¶1(concurring).
¶2Relator Morris Fishbein has presented motion for leave to file application for writ of prohibition, or, in the alternative, for writ of mandamus. A brief history leading up to this controversy is reflected from ■relator’s application will be enlightening as to the issues here presented.
¶3On September 27, 1948 Harry M. Hoxsey filed suit in the 44th District Court in Dallas County, Texas (No. 26,139-B) against Morris Fishbein, William Engle, W. R. 'Hearst, Jr., American Weekly, Hearst Consolidated Publications, Inc., and American Medical Association, seeking to recover damages for libelous publication. That suit was removed to the U. S. District Court at Dallas. A trial to the merits was had on March 16, 1949 only against the Hearst Publications, a nonsuit having been taken against- the other defendants, they not having been served with citation. On March 18, 1949 judgment was entered dismissing Fishbein, Engle and certain other named defendants, without prejudice, and in favor of plaintiff Hoxsey against Hearst Consolidated Publications, Inc., for $2, Hoxsey v. Fishbein, D.C., 83 F.Supp. 282, which judgment was paid and the plaintiff Hoxsey executed a full and complete satisfaction and discharge of that judgment.
¶4While the cause was being tried in Federal Court, on March 18, 1949, Fishbein came to Dallas at-the request of the defendants for the sole and only purpose of testifying in such suit. On arrival in Dallas he went directly to a hotel, and on the next morning he was served with a subpoena to appear as a witness to testify on behalf of the defendants. After breakfast, he went directly to the office of the attorneys for defendants, where he remained'until going to the Federal Court in response to the subpoena. He remained outside the door of the courtroom until called to testify, and after finishing his testimony walked out of the courtroom, and as he did so was served with citation issued out of the 44th District Court of Dallas County in suit entitled Harry M. Hoxsey v. Morris Fishbein, No. 31,011— B, which had theretofore been filed in said Court on March 18, 1949,v — same being the identical suit filed in the Federal Court. Immediately after the citation had been served, Fishbein went to his hotel, checked out, and en route to depart by airplane for Chicago, stopped to see a friend who was ill.
¶5On March 22, 1949 Hoxsey amended his petition in the suit filed in the District Court and made Millard Heath, a resident citizen of Dallas County, Texas, a party defendant; whereupon Fishbein filed a petition for removal to the U. S. District 'Court, which, on hearing, was remanded back to the 'State court because of Heath, a resident of this State, being made a party defendant. The relator, per amicus curiae, then filed plea to the jurisdiction of the State court on ground that he came into the State of Texas for the sole purpose of testifying in the U. S. District Court in the suit there pending, and that while in Texas he did nothing other than testify as such witness and did not attend any other activities of any nature or kind and was immune from process issued out of any other Court while in Texas for that purpose. Subject to such plea to the jurisdiction, relator, per amicus curiae, filed his motion to dismiss on the grounds of res adjudícala, estoppel by judgment, release of joint tort feasor, satisfaction, discharge, etc., together with other motions and exceptions, and upon hearing, on December 28, 1951, the court entered its order overruling each of said motions and set the cause for trial on its merits on April 2, 1952.
¶6*408In the light of the record here presented there is only one question for our review, that is, the immunity of Morris Fishbein, a nonresident witness, from service of the process; and, if 'so, it follows that this Court should issue writ of prohibition against the extrajudicial order of the court below.
¶7The question of whether a nonresident can voluntarily come into the State for the sole purpose of testifying in a case pending in this State and be immune from service of process upon him issued out of another court, is of extreme importance to the jurisprudence of Texas. The general rule is stated in 42 Am.Jur., p. 119, sec. 139, as follows:
“Our courts, with practical unanimity, accord to nonresidents of a -state who come within the territorial limits of the state to testify as witnesses in judicial proceedings therein an immunity or privilege from the service of civil process while in actual attendance at the trial or hearing and during such reasonable time as may be consumed in going to and returning from the place of trial. … The rules governing immunity of witnesses and parties to judicial proceedings, and of the court officials, from service of process while attending court, are of very ancient origin. References to them are found in the Year Books of England as early ■ as Henry VI. They came to us out of the common law with only such modifications as were required to make the principle underlying them -harmonize with American institutions and accord with American jurisprudence.”
