City of Dallas v. Dixon

• Decision Date: 13 March 1963
• Docket Number: No. A-9340,A-9340
• Citation: 365 S.W.2d 919
• Parties: CITY OF DALLAS et al., Relators, v. Honorable Dick ,DIXON, Chief Justice, et al., Respondents.
• Court: Texas Supreme Court

Page 919

365 S.W.2d 919

CITY OF DALLAS et al., Relators, v. Honorable Dick ,DIXON, Chief Justice, et al., Respondents.

No. A-9340.

Supreme Court of Texas.

March 13, 1963.

H. P. Kucera, City Atty., Dallas, N. Alex Bickley, Asst. City Atty., Will Wilson, Atty. Gen., Austin, Howard Mays, Asst. Atty. Gen., McCall, Parkhurst, Crowe, McCall & Horton, Ritchie, Ritchie & Crossland, Carrington, Johnson & Stephens, Dallas, for relators.

James P. Donovan, Dallas, for respondents.

CALVERT, Chief Justice.

When irrelevant and immaterial matters are eliminated from this direct proceeding in this Court, only two ultimate questions remain for determination: 1. Has this Court jurisdiction to issue a writ of mandamus to a Court of Civil Appeals requiring it, in a proper case, to issue all writs necessary to prevent prosecution of a suit in which the plaintiffs, bound by a prior judgment of the Court of Civil Appeals, seek to relitigate issues which were determined by the prior judgment? 2. If so, does the record before us present a case in which our jurisdiction to issue the writ of mandamus should be exercised?

The City of Dallas and its officials filed a proceeding in the Court of Civil Appeals for the Fifth Supreme Judicial District, sitting at Dallas, in which they sought the issuance of a writ of prohibition to prohibit the prosecution by the plaintiffs and their attorney of Civil Action No. 9276, styled Daniel C. Brown et al. v. City of Dallas et al., pending on the docket of the United States District Court for the Northern District of Texas, Dallas Division, and to direct their dismissal of the case. The writ of prohibition was sought on the ground that the plaintiffs in Brown v. City of Dallas are attempting to relitigate issues determined by a final judgment of the Court of Civil Appeals for the Fifth District in Atkinson et al. v. City of Dallas et al., 353 S.W.2d 275, writ refused, no reversible error. The Court of Civil Appeals denied the relief sought 362 S.W.2d 372. The court's judgment is not reviewable by appeal or writ of error. City of Houston v. City of Palestine, 114 Tex. 306, 267 S.W. 663.

The City of Dallas and its officials now seek a writ of mandamus from this Court directing the Court of Civil Appeals for the Fifth District, and the individual Justices of that court, to issue a writ of prohibition as there prayed for.

Before discussing the two questions posed at the beginning of this opinion, we dispose of two matters which we regard as irrelevant and immaterial.

Respondents urge that relators are not entitled to relief from the Court of Civil Appeals because they seek relief only against the plaintiffs and their attorney in Brown v. City of Dallas and ask only for a writ of prohibition; that writs of prohibition issue to courts and not to litigants. Technically speaking, that is correct, City of Houston v. City of Palestine, 114 Tex. 306, 267 S.W. 663; Lowe and Archer, Injunctions and Other Extraordinary Remedies, p. 482, § 511; High, A Treatise on Extraordinary Legal Remedies, pp. 603-604, § 762; 42 Am.Jur. 139-140, 150-151, Prohibition, §§ 2, 3, 11, although the true function of the writ is often overlooked. See Humble Oil & Refinding Co. v. Fisher, 152 Tex. 29, 253 S.W.2d 656. However, incorrect identity of the writ sought is of no significance. Relators seek from the Court of Civil Appeals a writ directing the plaintiffs and their attorney to desist from further prosecution of Brown v. City of Dallas in the United States District Court. If they are entitled to that relief, necessary and proper writs, by whatever names they may be called, should be issued.

Relators suggest in their brief that inasmuch as this Court refused writ of error, no reversible error, in Atkinson v. City of Dallas, the judgment of the Court of Civil Appeals in that case is a judgment of this Court which this Court may enforce by issuing writs to the plaintiffs and their attorney in Brown v. City of Dallas. The judgment of the Court of Civil Appeals in Atkinson v. City of Dallas is not a judgment of this Court. A judgment of a Court of Civil Appeals becomes a judgment of this Court when writ of error is granted for review of the judgment and it is affirmed. Houston Oil Co. of Texas v. Village Mills Co., 123 Tex. 253, 71 S.W.2d 1087. But when writ of error for review of a Court of Civil Appeals' judgment is 'Refused' or 'Refused, No Reversible Error,' this Court simply refuses to grant writ of error for the purpose of reviewing the judgment. City of Palestine v. City of Houston, Tex.Civ.App., 262 S.W. 215, 220, writ dismissed, 114 Tex. 306, 267 S.W. 663.

