Meissner v. Fuchs , 1955 Tex. App. LEXIS 2370 ( 1955 )

GANNON, Justice.

This is an original proceeding applying for a writ of prohibition and injunction to preserve the integrity of a final judgment in suit No. 8015, styled Elmer J. Pfeffer et al. v. Halley J. Pfeffer et al., in the District Court of Austin County, Texas, affirmed by this Court on May 27, 1954, on the appeal of Halley and Seldon Pfeffer. See Tex.Civ.App., 269 S.W.2d 436. Our judgment of affirmance has long since become final, the Supreme Court having refused a writ of error, n. r. e.

The basis of the application for prohibition and injunction is that by two later suits, to-wit: No. 8274, styled Elna Pfeffer et al. v. Alvin Meissner et al., in the District Court of Austin County, Texas, and No. 8279, styled Elna Pfeffer v. Elmer J. Pfeffer, in the District Court of Austin County, Texas, the respondents, Halley Pfeffer and wife Ruby Pfeffer, Seldon Pfeffer, Cynthia Pfeffer, Elna Pfeffer, Etrulia Pfeffer Collier, and Malinda Pfef-fer, seek to relitigate rights established by the final judgment in No. 8015, styled Elmer J. Pfeffer et al. v. Halley J. Pfeffer et al., in the District Court of Austin County, Texas, which judgment was affirmed by us on the appeal of Halley and Seldon Pfeffer, and that said suits Nos. 8274 and 8279 are of such a nature that if successfully prosecuted the judgments therein will purport the divesting of rights established by the orders entered in suit No. 8015.

Examination of the application for the writ convinces us that it is on sound footing as far as our power to issue injunc-tive relief against Halley and Seldon Pfef-fer on the facts is concerned. There is no doubt of our right in proper cases to issue original writs of prohibition and of injunction to protect our jurisdiction. See Texas National Bank v. Zellers, Tex.Civ.App., 75 S.W.2d 890; Nash v. Hanover Fire Ins. Co., Tex.Civ.App., 79 S.W.2d 182; Yount-Lee Oil Co. v. Federal Crude Oil Co., Tex.Civ.App., 92 S.W.2d 493. However the exercise of the power is discretionary and it is our view that the power should not be used unless practical results can be accomplished thereby.'

By reference to the fact findings in No. ■12,891, Pfeffer v. Meissner, Tex.Civ.App., 286 S.W.2d 241, it will be seen that our judgment of affirmance of certain of the trial court’s orders in No. 8015 is res ju-dicata only as between applicants and respondents Halley and Seldon Pfeffer. None other of the respondents were parties to the appeal and therefore were not parties to our judgment of affirmance. Were we to issue writs of prohibition and of injunction to restrain the prosecution of purely vexatious suits by Halley and Sel-don Pfeffer alone, very little would be accomplished. Any of the remaining respondents, who do show a disposition to re-litigate the same issues previously decided in No. 8015, could continue to file additional suits seeking to relitigate the very matters determined in No. 8015, and we would be powerless to enjoin their doing so because they were not parties to our judgment of affirmance.

Undoubtedly the .trial court has clear power to enjoin purely vexatious litigation filed and prosecuted in an obvious effort to relitigate that which has become res judicata under its orders, judgments and decrees. Gann v. Putman, Tex.Civ.App., 159 S.W.2d 931; Renfroe v. Johnson, 142 Tex. 251, 177 S.W.2d 600.

Since in any attempted relitigation of the issues which have been finally determined in No. 8015, all parties to that judgment would be necessary parties, including Halley and Seldon Pfeffer, we have decided to exercise our discretion by dismissing the application for prohibition and injunction at this time, without prejudice to the right in any of the applicants to refile if it should later appear that there is a substantial and practical necessity or desirability for the granting in whole or in part of the relief prayed for.

Application for prohibition and injunction dismissed.