
    LONG et al. v. MARTIN et al.
    (No. 4260.)
    (Supreme Court of Texas.
    June 9, 1926.)
    1. Courts <@=>247 (5).
    As respects jurisdiction of Supreme Court to answer questions certified by Courts of Civil Appeals, application for mandamus to Court of Civil Appeals, invoking its original jurisdiction, as provided in Bev. St. 1925, art. 1824, is an original one as distinguished from cases on appeal.
    2. Courts &wkey;>247(l).
    Supreme Court cannot exercise appellate jurisdiction over original actions in Court of Civil Appeals.
    3. Courts i&wkey;247(5) — Supreme Court has no jurisdiction to answer certified questions from Court of Civil Appeals, where ease pending before it was an original application for mandamus over which Supreme Court had no appellate jurisdiction (Rev. St. 1925, arts. 1824, 1851, 1852; Const, art. 5, § 3).
    Since Supreme Court, in passing on certified questions from Court of Civil Apeáis, exercises an appellate jurisdiction,' held that it was without jurisdiction to answer certified questions from Court of Civil Appeals, in view of Bev. St. 1925, arts. 1824, 1851, and Const, art. 5, § 3, when construed in light of Bev. St. 19'25, art. 1852, where case pending before it was an original application for mandamus over which Supreme 'Court has no appellate jurisdiction.
    4. Courts <&wkey;48l — Court of Civil Appeals cannot annul writ of prohibition issued by another Court of Civil Appeals.
    Court of Civil Appeals cannot declare void or annul a writ of prohibition issued' by Court of Civil Appeals of another jurisdiction, which court is of co-ordinate power to enforce its own jurisdiction and protect integrity of its own judgment.
    5. Mandamus <&wkey;3l — Court of Civil Appeals can direct district judge to proceed to judgment except when it would annul an order made by another Court of Civil Appeals (Vernon’s Ann. Civ. St. 1925, arts. 1823, 1824).
    Court of Civil Appeals can, under Vernon’s Ann. Civ. St. 1925, arts. 1823, 1824, direct a district judge to proceed to judgment and issue necessary writs to protect him in its exercise, except when it would necessarily have effect to vacate an order made by another Court of Civil Appeals.
    6. Courts i&wkey;472(2) — When issuance of mandamus by Court of Civil Appeals involves conflict of two appellate jurisdictions, application must be made to Supreme Court.
    When issuance of mandamus by a Court of Civil Appeals does necessarily involve a nullification or suspension of orders of another appellate court, and hence a conflict of two appellate jurisdictions, application must be made to Supreme Court, which has no territorial limits except boundaries of the state.
    
      Certified Questions from Court of Civil Appeals of Tenth Supreme Judicial District.
    Application for mandamus by H. A. Dong and others in the Court of Civil Appeals against M. E. Martin and others. On certified questions.
    Certificate dismissed.
    See, also, 260 S. W. 327; 114 Tex. 581, 278 S. W. 1115.
    W. E. Spell and W_. L. Eason, both of Waco, for relators.
    Phillips, Townsend & Phillips, of Dallas, and Fitzgerald & Hatchett, of Wichita Falls, for respondents.
   CURETON, C. J.

This case is.before us on certified questions from the Court of Civil Appeals for the Tenth District.

On a preliminary examination of the certificate, for the purpose of determining whether or not it was in proper form, and whether or not we had jurisdiction of the questions, we have concluded that we have no jurisdiction, and must dismiss the certificate.

On February 28, 1920, M. E. Martin recovered judgment in the district court of Wichita county against H. A. Long and W. H. McCullough for $14,000, with interest and costs. Long appealed to the Court of Civil Appeals for the Second' District, and the case was transferred to the Court of Civil Appeals for the Seventh District. That court affirmed the judgment of the trial court. For a statement of the issues and judgment rendered, we refer to the report of the case in 234 S. W. 91.

T. L. McCullough and Ed McCullough were sureties on the supersedeas bond of H. A. Long and W. H. McCullough on the appeal of that case, and judgment was rendered against them as such by the Court of Civil Appeals. Long and McCullough, the principals in the judgment, attempted to remove the cause from the Court of Civil Appeals to the Supreme Court, but the petition for writ of error was dismissed for want of jurisdiction by this court on January 31,1923. 112. Tex. 365, 247 S. W. 827.

On December 20, 1923, execution issued to McLennan county on the judgment. The sheriff levied upon certain property as the property of the defendants. At this stage of the proceeding H. A. Long, W. H. McCullough, Ed McCullough, Tom L. McCullough, and his wife, Kate O. McCullough, filed suit in the district court of McLennan county against M. E. Martin, C. C. Shumway, W. Fitzgerald, J. B. Hatchett, and Leslie Ste-gall, the sheriff of McLennan county.

The purpose of the suit was the cancellation of the judgment above described and in-junctive relief against its enforcement. The prayer was for a temporary writ of injunction enjoining and restraining the defendants, and each of them, their agents, employees, and attorneys, “from causing execution or other process to issue on said judgment, and from placing execution in the hands of any officer for enforcement, and from causing a levy to be made on plaintiffs’ property, and from selling said bank stock or other property, and that, on final trial hereof said temporary injunction be made permanent, and that plaintiffs have judgment canceling and holding for naught said judgment and said abstract of judgment, and for other and further relief,” etc.

