LONG et al. v. MARTIN et al., 287 S.W. 494

CURETON, C. J. This action is an original one for mandamus. The application is made by H. A. Long, W. H. McCullough, Ed. McCullough, Tom L. McCullough and his wife, Kate O. McCullough, against M. E. Martin, Leslie Stegall, sheriff of McLennan county, Hon. Giles P. Tester, judge of the Seventy-Fourth district court of McLennan county, and certain other parties. . The facts and issues involved, in so far as may be necessary to an understanding thereof, may be found in the reported case of Long v. Martin, 285 S.

W. 1075, in an opinion rendered when the matters now presented were before this court on certified questions, and in the opinion of the Court of Civil Appeals granting the writ of prohibition of which complaint is made, reported in 260 S. W. 327. We have concluded that the motion for leave to file the .application for mandamus should be overruled. The Court of Civil Appeals at Amarillo plainly had the right to protect its judgment by writ of prohibition or injunction against the maintenance of the suit in-McLennan county by defendants, against whom it had previously rendered a judgment.

That court, in the opinion above referred to, correctly held that the judgment on which the execution complained of had issued was not dormant. See the cases cited in the opinion. The court likewise made a correct disposition of the issue that the petition in the original suit, and upon which the judgment was based, did not state a cause of action. That question had already been tried and determined adversely to the complaining parties. Long v. Martin (Tex. Civ. App.) 234 S. W. 96.

Besides, the rule that a valid judgment for a plaintiff is conclusive, not only as to defenses which were set up and adjudicated, but as to those which might have been raised inconsistent with the facts necessary to sustain the judgment, is one of universal acceptation. Cleveland v. Ward (Tex. Sup.) 285 S. W. 1063, 1070, and cases there cited. As to whether or not the writ of prohibition issued by the Court of Civil Appeals should have been made to run against the district judge of McLennan county as well as the parties plaintiff in the McLennan county action is a question unnecessary for us to decide.

The application for mandamus here complains that a levy has been made on certain shares of stock which it is alleged are the property of Mrs. Kate O. McCullough, who was not one of the judgment defendants, and that, therefore, she has the right to test the sufficiency of the levy and the ownership of the stock in the district court of McLennan county. The action brought in McLennan county was a general joint action, brought by the judgment defendants as well as by Mrs. McCullough, and had for its primary purpose an attack upon the validity of the original judgment.

The purpose of the mandamus is to require the district judge of McLennan county to “proceed to trial and judgment” in that identical cause. For reasons which we have previously stated, we cannot grant a writ of mandamus directing the district judge of McLennan county to proceed to try the cause described in the application. This, however, is wholly without prejudice to the right of Mrs.

McCullough, or any other stranger to the original judgment, to try in McLennan county, or any other county of appropriate jurisdiction and venue, questions as to the ownership of property which might be levied on under execution, or the sufficiency of the description of the property levied on. Nor did the writ of prohibition issued by the Court of Civil Appeals have any such purpose.

That court in its opinion expressly states: “Questions as to the ownership of property that might be levied on under execution issued on the judgment, the sufficiency of the description of the property levied on and of the advertisement thereof, are not matters determined by the judgment of this court and may be made the subject of question in appropriate proceedings in the trial courts.” The order directing the issuance of- the writ of prohibition by the Court of Civil Appeals is no broader than the declarations made in the opinion.

It declares that a writ of prohibition should issue “prohibiting the respondents aforesaid from instituting or further maintaining any suit the purpose of which is to attack the validity of the judgment of this court in the case of H. A. Long et al. v. M. E. Martin, No. 1762, or to enjoin its execution in due course of law.” It is obvious from the opinion and the decree of the Court of Civil Appeals that Mrs. Kate O. McCullough was not enjoined from filing and maintaining a proper suit, the purpose of which was to test the ownership of property levied on by execution and claimed by her.

However, in the application for mandamus, while the allegation is made that an, alias execution has issued, there is no allegation that any levy has been made thereunder upon the property of 'Mrs. Kate O. McCul-louch, or any other named stranger to the original judgment in controversy. The motion for leave to file the petition for mandamus is accordingly overruled. The refusal of permission to file the application for mandamus is without prejudice to the right of Mrs. Kate O.

McCullough, or any other stranger to the original judgment, to file a suit in McLennan county, or any other county of appropriate venue and jurisdiction, to test the ownership of property levied on under execution. The restraining order heretofore granted in this case is dissolved, and will no longer be of any force or effect. ©=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes