434 S.W.2d 697 | Tex. App. | 1968
United Gas Corporation was permitted to file its petition for writ of prohibition against the Honorable Jack Brookshire, Judge, 58th District Court of Jefferson County, Texas, from trying or entering judgment in Cause No. A-91120 on the docket of said court insofar as United Gas Corporation is concerned, but not as to any
On February 15, 1968, in the 60th District Court of Jefferson County, Texas, in its Cause No. B-85370, entitled United Gas Corporation vs. Roy John Morrell, United Gas Corporation recovered a judgment against Roy John Morrell. Roy John Morrell, through his attorneys, Houston Thompson and Gene Barrington, took steps to perfect an appeal to this court, but the Transcript of the proceedings in the 60th District Court was not timely filed in this court. Thereafter, United Gas Corporation moved this Court of Civil Appeals, pursuant to Rule 387 Texas Rules of Civil Procedure, to affirm such judgment of the trial court on certificate. On September 11, 1968, in No. 7031, in this court, the judgment of the trial court of February 15, 1968, in Cause No. B-85370, was affirmed on certificate, and in addition thereto, judgment was entered against Roy John Mor-rell and his sureties on his appeal bond. Thereafter, on September 11, 1968, Roy John Morrell, through his said attorneys, filed a suit in the 58th Judicial District Court of Jefferson County, Texas, complaining of United Gas Corporation and others. This law suit is styled Roy John Morrell v. United Gas Corporation, et al and is No. A-91120 on the docket of the said court. The subject matter of this law suit is identical to the subject matter of the law suit in which the first final judgment was rendered and affirmed on certificate by this Court of Civil Appeals.
We recognize that a plea of res judicata could be raised as a defense to the second suit by United Gas Corporation, but this is not an adequate remedy for United Gas Corporation, holding rights under this appellate court judgment as the filing of the second suit is an actual interference with enforcement of the judgment of this Court of Civil Appeals. The mere filing and prosecution of the second suit destroys the efficacy of the final judgment in the first suit. As said in City of Dallas v. Dixon, 365 S.W.2d 919, 923 (S.Ct.1963), we conceive it to be the duty, as well as the right, of this appellate court to exercise its original jurisdiction to enforce its judgment.
In view of the foregoing, it is the order, judgment, and decree of this court:
1. The Honorable Jack Brookshire, as the duly and legally elected and qualified Judge of the 58th District Court of Jefferson County, Texas, is prohibited from trying or entering judgment in suit No. A-91120 in the District Court of Jefferson County, Texas, 58th Judicial District, styled Roy John Morrell vs. United Gas Corporation, et al, insofar as United Gas Corporation is concerned, but not as to the cause of action asserted by said Morrell against Industrial Engineering Company or Bryant Manufacturing Company.
2. Roy John Morrell, a resident of Beaumont, Jefferson County, Texas, and his attorneys, Houston Thompson and Gene Barrington, residents of Hardin County, Texas, are enjoined from prosecuting said cause of action asserted in Cause No. A-91120 as against United Gas Corporation in the 58th District Court of Jefferson County, Texas, or elsewhere, but this injunction shall not apply as to any cause of action asserted by Roy John Morrell as against Bryant Manufacturing Company or Industrial Engineering Company.
Such writs will issue forthwith.
