
    GOHLMAN et al. v. WHITTLE et al.
    (No. 4065.)
    (Supreme Court of Texas.
    June 10, 1925.)
    1. Venue <&wkey;l7 — Filing of cross-action, only in event defendant’s exception and pleas to jurisdiction overruled, not waiver of right to complain of ruling.
    Where defendant urged its cross-action only in event court overruled its exception and pleas to jurisdiction, defendant did not thereby waive right to complain of ruling refusing to sustain exception and pleas.
    2. Courts <&wkey;486(2) — Suit cannot lie in district court to enjoin execution of judgment of another district court.
    Where, in suit against husband and wife, latter consented that court proceed with its adjudication as against husband, and did not appeal from judgment against husband, held that, under Rev. St. art. 1830, subd. 17, and article 4653, wife could not, by suit in another district court, seek to enjoin execution of such judgment.
    Eerror to Court of Civil Appeals of the Seventh Supreme Judicial District.
    Action by Ada T. Whittle and husband against S. L. Gohlman and others to restrain sale of certain land and remove cloud on title. From a judgment of the Court of Civil Appeals, affirming judgment restraining sale of land and removing cloud, -defendants bring error.
    Reversed and remanded.
    See, also, 273 S. W. 808.
    James M. Whatley, of Paducah, and Cole & Cole, of Houston, for plaintiffs in error.
    Marshall & Perkins, of Quanah, for defendants in error.
   GREENWOOD, J.

This was an action by defendant in error Ada T. Whittle joined by her husband, J. W. Whittle, against plaintiffs in error S. D. Gohlman and J. E. Lester,' doing business as partners under the name of Gohlman, Lester & Co., and against the clerk of the district court of the Eleventh judicial district of Texas, to restrain the sale of six tracts of land, in Hardeman county! belonging to the separate estate 'of Ada T. Whittle, under a decree of foreclosure of an attachment lien in favor of plaintiffs in error against J. W. Whittle alone, and to remove the cloud cast and to be cast on Ada T. Whittle’s title by the attachment proceedings and sale thereunder.

The petition alleged ownership of the tracts by Mrs. Whittle in her own separate right for years prior to the levy of.the attachment and since; the issuance of an attachment by the district court of Harris county in the Eleventh judicial district in a suit wherein S. L. Gohlman and J. E. Lester were plaintiffs and J. W. Whittle was defendant; and the levy on December 21,1920, of the attachment on said tracts as the property of J. W. Whittle; and rendition of judgment in said cause foreclosing the attachment lien, under which an order of sale will be issued and the tracts sold, unless restrained.

The judge of the district court of Harde-man county, .in the Forty-Sixth judicial district of Texas, ordered the clerk of that court to issue the injunction prayed for, returnable to the district court of Hardeman county.

By exception, plaintiffs in error attacked the jurisdiction of the district court of Harde-man county on the ground that under the averments of Mrs. Whittle’s petition the injunction was returnable to and triable by the district court of Harris county in the Eleventh judicial district. Plaintiffs in error also sought by special plea to have Mrs. Whittle’s suit either abated or transferred to the district court of Harris county in the Eleventh judicial district on the ground that Mrs. Whittle was a party to the suit pending in that court, and that all issues herein tendered must be tried and determined in that suit and court.

Without waiving their exceptions and pleas, but only in the event they were overruled, plaintiffs in error filed an answer and cross-action to establish an equitable lien in their behalf for the sum of $5,317.26 on-the tracts of land described in Mrs. Whittle’s petition.

The district court of Hardeman county overruled plaintiffs in error’s exception and special pleas, and made findings of fact which sustain the allegations of defendants in error’s petition.

