Ben C. Jones Co. v. Geo. Calhoun

BAUGH, J. Ben C. Jones & Co. have filed with the clerk of this court what they denominate a “Petition for Mandamus” against Hon. George C. Calhoun, judge of the Fifty-Third district court of Travis county, Tex., wherein they seek to compel said district judge to direct the clerk of his court to reinstate cause No. 30771, entitled Ben C. Jones & Co. v. State Printing Co. et al., upon the trial docket of said court, and 'to proceed to the trial thereof as if no judgment had been entered therein on April 14, 1919. In the absence of any rule regulating our procedure in such matters, we have concluded to follow the procedure of the Supreme Court of Texas (rule 15 for_the Supreme Court), and to treat said application as a motion. The subject-matter of said motion has been repeatedly before our courts, both trial and appellate, for more than 20 years. A full history of the litigation is found in (Tex. Civ. App.) 228 S. W. 619, to which we refer. The grounds upon which relators seek such mandamus are that the judgment of the district court entered in said cause No. 30771, on April 14, 1919, was not a final judgment on all the matters there in controversy;1 and that the judgment of affirmance by this court reported in said 228 S. W. 619, is null and void, in so far as it attempts to adjudicate relators’ suit to revive a judgment obtained in 1904 in cause No. 21146, in the district court of Travis county, Tex., alleged to be dormant. No good purpose would be served by a discussion of said questions here. Said motion sets up nothing new, and all the matters therein set forth have been finally determined and adjudicated in said cause No. 30771 by the judgment entered therein on April 14, 1919, from which the relators themselves appealed; and we find that said judgment, as affirmed by this court (228 S. W. 619), opinion written by the late Chief Justice Key, is res adjudieata, and conclusive on all matters set up in relators’ motion. Said motion is therefore in all things overruled. Overruled. BLAIR, J., concurs. McClendon, c. j., not sitting.