In view of our disposition of the certificate before us, a statement of the grounds for the relief asked is unnecessary.

Upon the presentation of this petition on January 30, 1924, to the Honorable H. M. Richie, judge of the Seventy-Fourth district of McLennan county, a temporary restraining order as prayed for was granted/

On the 5th of March, 1924, the Court of Civil Appeals for the Seventh District, which affirmed the judgment of the trial court as heretofore stated, upon notice and hearing granted a writ of prohibition restraining the plaintiffs named in the McLennan county suit, and their attorneys and Judge Richie, from making any orders that in any way restrained the collection of the original judgment in favor of Martin. The opinion of the Court of Civil Appeals granting this writ of prohibition is reported in 260 S. W. 327.

From this action Long et al. applied for a writ of error, but this court dismissed the application, for the reason that we had no jurisdiction to review by writ of error judgments of Courts of Civil Appeals in granting original writs of prohibition. See the case of City of Houston v. City of Palestine, 114 Tex. 306, 267 S. W. 663.

After the issuance of the writ of prohibition, Judge Richie declined to proceed further with the trial of the case filed in his court.

On July 9, 1924, H. A. Long and the McCul-loughs filed an original application for mandamus in the Court of Civil Appeals for the Tenth District, at Waco, to require Judge H. M. Richie to proceed with the trial of the case filed in his court. Martin, Shumway, Fitzgerald, and Hatchett were made parties to this applicátion for mandamus. The petition and supplemental petition for mandamus set out at great length the history of the litigation. Judge Richie’s' answer shows that the only reason why he did not proceed with the trial of the case filed in his court was the writ of prohibition restraining him as judge of the Seventy-Fourth judicial district “from further maintaining and proceeding with this cause and doing any act the purpose of which was to attack the validity of the judgment of the Court of Civil Appeals in the case of H. A. Long et al. v. M. E. Martin, No. 1762, or the purpose of which would be to enjoin the execution of said judgment, and this respondent construed the suit filed by relators in his court to be an attack upon the validity of said judgment in an effort to enjoin the execution of said judgment, and for said reason your respondent felt that to proceed to try the judgment in said cause would be a judicial act contrary to the court’s decree and order aforesaid.”

The answer of the respondents Martin et al. alleges that Judge Richie properly refused to try the McLennan county case, because to do so would be in contempt of the Court of Civil Appeals for the Seventh District. They also answered that a writ of mandamus will not lie in this case, for the reason that the judgment of the Court of Civil Appeals for the Seventh District, restraining the relators and their counsel and Judge Richie from proceeding to trial and judgment in the McLen-nan county case, constitutes a final judgment and decree binding upon the Court of Civil Appeals at Waco, being “a court of co-ordinate jurisdiction.”

Upon this record the Court of Civil Appeals for the Tenth District at Waco certifies to us nine questions.

In view of the length of the questions certified and the disposition which we must make of the certificate, we will state the substance and effect of the questions, rather than copy same.

The first three questions relate to the jurisdiction of the district court of McLennan county; that is, whether or not the petition for injunction filed by the relators in the district court of McLennan county was sufficient to invoke the jurisdiction of that court and to authorize it to restrain respondents from enforcing the judgment of the district court of Wichita county and the decree of the Court of Civil Appeals for the Seventh District, affirming that judgment.

The fourth, fifth, and seventh questions relate to the jurisdiction of the Court of Civil Appeals for the Seventh District; the inquiry being in effect whether or not that court upon an application, for a writ of prohibition had jurisdiction and power to prohibit the district court of McLennan county from trying and determining the case which the relators had filed there, and in doing so to adjudicate the questions as to the validity and dormancy of the judgment rendered by the district court of Wichita county and affirmed by the Court of Civil Appeals of the Seventh District, and upon which the execution enjoined by Judge Richie was issued.

The sixth and eighth questions relate to the dormancy and validity of the judgment of the district court of Wichita county, heretofore described, and the decree of the Court of Civil Appeals affirming that judgment.

The ninth question reads as follows;

“Should the writ of mandamus prayed for by relators be issued by this court, and, if so, what limitations or restrictions, if any, should be imposed?”

We are constrained to dismiss the certified questions for two reasons: (1) Because we have no jurisdiction by certified question of the issues involved; and (2) because the Court of Civil Appeals has no jurisdiction of the mandamus cause as there filed, and therefore nothing to certify.

The authority of Courts of Civil Appeals to certify questions to this court, where no conflict is stated, and the jurisdiction of this court to answer them, is derived from the Constitution, art. 5, § 3, and from the Revised Statutes 1925, art. 1851. This article reads as follows:

“Whenever there shall arise an issue of law which a Court of Civil Appeals should deem advisable to present to the Supreme Court for adjudication, the presiding judge shall certify the question to be decided by the Supreme Court. Pending the decision of the Supreme Court, the cause in which the issue is raised shall be retained for judgment in harmony with' the decision of the Supreme Court upon the issue submitted.”

