Opinion
No. 4970.
July 24, 1930.
Motion by Hunter T. Farrell for permission to file an original application for writ of prohibition to prohibit the Honorable Towne Young, District Judge, and others, from trial of a certain cause.
Motion denied.
See also 23 S.W.2d 468.
Wm. Cramer, of Dallas, for appellant.
Leake, Henry, Wozencraft Frank, of Dallas, for appellee.
As grounds for a writ of prohibition, it is set up in the present motion to the effect that after adverse termination and a binding and final judgment on appeal in the case in the district court of Dallas county of Galbreath et al. v. Farrell (Tex.Civ.App.) 249 S.W. 277, and in the case in the district court of Collin County of Galbreath et al. v. Farrel (Tex.Civ.App.) 275 S.W. 238, the same parties have again filed suit in the district court of Dallas county, seeking in the proceeding to retry or relitigate the same matters as presented in the cases mentioned. It is concluded that the present motion should be denied, since the alleged proceedings now pending in no wise obstruct or interfere with the due enforcement of the judgment rendered by this court in appeal of Galbreath et al. v. Farrell, 275 S.W. 238. In that case it was determined by this court merely that the doctrine of res adjudicata was applicable to the cause of action pleaded in the proceedings filed in the district court of Collin county. The decision reached no further than that the judgment of the district court of Dallas county in the cause in 249 S.W. 277 worked an estoppel against another litigation upon the same cause of action in Collin county. That ruling had the legal effect to constitute, not the judgment of the district court of Collin county or of this Court of Appeals, but the original judgment of the Dallas county district court as sustained on appeal by the Court of Civil Appeals at Dallas, the final judgment under which the rights of the parties were secured and to be performed. Therefore the judgment rendered by the district court of Dallas county as sustained on appeal by the Court of Appeals at Dallas would be the binding and final judgment to be protected, if at all, by a writ of prohibition upon the grounds here sought.
The Court of Appeals at Dallas, in Farrell v. Young, District Judge, 23 S.W.2d 468, determined, not that this Court of Appeals was the proper court to grant a writ of prohibition upon the grounds alleged in the present proceedings, but that, in effect, the writ of prohibition should be denied because, in view of all the pleadings, it did not conclusively appear that the plea of res adjudicata was certainly good.
Motion denied.