
    HINN v. GALLAGHER et al.
    (No. 6397.)
    (Supreme Court of Texas.
    Jan. 7, 1925.)
    1. Appeal and error <&wkey;>84(l) — Judgment of Court of Civil Appeals denying plea of privilege not reviewable by Supreme Court.
    Under Rev. St. art. 1591, subd. 6, judgment of Court of Civil Appeals affirming denial of plea of privilege is final and cannot be reviewed by Supreme Court on writ of error.
    2. Courts <&wkey;247(7) — Nature of conflict authorizing mandamus by Supreme Court to require certification by Court of Civil Appeals, stated. '
    Conflict of decisions authorizing mandamus by Supreme Court to require certification by Court of Civil Appeals under Rev. St. art. 1623, must be well-defined conflict on question of law involved in case, such that one decree would overrule the other if both were rendered by same court.
    3. Contribution <&wkey;9(4) — Joint obligors held properly joined as defendants in action for
    ' contribution by another joint obligor compelled to pay.
    Joint obligors were properly joined as defendants in action for contribution by another joint obligor who had been compelled to pay; that plaintiff alleged insolvency of one of them did not destroy cause of action against him, nor change his relationship to obligation.
    4. Courts <&wkey;247(7) — Decision of Court of Civil Appeals held not so conflicting with previous decisions as to authorize mandamus by Supreme Court to certify issues.
    Decision of Court of Civil Appeals denying plea of privilege held not so conflicting with previous decisions as to confer jurisdiction on Supreme Court to. issue mandamus to require certification under Rev. St. art. 1623.
    5. Courts &wkey;>247(7) — Mandamus by Supreme Court to require certification by Court of Civil Appeals denied where. no conflict in decisions exists.
    Petition for mandamus by Supreme Court to require certification by Court of Civil Appeals should be 'denied, where no conflict in decisions exists.
    Original motion for mandamus by- Albert G. Hinn against Jesse N. Gallagher, Chief Justice, and others.
    Motion denied.
    Kinder & Russell and Graham & Graham, all of Plainview, for relator.
    C. S. Bradley, of Groesbeck, amicus eurioe.
   PIERSON, J.

One W. L. Forbes brought suit in limestone county against E. D. Dickey, a resident of that county, and relator, Albert G. Hinn, a resident of Hale county. Relator Hinn filed his plea of privilege to be sued in the county of his residence, to wit, Hale county. His plea of privilege was overruled by the trial court, and this ruling was sustained by the Honorable Court of Civil Appeals for the Tenth Supreme Judicial District. Relator Hinn sought to have that court certify to the Supreme Court certain questions of law, alleging that its decision was in conflict with certain prior decisions of the Supreme Court and other Courts of Civil Appeals. His said motion being overruled, relator has filed in this court a motion for permission to file a petition for a writ of mandamus to require said Court of Civil Appeals to certify to this court certain questions of law involved in the alleged conflicts.

Article 1591, Revised Statutes, reads:

“The judgments of the Courts of Civil Appeals shall be conclusive on the law and fact, nor shall a 'writ of error be allowed thereto from the Supreme Court in the following cases, to-wit: * * * (6) The judgments of said Courts of Civil Appeals shall be final in all appeals from interlocutory orders appointing receivers or trustees or such other interlocutory appeals as may be allowed by law.”

The judgment of the Court of Civil Appeals in this case is final under the above article of the statute, no appeal by writ of error being allowed. Magouirk v. Williams (Tex. Com. App.) 249 S. W. 185; Perkins v. Bank & Trust Co. (Tex. Com. App.) 249 S. W. 186; Izaguirre v. Evans (Tex. Com. App.) 249 S. W. 187; Montgomery v.- Turner (Tex. Com. App.) 251 S. W. 1039.

Article 1623 makes it the duty of a Court of Civil Appeals, when its decision is in conflict with a prior decision of the Supreme Court or some other Court of Civil Appeals, to certify to the Supreme Court the questions of law involved in the conflict. Therefore, under said article, if there is a conflict as alleged by relator, a writ of mandamus would lie. However, upon a review of the cases alleged to be in conflict, we are of opinion that there is not such conflict as would justify the writ of mandamus. A conflict which would support a writ of mandamus to require certification must be upon a question of law involved and determined, and must be well defined, and such that one decision would overrule the other if both were rendered by the same court. Garrity v. Rainey, 112 Tex. 369, 247 S. W. 825. Also, see McKay v. Conner, 101 Tex. 313, 107 S. W. 45; Garess v. Fly (Tex. Sup.) 266 S. W. 779 (not yet [officially] reported).

Briefly stated, the instant case is • substantially as follows: W. L. Forbes, as plaintiff, brought suit in the district court of Limestone county against E. D. Dickey, a resident of that county, and relator Albert G. Hinn, a resident of Hale county, Tex., for contribution upon some obligations upon which plaintiff Forbes and said defendants and others were jointly obligated, which plaintiff Forbes had been compelled to pay. He alleged that some other parties were joint obligors with him and these de- . fendants, but that they were either nonresidents of the state or were insolvent. He alleged also that the defendant Dickey was insolvent, and on account thereof contribution could not he enforced against him by execution, and prayed that defendant Albert 6. Hinn be required to make contribution to him of one-half of the amount he had paid on their joint obligation, “and for all such other and further relief, general and special, as in law or equity he may be entitled to.” Defendant Hinn, relator herein, pleaded his privilege to be sued in the county of his residence, to wit, Hale county, and set out that, inasmuch as plaintiff Forbes alleged the insolvency of defendant Dickey, and in prayer sought to recover from Hinn one-half of the amount paid out, the defendant Dickey was neither a necessary nor a proper party to the suit. His plea of privilege was overruled by the district court, and the ruling was upheld by the Court of Civil Appeals.

Relator’s contention is that this holding is in conflict with Railway v. Mangum, 68 Tex. 342, 4 S. W. 617, Bingham v. Emanuel (Tex. Civ. App.) 228 S. W. 1015, and Railway v. Lumber Co. (Tex. Civ. App.) 54 S. W. 824, in which cases it was held that the resident must be either a necessary or proper party defendant against whom the plaintiff has alleged a cause of action in which the resident and nonresident defendants are jointly liable.

We do not find a conflict between the opinions cited and the opinion in this casé. To be sure, as held in the cases cited by relator, the plaintiff must allege sufficient grounds to fix liability upon the resident defendant, and such as would make him a necessary and proper party to the suit; that is, there must be alleged a joint cause of action against the resident and nonresident defendants in order to sustain venue against the nonresident defendant.

A causé of action in the instant case was clearly alleged against the defendant Dickey, and the fact that plaintiff Forbes alleged the insolvency of Dickey and sought contribution of an entire one-half agaipst Hinn does not destroy the cause of action against Dickey nor change his relationship to the joint obligation, nor plaintiff’s right to judgment against him under his prayer for general and special relief. At least, he was a proper party. See Slaton v. Anthony (Tex. Civ. App.) 143 S. W. 201, 202; Webster v. Frazier (Tex. Civ. App.) 139 S. W. 609, 610.

If, after examination, the Supreme Court finds that the cases do not conflict, it will deny the motion to file petition for mandamus. Texas & P. Ry. Co. v. Conner, 100 Tex. 407, 100 S. W. 367.

Therefore the motion for permission to file petition for writ of mandamus in this case is denied. 
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