
    BARRIER et al. v. LOWERY et al.
    (No. 933—5033.)
    Commission of Appeals of Texas, Section B.
    Dec. 12, 1928.
    Davis, Synnott & Hatchell, of Dallas, for relators.
    Wilson & Randal and J. I. Kilpatrick, all of Lubbock, and Royall R. Watkins, of Dallas, for respondents.
   LEDDY, J.

Relators seek in an original application for mandamus to require Judge Royall Watkins,- judge of the Ninety-Fifth district court at Dallas, to proceed to trial of a cross-action-filed by them in a certain suit brought in that court by respondent H. J. Lowery. It appears that plaintiffs’ cause of action in that suit was dismissed for want of prosecution, but the cross-action filed by re-lators therein remained on the docket for trial. Before a trial thereon could be obtained, the respondent Lowery filed an independent suit in the district court of Lubbock county covering the same subject-matter as is involved in relators’ cross-action pending in Judge Watkins’ court. It is conceded that a final judgment in the suit filed at Lubbock could successfully be pleaded in bar of the relief sought by relators in the cross-action in the suit pending at Dallas.

The plaintiff in the Lubbock suit procured the issuance of a temporary writ of injunction restraining relators and their attorneys from further prosecuting their cross-action in the Ninety-Fifth district court at Dallas or from taking any orders therein.

The district court for the Ninety-Fifth district having acquired jurisdiction of the subject-matter involved in relators’ cross-action, its right to determine the questions therein involved was exclusive, and could not be trenched upon by any other court. Cleveland v. Ward, 116 Tex. 1, 285 S. W. 1063, and cases there cited; Benson v. Fulmore (Tex. Com. App.) 269 S. W. 71; Long v. Long (Tex. Civ. App.) 269 S. W. 207; Goggan & Bros. v. Morrison (Tex. Civ. App.) 163 S. W. 120; Miller & Vidor Lumber Co. v. Williamson (Tex. Civ. App.) 164 S. W. 440; Camp v. First Nat’l Bank (Tex. Civ. App.) 195 S. W. 217; State v. Reynolds, 209 Mo. 161, 107 S. W. 487, 15 L. R. A. (N. S.) 963, 123 Am. St. Rep. 468, 14 Ann. Cas. 198.

There existed some confusion in the authorities on this question prior to the decision of our Supreme Court in the case of Cleveland v. Ward, cited above. The decision in that case clarified the law of this state with reference to the jurisdiction of a district court to enter any order or take any action in a case where the jurisdiction of another district court has previously attached to the subject-matter and the parties involved therein. It is there distinctly held that jurisdiction of a district court once acquired cannot be destroyed, diminished, or suspended by any one of the parties, pending an action in another court, and any judgment or order of the latter is void so far as it conflicts with any judgment or order of the court first acquiring jurisdiction.

Under the rule announced in the above case, it is clear that the district court of Lubbock county was without jurisdiction to take any action concerning the subject-matter of the suit pending in the Ninety-lTifth district court at Dallas which would tend to prevent that court from disposing of a case to which its jurisdiction had attached. The determination of all questions involved in that case belonged exclusively to the court in which the case was pending. The injunction issued by the district court of Lubbock county restraining relators from px-osecuting their suit in the court where jui’isdietion had already attached was therefore void; hence no reason exists why the district court at Dallas should not proceed to try the issues involved in relators’ suit.'

The writ of mandamus prayed for must be refused, however, because it appears from the answer of respondent Judge Royall Watkins that he has not refused to try relators’ cross-action, but is ready and willing to do so. Relators no doubt assumed that a trial by Judge Watkins, at a time when they were restrained from taking any action in the case by reason of the injunction served upon them out of the district court of Lubbock county, would not be the character of trial to which they were entitled under the law of this state. This would be true, if the injunction issued by the district court at Lubbock was valid and enforceable. As is said by Chief Justice Cureton in the Cleveland Case, “to say that the case could be tried without the presence of the plaintiffs who brought the suit would be a denial to them of due process.”

Writ of mandamus can only be issued when it appears that a judge improperly refuses to proceed to trial. Since it is shown that Judge Watkins is ready and willing to try the case, and that the action of the district court at Lubbock in enjoining relators from appearing or taking any action in the case pending in Judge Watkins’ court is 'void, no reason exists why said cause of action should not be promptly disposed of.

We therefore recommend that the writ of mandamus prayed for be denied, and that the restraining orders heretofore issued by the Supreme Court staying the proceedings in both courts and that of the district court of Lubbock county enjoining relators from appearing or taking any action in Judge Watkins’ court be annulled and vacated. All cost of this proceeding will be assessed against respondent H. J. Lowery.

GREENWOOD and PIERSON, JJ.

Opinion of Commission of Appeals is adopted, and restraining orders of district court of Lubbock county and of Supreme Court are vacated, and mandamus refused, with costs taxed against respondent Lowery.  