1. — Mandamus — Parties.
Where necessary party is not joined in the petition for mandamus, the same will be dismissed.
2. — Mandamus — Practice in Supreme Court.
The Supreme Court will not permit the filing of a petition for mandamus in a case where the Court of Civil Appeals has the power to issue such writ.
MR. JUDGE GERMAN delivered the opinion for the court.
This is an original mandamus proceeding brought by Estell Miller, a feme sole, against Honorable Vincent Stine, Judge of the District Court of the 97th Judicial District of Texas. The purpose of the suit is to compel the respondent to enter judgment in favor of relator in the case of Estell Miller v. R. L. McClure tried in the District Court of Montague County on April 13, 1933.
1 On careful inspection of the record we find that R. L. McClure, defendant in the cause mentioned, has not been a party to this proceeding, and has filed no answer herein. He being a necessary party, the order allowing filing of the petition was improvidently entered. Williams v. Wray, 123 Tex. 466, 72 S.W.2d 577, and authorities cited.
2 Since the filing of the petition in this case the Supreme Court has again taken occasion to specifically declare that in all cases where the Court of Civil Appeals has power to issue writs of mandamus, this court will not permit the filing of petitions for such writs. Dallas Railway Terminal Company v. Watkins et al., 126 Tex. 116, 86 S.W.2d 1081.
The petition for mandamus is therefore dismissed.
Opinion adopted by the Supreme Court Febrary 26, 1936.