The action pending in the Court of Civil Appeals made the basis of the certificate in this case is an application for mandamus in which the jurisdiction of that court is invoked, not by virtue of its appellate power, but of its original jurisdiction as provided for in Revised Statutes 1925, art. 1824. It is well settled that this type of action is an original one,' as distinguished from eases on appeal. Schintz v. Morris, 89 Tex. 648, 35 S. W. 1041; Harby v. Patterson (Tex. Civ. App.) 59 S. W. 63; Anderson v. Ashe, 62 Tex. Civ. App. 262, 130 S. W. 1044, 1047; 18 Ruling Case Law, p. 95, § 9, page 97, § 10, page 295, § 229.

We have heretofore determined that this court cannot exercise appellate jurisdiction over original actions in Courts of Civil Appeals. City of Houston v. City of Palestine, 114 Tex. 306, 267 S. W. 663. The only question therefore necessary to now determine is whether or not, in answering certified questions under the above statute, the Supreme Court must exercise appellate jurisdiction. This question is answered in the affirmative by the case of Schintz v. Morris, just cited. It is true in that case the certificate was one of dissent, presented under what is now Revised Statutes 1925, art. 1852, but the principle involved applies to. and controls the present case.

The statute authorizing certificates of dissent, under construction in that case, was passed at the same time and as part of the same act of the Legislature which authorized the presentation of certified questions to this court. Acts of the First Called Session of the Twenty-Second Legislature, pp. 25 and 31. The language of the two sections as originally enacted, and at the present time does not differ in any such material respect as would authorize a difference in construction as to their meaning wth reference to the type of cases in which certificates may be made to the Supreme Court, and the conclusion that, in answering certificates of dissent, the Supreme Court must esercise its appellate jurisdiction, requires the same construction as to the power esercised in answering certified questions under the statute previously quoted.

Aside from what has just been said on this immediate question, it is very plain that, in passing upon the questions certified from the Court of Civil Appeals, we are called upon to esercise appellate power. The Constitution, art. 5, § 8, authorizes this court to esercise only two classes of jurisdiction. The first is appellate jurisdiction, the right to exercise which is expressly confined by the Constitution to those cases over which the Courts of Civil Appeals exercise appellate power. The second is original jurisdiction, under which we are authorized to issue original writs of mandamus, etc., otherwise than in aid of our appellate power. It is obvious that, in answering the. certified questions presented to us in this case, we would not be exercising original jurisdiction, for the reason that the case is not one originally filed here. Therefore it must follow, since we exercise but two classes of jurisdiction, one original and one appellate, that the power we are ashed to exercise here is purely appellate in character.

From what we have said, it is plain that we have no jurisdiction to answer certified questions from a Court of Civil Appeals, where the case pending before it is an original one, and therefore over which we have no appelate jurisdiction. Schintz v. Morris, 89 Tex. 648, 35 S. W. 1041; Harby v. Patterson (Tex. Civ. App.) 59 S. W. 63.

An analysis of the questions certified shows that the Court of Civil Appeals a( Waco, presenting the certificate, is called upon to determine the very questions determined on the application for prohibition by the Court of Civil Appeals at Amarillo, and that any effective order will necessitate a vacation and annulment of the writ of prohibition issued by the Court of Civil Appeals at Amarillo. It is plain, we think, that the Court of Civil Appeals at Waco has no authority to declare void or to annul or vacate a writ of prohibition issued by the Court of Civil Appeals at Amarillo, a court of co-ordinate power, to enforce its own jurisdiction and protect the integrity of its own judgment. Cleveland v. Ward (Tex. Sup.) 285 S. W. 1063, this day decided, but not yet officially reported, and authorities there cited.

If it be said that the writ of prohibition issued by the Court of Civil Appeals at Amarillo is void (and as to this we express no opinion), still the fact remains that the Court of Civil Appeals at Waco cannot declare it void and make that declaration effective. The Court of Civil Appeals at Amarillo has by its issuance declared exactly to the contrary, and has the same power to make this judgment in that respect effective as has the Court of Civil Appeals at Waco.

The Court of Civil Appeals at Waco of course has statutory power to direct a district judge to proceed to judgment, and authority to issue the necessary writs to protect him in its exercise. Vernon’s Anno. Texas Statutes 1925, arts. 1824, 1823; Cleveland v. Ward, supra. But that court is without authority to do so in a proceeding of this character when the effective exercise of the power would necessarily have the effect to set aside, annul, or vacate an order made by another Court of Civil Appeals. Cleveland v. Ward, supra. When the issuance of a mandamus does necessarily involve a nullification or suspension of the orders of another appellate court, and therefore a conflict of two appellate jurisdictions, the application must be made to this court, which has no territorial limits except the boundaries of the state. Cleveland v. Ward, supra.

It is obvious therefore, we think, that the Court of Civil Appeals at Waco is without jurisdiction to order the mandamus applied for. That court being without jurisdiction of the ease pending before it, we of course have no jurisdiction over the certified questions based upon that case.

For the two reasons previously stated, the certificate is dismissed. 
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