Opinion
No. 3335.
March 19, 1936. Rehearing Denied April 23, 1936.
Appeal from District Court, Bexar County; Harry L. Howard, Special Judge.
Suit by the Texas Pacific Coal Oil Company against the Santex Gas Oil Company and another, wherein C. L. Wetherell intervened. Judgment for the Santex Gas Oil Company, and the intervener appeals.
Affirmed.
This suit was brought by the Texas Pacific Coal Oil Company as a bill of interpleader against Santex Gas Oil Company, hereinafter called Santex Company, and J. E. Wetherell, to determine to whom the plaintiff should pay the amount due by it for gas purchased and produced from a certain gas well in Erath county. C. L. Wetherell, appellant, intervened, claiming the fund in controversy. J. E. Wetherell defaulted. Santex Company claimed the fund by virtue of a judgment rendered February 13, 1931, by the Thirty-Seventh district court of Bexar county in cause No. B55311, wherein said company was plaintiff and J. E. and C. L. Wetherell and others were defendants, which judgment vested in the Santex Company title to the lease upon which the well was situate. The intervener attacked the validity of said judgment against him, asserting it is void. To this attack the Santex Company replied by pleas of res judicata. There is no statement of facts, but the trial court filed its findings and conclusions upon which the judgment is based.
It, appears from the findings that on January 9, 1932, C. L. and J. E. Wetherell filed a suit against the appellee and others in the nature of a bill of review to set aside the judgment of February 13, 1931, attacking the judgment as void. In this suit a general demurrer of the Santex Company to the petition was sustained and the suit dismissed October 3, 1932.
On November 26, 1932, C. L. and J. E. Wetherell again filed suit against the Santex Company and others, seeking to have the judgment of February 13, 1931, set aside as void. The attack upon the validity of the judgment was based upon substantially the same grounds as in the suit filed January 9th, 1932. On January 6, 1933, judgment was rendered that the Wetherells take nothing. From this judgment the Wetherells appealed. Such judgment was later affirmed upon certificate by the Court of Civil Appeals. No written opinion filed. A writ of error was also sued out by the Wetherells which was dismissed by the Court of Civil Appeals. A writ of error to the Supreme Court was applied for and dismissed by the Supreme Court for want of jurisdiction. The attack in the present suit upon the validity of the judgment of February 13, 1931, is upon substantially the same grounds as in the suits filed January 9, 1932, and November 26, 1932. All judgments mentioned were by the Thirty-Seventh district court of Bexar county. Upon such findings the court concluded the judgments of October 3, 1932, and January 6, 1933, were res judicata of the present attack upon the validity of the judgment of February 13, 1931, and rendered judgment in favor of the Santex Company, from which C L. Wetherell appeals.
Bliss Daffan, of San Antonio (Don A. Bliss, of San Antonio, of counsel), for appellant.
John P. Pfeiffer, of San Antonio, for appellee.
The propositions submitted by appellant attack the validity of the judgment of February 13, 1931, rendered in cause No. B55311. For the reasons stated in such propositions, appellant asserts the judgment is void. In two separate subsequent suits appellant directly attacked the validity of the judgment. In such suits the court had jurisdiction of the parties and subject-matter. In each of such suits judgments were rendered sustaining the validity of the judgment, which judgments became final. It may be the judgments in the subsequent suits were erroneous, but that does not alter their conclusive effect upon the issue as to the validity of the judgment of February 13, 1931. They were res judicata of such issue.
The trial court properly held that the judgments of October 3, 1932, and January 6, 1933, were res judicata of the present suit attacking as absolutely void the judgment of February 13, 1931. Kendall v. Mather, 48 Tex. 585, 596; Bearden v. Texas Company (Tex.Civ.App.) 41 S.W.2d 447; Id. (Tex.Com.App.) 60 S.W.2d 1031.
Affirmed.