reason why the statute of limitation did not run against appellant after July 14, 1917, at which time the limitation was not completed against him. On July 14, 1917, cause No. 23679 was heard on the motion to dissolve the temporary injunction, and the following decree was entered therein:
“All parties are enjoined from transferring, incumbering, or otherwise disposing of the stock of the McGregor Mill & Grain Company, and the McGregor Mill & Grain Company is enjoined from paying dividends on said stock until final hearing of the cause upon the merits.”
A final hearing in said cause was had February 23, 1920. Such being the ease, had appellant filed suit at an earlier date to recover the dividends paid to Amsler, the milling company could and doubtless would have replied that they were not permitted to pay suc-h dividends until final adjudication in cause No. 23679. Williams v. Pouns, 48 Tex. 141.
For the reasons stated, the motion for rehearing herein is overruled.
Motion overruled.