We now consider whether this Court has jurisdiction to issue a writ of mandamus to a Court of Civil Appeals requiring it, in a proper case, to issue all writs necessary to prevent prosecution of a suit in which the plaintiffs, bound by a prior judgment of the Court of Civil Appeals, seek to relitigate issues which were determined by the prior judgment.

It is clear that the Supreme Court has jurisdiction to issue a writ of mandamus to a Court of Civil Appeals to compel it to perform a mandatory duty. Simpson v. McDonald, 142 Tex. 444, 179 S.W.2d 239. Jurisdiction is conferred by Article 1733 ¹ which authorizes the Supreme Court in original proceedings to issue 'writs of * * * mandamus agreeable to the principles of law regulating such writs, against any district judge, or Court of Civil Appeals or judges thereof, * * *.' Legislative authority for enactment of the statute is found in Sec. 3, Art. v, of the Constitution, Vernon's Ann.St.

Sec. 6, Art. V of the Constitution confers jurisdiction in particular matters on the Courts of Civil Appeals, and provides: 'said Courts shall have such other jurisdiction, original and appellate as may be prescribed by law.' By the enactment of Art. 1823 the Legislature has provided: 'Said courts (Courts of Civil Appeals) and the judges thereof may issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts.' Interference with enforcement of a court's judgment is interference with its jurisdiction, and the quoted constitutional and statutory provisions confer jurisdiction on Courts of Civil Appeals to issue whatever writs are necessary, including the writ of injunction, to enforce their judgments. Long v. Martin, 116 Tex. 135, 287 S.W. 494; Cattlemens Trust Co. of Fort Worth v. Willis, Tex.Civ.App., 179 S.W. 1115; Nash v. Hanover Fire Ins. Co., Tex.Civ.App., 79 S.W.2d 182. But recognition that such jurisdiction exists does not furnish a complete answer to our problem.

Conferral of jurisdiction on a court to do a given act invests it with power to do the act, Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641; but whether the act is to be done may be either discretionary or mandatory. When exercise of the power is discretionary, its exercise may not be compelled by a superior court. When exercise of the power is mandatory, it may and should be compelled. It follows that whether this Court may and should issue a writ of mandamus to a Court of Civil Appeals to compel it to enforce one of its judgments must turn on whether enforcement of the judgment is merely a discretionary right or is a mandatory duty of the court.

Genrally speaking, enforcement of a judgment by the court which renders it, trial or appellate, is a duty. If a judgment is not enforced, the successful litigant has accomplished nothing; he has his victory but is denied its fruits. Judgments are rendered for the purpose of settling disputes between the parties to it; they are not to be nullified by either passive nonobservance or active interference. This does not mean, however, that it is the duty of an appellate court to exercise its original jurisdiction to enforce its judgments in every case. When an adequate remedy is otherwise available to a holder of rights under an appellate court judgment, the court which rendered it may, in its discretion, decline to exercise its original jurisdiction.

One in whose favor an appellate court judgment has been rendered has an adequate remedy to bar a second suit which seeks only to relitigate the issues between the parties, or their privies, and which does not otherwise interfere with enforcement of the prior judgment or with the rights of the parties springing from it. The remedy lies in the trial court in the defensive plea of res judicata; and the fact that the holder of rights under the prior judgment may be put to some trouble, delay and expense in defending the second suit does not render his remedy so inadequate as to require intervention by the appellate court through exercise of its original jurisdiction to enforce its judgment in the first suit. Milam County Oil Mill Co. v. Bass, 106 Tex. 260, 163 S.W. 577; Brazos River Conservation and Reclamation Dist. v. Belcher, 139 Tex. 368, 163 S.W.2d 183; Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648, 85 A.L.R.2d 1. If the rule were otherwise, the defense of res judicata to suits in trial courts would soon be abandoned in all instances involving appellate court judgments in favor of original proceedings in our appellate courts. The Supreme Court and Courts of Civil Appeals are primarily courts of review, and there is nothing in the constitutional and statutory provisions, or in our decisions, requiring them to exercise original jurisdiction to enforce their judgments when the same relief may be obtained relatively as expeditiously and inexpensively in the trial courts.

We should recognize, however, that a plea of res judicata as a defense to a second suit is not an adequate remedy for one holding rights under an appellate court judgment when an actual interference with enforcement of the judgment is coupled with the second suit, or when the mere filing and prosecution of the suit destroys the efficacy of the judgment. In such instances we conceive it to be the duty, as well as the right, of the appellate court to exercise its original...