The uncontradicted evidence showed that Mrs. Whittle, as well as J. W. Whittle, was a party defendant to the suit brought by plaintiffs in error Gohlman, Lester & Go. in the district court of Harris county in the Eleventh judicial district; she having obtained judgment that plaintiffs in error take nothing on their alleged causes of action seeking a personal judgment against her. The judgment of the Harris county district court recited:

“The plaintiffs in open court announced that they .would abandon in this action and by erasure seek to eliminate from their pleadings any cause of action asserted against the defendant Ada T. Whittle involving the title to the lands attached in Hardeman county, Tex., and, in so far as their pleadings raise such issues as to such title, or as to the cancellation of any deeds to her from her codefendant, J. W. Whittle, would dismiss any such cause of action without prejudice. Thereupon the defendant Mrs. Ada T. Whittle, through her attorneys, likewise announced in open court that they would abandon any of their pleadings and seek by erasure and cancellation, as far as possible, by mutual consent, to eliminate any of her pleadings responsive to any such issues tendered by the plaintiffs herein:
“It is therefore ordered, adjudged, and decreed by the court that any cause of action asserted herein by the plaintiffs against the defendant Ada T. Whittle, looking to a trial of the question of title or ownership of the lands in Hardeman County, Tex., as between herself and her husband and codefendant, J. W. Whittle, and any assertions or allegations in defendant Ada T. Whittle’s pleadings, tendering-any such issue or asking any relief based thereon, be and the same are hereby in all things dismissed out of this case, without prejudice to the- rights of either of the parties in connection therewith.”

The district court of Hardeman county rendered judgment, making the temporary injunction permanent, whereby plaintiffs in error were restrained from causing t-he tracts of land to be sold under the decree of foreclosure rendered by the district court of Harris county. The district court of Hardeman county further canceled the attachment proceedings and removed the cloud cast thereby on Mrs. Whittle’s title. The court of Civil Appeals at Amarillo affirmed the judgment of the district court of Hardeman county.

The cross-action having been urged only in the event the district court of Hardeman county overruled plaintiffs in error’s exception and pleas to its jurisdiction, there was no waiver to preclude complaint of the ruling refusing to sustain the exception and pleas. Hickman v. Swain, 106 Tex. 431, 167 S. W. 209.

The exception and pleas invoke subdivision 17 of article 1830, and article 4653 of the Revised Statutes of 1911.

Subdivision 17 of article 1830 provides the following exception to the prohibition against an inhabitant of this state being sued out of the county of his domicile, viz.:

“When the suit is brought to enjoin the execution of a judgment or to stay proceedings in any suit, in which case the suit shall be brought in the county in which such judgment was rendered or in which such suit is pending.”

Article 4653 provides:

“Writs of injunction granted to stay proceedings in a suit, or execution on a judgment, shall be* returnable to and tried in the court where such suit is pending, or such judgment was rendered.”

The whole purpose and the necessary result of the successful prosecution of this suit by defendants in error— whether they were granted relief by injunction or cancellation of the attachment lien and foreclosure — was to stay proceedings ordered by the district court of Harris county and to enjoin the execution of that court’s judgment. The Harris county district court had adjudged in a suit wherein it had jurisdiction over both subject-matter and parties that the title of J. W. Whittle in and to certain tracts of land be sold in satisfaction of a debt to plaintiffs in error. The instant suit asserts that Mrs. Whittle has the right to vacate that decree of sale to which she was a party, and 40 restrain its execution. Eliminate Mrs. Whittle’s attack on the precise thing ordered done by the Harris county district court, and nothing remains of her suit. It thus appears that Mrs. Whittle invokes the power of another court of co-ordinate jurisdiction to correct and reform the judgment of the district court of Harris county. It was to avoid and prevent conflicts between courts of equal authority that subdivision 17 of article 1830 and article 4653 were enacted. As well stated by the Galveston Court of Civil Appeals through Justice Pleasants:

“It is necessary for the due and orderly administration of justice that the rule of comity which forbids one court from interfering with the execution of the judgments of another should be strictly enforced. Any other rule would lead to unseemly and disorderly conflict between the courts, and be productive of interminable confusion, and of results disastrous to the administration of justice.” Adoue v. Wettermark, 22 Tex. Civ. App. 545, 55 S. W. 514.

