*1 316, 319 (Tеx.Civ.App. —Beaumont dism’d); 1964, H. Dittlinger writ Colman v. Co., (Tex. Mills 181 S.W.2d Roller h.); Taylor w.
Civ.App. n. —Galveston Whitehead, (Tex.Civ.App. v. h.); Compton w. Worth n.
—Fort
Elliott, (Tex. Tex. opinion adopted); 60
Com.App.1935, secs. Venue 206 & 218.
Jur.2d very review of all the
After careful in this case we have concluded
evidence prove appellees have failed against appellants of action under allegations have
any of their failed prove resulting
allege any appellees failed to
Therefore establish appellants Gray- for venue as to
a basis County, Texas.
son
Accordingly, we reverse the court and herein render pleas
sustaining privilege We order venue as to the
pellants. only transferred to a District Court in
lants Texas, County, in accordance with
Dallas 89, T.R.C.P.
Reversed and rendered with instructions.
Dorоthy Harper MITCHELL, Individually Executrix, Appellant,
and as CARTER, Appellee. G.
Robert
No. 5651. of Civil
Waco.
Rehearing Dismissed Jan. *2 the
discharged attorney him as for estate. 13, 1974, (and August attorney after On disсharged), the other devisees Carter Carter, will, represented by attorney the Pasadena, Barfield, for Danny R. 25,680 in the District Court filed cause No. lant. proper- County partition Falls for Gorin, Waco, appеllee. Leonard L. for Estate, Harper partition for ty in the H. J. Har- properties in the Estate of Mrs. OPINION Dorоthy accounting, against for an per, and McDONALD, Chief Justice. Harper Mitchell. appeals summary Mitchell
Plaintiff Dorothy of such trial During the course judgment nothing against she take in suit a “Motion for Remov- Harper Mitchеll filed for defendant Carter Attorney on the of Record” al of interest, and violation conflict of grоunds of 25,828plaintiff No. In this case sued de- Responsibility Professional of the Code of fendant Carter and othеr devisees of the was filed to such Attorneys. Answer for 1) Harper, alleging: ofwill H. P. deceased motion; by overruled the heard and it was conspiracy defendants entered into a the in all cause Thereaftеr trial court. fraudulently Harper the distribute all 25,680 into No. entered attorney wrongfully Carter and stipulated and in the case matters involved attorney in fused to remove himself division, writing to a distri- open court in 25,680. estates bе- partition and of both bution plaintiff Thereafter nonsuited all devisee entered The trial court parties. tween the leaving appellee Carter as the defendants interlocutory judgment appоinted and only defendant. estate, partition the real Commissioners Carter answered that all mat- Defendant partition property, such real who did in fact litigat- controversy in this case ters judgment report, аnd final the file their judgment final in cause No. ed to the properties partitioned between partiеs. defendant moved for plaintiff Both
summary judgment. for Dorothy Harper Mitchell filed motion assigning as error the аction of new trial plaintiff’s court overruled mo- The trial refusing to remove attor- trial court in motion; tiоn; granted defendant’s and ren- attorney. The mo- ney plaintiff’s Carter as nothing. judgment plaintiff take dered taken; overruled; appeal tion was appeals points: on 2 Plaintiff 25,680 is in cause No. overruling court еrred in 1) The trial final. now summary judg- for plaintiff’s motion Harper Mitchell May Dorothy On ment. against attorney filed this cаuse Carter granting 2) The trial court erred will, in the H. J. the other devisees summary judg- for fendant’s motion as to all defеndants but as noted nonsuited finding genu- there was no ment attorney except Carter. any material fact. ine issue as to point complains 1st the trial Appellant’s Dorothy Harper Mitchell em- Plaintiff motion for еrred in her court attorney pro- defendant Carter to ployed sup- summary judgment. Such her as her father’s will which named bate affidavits, any, if are not before porting Executrix, and of which she was one of brought forward having not been court Attorney probated devisees. circumstances Under such appellant. Cоunty plaintiff in Falls demonstrate error. pellant cannot July Executrix on 1973. Af- appointed complains 2nd plaintiff point of the will became probate ter Carter, employed granting defendant’s court erred dissatisfied counsel, summary judgment. and on December for other summary Motion was filed Defendant’s in cause аsserted was res January 10, would filing Such present in the case. claims TRCP) timely (under still Rule 5 been sought plaintiff instant case dam- In the been later than if the motion had mailed no *3 ages grounds: and the on two January 1977. But such consрired other devisees 7, 1977, posited January the mail fraudulently the assets of the to distribute fact is reflected both the POST such Estate; 2) Carter should have removed MARK, the letter of transmittal accom- as in the casе. himself the motion. panying grounds judicially raised Both above 21c had appellant TRCP Under suit No. prior and overruled January reason days following to agreed The first such mo ably explain timely failure file distributing and the days expired January tion. Such the motion of second (since January 1977 fell on Satur attorney. The move Cаrter filed. day). explanation No appealed not from and ac- rehearing is is final. cordingly dismissed. Judiсata is the doctrine Res DISMISSED. fact, or right, question put in issue and competent aby juris court of determined litigаted be cannot further a sub
diction same
sequent suit between the Davis privies.
their v. First National Bank Waco, 467. The litigation
rule of Res Judicata bars connected with a cause of action оr
issues which, diligence, might
defense use of case, tried in a former as well as have been McCONATHY, Appellant, Richard T. Ogletrеe actually which were tried. those Crates, S.Ct., 363 431. And REAL DAL COMMERCIAL MAC judicata upon policy rest rules of res INC., al., ESTATE, Appellees. et protecting party being twice vexed cause, together same with that of 8410. economy in achieving judicial precluding a who has had a fair trial from reliti- party Court of Civil same Benson v. gating the issue. Wanda Texarkana. Co., S.Ct., 361.
Petroleum Thus, both rules of res Denied Rehearing Feb. estoppel bar claims. collateral points and contentions are overruled.
AFFIRMED.
ON REHEARING ren
Opinion 23, 1976. Mo case December
dered in this be was thus due to filed
tion for than 1977. Rule later
TRCP.