Long v. Martin
| Decision Date | 14 October 1926 |
| Docket Number | (No. 7245.) |
| Citation | 287 S.W. 494 |
| Parties | LONG et al. v. MARTIN et al. |
| Court | Texas Supreme Court |
Original proceedings in mandamus by H. A. Long and others against M. E. Martin and others. On motion for permission to file petition for mandamus. Motion denied, and restraining order dissolved.
W. E. Spell and W. L. Eason, both of Waco, for relators.
This action is an original one for mandamus. The application is made by H. A. Long, W. H. McCullough, Ed. McCullough, Tom L. McCullough and his wife, Kate O. McCullough, against M. E. Martin, Leslie Stegall, sheriff of McLennan county, Hon. Giles P. Lester, judge of the Seventy-Fourth district court of McLennan county, and certain other parties. The facts and issues involved, in so far as may be necessary to an understanding thereof, may be found in the reported case of Long v. Martin, 285 S. W. 1075, in an opinion rendered when the matters now presented were before this court on certified questions, and in the opinion of the Court of Civil Appeals granting the writ of prohibition of which complaint is made, reported in 260 S. W. 327.
We have concluded that the motion for leave to file the application for mandamus should be overruled.
The Court of Civil Appeals at Amarillo plainly had the right to protect its judgment by writ of prohibition or injunction against the maintenance of the suit in McLennan county by defendants, against whom it had previously rendered a judgment. That court, in the opinion above referred to, correctly held that the judgment on which the execution complained of had issued was not dormant. See the cases cited in the opinion. The court likewise made a correct disposition of the issue that the petition in the original suit, and upon which the judgment was based, did not state a cause of action. That question had already been tried and determined adversely to the complaining parties. Long v. Martin (Tex. Civ. App.) 234 S. W. 96. Besides, the rule that a valid judgment for a plaintiff is conclusive, not only as to defenses which were set up and adjudicated, but as to those which might have been raised inconsistent with the facts necessary to sustain the judgment, is one of universal acceptation. Cleveland v. Ward (Tex. Sup.) 285 S. W. 1063, 1070, and cases there cited.
As to whether or not the writ of prohibition issued by the Court of Civil Appeals should have been made to run against the district judge of McLennan county as well as the parties plaintiff in the McLennan county action is a question unnecessary for us to decide.
The application for mandamus here complains that a levy has been made on certain shares of stock which it is alleged are the property of Mrs. Kate O. McCullough, who was not one of the judgment defendants, and that, therefore, she has the right to test the sufficiency of the...
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