The court announced in Seligson v. Collins, 64 Tex. 314 to 316, that, while an action might be brought to stop an execution sale of property, without necessarily involving interference with the enforcement of the judgment on which the execution issued, and hence such a suit might be without the terms of what is now article 4653, yet a suit seeking to prevent the sale of specific property decreed to be sold to satisfy a judgment and attacking the decree of sale was such a suit as was imperatively placed beyond the jurisdiction of a co-ordinate court. The distinction was drawn in Perrin v. Stevens (Tex. Civ. App.) 29 S. W. 927, where the court said:

“This injunction did not restrain the sale of property under execution simply, but it restrained the sale of property which the judgment ordered sold, and to that extent enjoined the judgment.”

In Matthews v. Eyres, 206 S. W 963, 964, the Austin Court of Civil Appeals, in an opinion of Chief Justice Key, rightly construed article 4653 in declarihg:

“It may be true, as contended by counsel for appellee, that the property in question was the separate property of Mrs. Beasley, who did not sign the mortgage; and that before the foreclosure suit was brought in Houston county ap-pellee purchased it from Mrs. Beasley, and acquired full title thereto; and, if such be the case, he is entitled to protection whenever he invokes the jurisdiction of the proper court to grant such protection. * But the fact remains that the relief sought and obtained in the court below, not only stayed and suspended the process issued by the county court of Houston county, but the effect of the judgment is to nullify that portion of the judgment rendered by that court which established and foreclosed a lien upon the property. Such being the result, the ease comes clearly within the purview of the statute quoted; and therefore the pre-Iiminary injunction should have been returned to that-court; and, as the statute quoted is mandatory, the county court of Travis county had no jurisdiction to litigate the rights of the parties. Nor is it material that appellee was not a party to the litigation which resulted in the judgment of the county court of Houston county. The statute quoted is not limited to injunctions granted at the instance of a party to the judgment, and applies to every one who seeks by injunction to stay proceedings in a suit, or the execution of a judgment.”

The cases, such as Van Ratcliff v. Call, 72 Tex. 493, and Leachman v. Capps, 89 Tex. 691, 36 S. W. 250, which recognize the right of a stranger to a judgment to restrain under certain circumstances the sale under execution on the judgment of property not subject to the execution, have no application to this controversy.

The opinion in Van Ratcliff v. Call, 72 Tex. 493, 10 S. W. 578, clearly differentiates that case and others following it from this case when it says:

“There can be no doubt that where the execution of the judgment generally is sought to be prevented, or where the writ is granted to stay, that is to stop, the execution of a judgment, the statute is imperative and is susceptible of but one construction — that is, that the writ shall be returned or the suit brought in the county where the judgment was rendered.
“But the law requiring a suit to ‘enjoin the execution of a judgment to be brought in the county of its-renditibn’ evidently applies to suits attacking the judgment, questioning its validity, or presenting defenses properly connected with the suit in which it was rendered and which should have been adjudicated therein. It has no application to parties who do not sue to stay or enjoin the execution primarily of the judgment as contemplated by the statute, blit who sue to prevent the sale of property alleged to belong to them under a judgment, however valid and.regular it may be, to which they are not parties and for the satisfaction of which their property could in no event be subject.”

This is a stronger case for the operation of the statutes than either of the eases cited wherein they were enforced. If Mrs. Whittle’s allegations of ownership of the six tracts of land are true, as found by the district court, she had an opportunity to obtain all the relief to which she might show herself entitled in the Harris county district court. She elected to consent for that court to proceed with its adjudication as between j. W. Whittle and plaintiffs in error, and she neither appealed from .that adjudication nox did she cross-assign error on the appeal which was prosecuted by plaintiffs in error. Any reserved right of Mrs. Whittle to attack the decree of foreclosure against J. W. Whittle was subject to the mandatory terms of the statutes forbidding resort to any other district-court than that of Harris county in the Eleventh judicial district.

It is ordered that the judgments of the district court and of the Court of Civil Appeals be reversed, and that this case be remanded to the district court of Harris county in the Eleventh judicial district of Texas. 
      <&wkey;>For other oases see same tonic and KEY-NUMBER. in all Key-Numbered Digests and Indexes
     