¶8The rule is further stated in 72 C.J.S., Process, § 80, p. 1113, substantially as above; and further, on page 1117, id., it is said:
“… The exemption rests on grounds of public policy and the due administration of justice, which require that every reasonable method of ascertaining ‘ the whole truth in matters before the court should be open to the court,' since the court would he often embarrassed and sometimes interrupted if the suitor might be vexed with process while attending on the court for the protection of his rights, or the witness attending to testify. It is in the public interest that nonresident suitors and, witnesses be encouraged to appear voluntarily, and not deterred from so -doing; and unless immunity from service of civil process is. given they might be deterred from attending through fear of being subjected to the burden of .new litigation,, and delays might ensue and injustice--be done. Therefore, the courts should protect them against possible litigation by granting immunity from service of civil process and thus removing the liability to such litigation.
“It has also -been said that the exemption is founded on the principle that, where the law exacts a duty from-any person it will protect -him in the discharge of it, and that individuals cannot demand the use of public civil' process so as to arrest or interfere with others in the performance of public duties or of duties required by public process; and that immunity granted a nonresident witness does not work any injustice to anyone, since, unless he comes within the state, there will be no opportunity to serve any process on him.”
¶9In Lovejoy v. Foster, 77 F.Supp. 414, 415, arising in the U. >S. District Court at Dallas, it appears that the plaintiff filed suit in one of the State District Courts of Dallas against WRR Radio Station and the Mutual Broadcasting System, seeking damages for an alleged defamation of character by'reason of a broadcast. Foster was not a party to that suit, but -came into the State for the sole purpose of testifying for the defendants. While Foster was in Dallas, solely for that purpose, the plaintiff filed a suit against him in -the State Court on substantially the same cause of action. Foster removed the suit filed against him to the U. S. District Court and there moved to dismiss the suit on the ground of immunity from service. The *409Federal judge at Dallas dismissed the case and in his opinion, said:
“The immunity that a witness enjoys from process servers while attending court for another, is neither new nor novel. It is -based upon wholesome public policy. For many ■decades prior to Stewart v. Ramsey, 242 U.S. 128, 37 S.Ct. 44, 61 L.Ed. 192, the reasonableness of that position, was recognized and has since been recognized by many expressions in both the federal and state courts. Hale v. Wharton, C.C., 73 F. 739; Rix v. Sprague Machinery Co., 157 Wis. 572, 147 N.W. 1001, 52 L.R.A., N.S. 583; Davies v. Lutz, 110 Kan. 657, 205 P. 637; 21 R.C.L. 1305; Sherman v. Gunlach, 37 Minn. 118, 33 N.W. 549; State ex rel. Brainard v. District Court, 34 Wyo. 288, 243 P. 123; Wilson v. Donaldson, 117 Ind. 356, 20 N.E. 250, 3 L.R.A. 266, 10 Am.St.Rep. 48; Lingo v. Reichenbach Land Co., 225 Iowa 112, 279 N.W. 121; Bolgiano v. Gilbert Lock Co., 73 Md. 132, 20 A. 788, 25 Am.St.Rep. 582; Person v. Grier, 66 N.Y. 124, 23 Am.Rep. 35; Wheeler v. Flintoff, 156 Va. 923, 159 S.E. 112; Kelly v. Pennington, 78 Colo. 482, 242 P. 681, 45 A.L.R. 339; Paul v. Stuckey, 126 Ark. 389, 189 S.W. 676, L.R.A.1917B, 888.”
¶10The above is perhaps the only expression on the issue of immunity -decided in Texas. The reasons for granting immunity are varied in the different states of the Union -and the reasons therefor are well stated as against public policy and better administration of justice free from interference. See Moseley v. Ricks, 1937, 223 Iowa 1038, 274 N.W. 23; Murrey v. Murrey, 1932, 216 Cal. 707, 16 P.2d 741, 85 A.L.R. 1335; Wilson v. Donaldson, 117 Md. 356, 20 N.E. 250, 3 L.R.A. 266; Harris Foundation v. District Court, 196 Okl. 222, 163 P.2d 976, 162 A.L.R. 272; Murray v. Wilcox, 122 Iowa 188, 97 N.W. 1087, 64 L.R.A. 534.
¶11In so -far as the writer’s investigation has extended, the courts have uniformly extended this privilege of immunity not only to those who attended before the court on the actual trial, but also to those who attended as witnesses or suitors in the taking of depositions. It seems that the privilege of immunity is not uniform in all jurisdictions. For instance, in the case of State ex rel. Weast v. Moore, 164 Mo. App. 649, 147 S.W. 551, a nonresident claimed, privilege. from service in attending upon court in Missouri as a suitor at the time process in another case was served upon him. The court held, following Baisley v. Baisley, 113 Mo. 544, 21 S.W. 29:
“If we determine the question (of immunity) by the weight of'authority, it must be answered in the affirmative. In Mullen v. Sanborn, 79 Md. 364, 29 A. 522, 25 L.R.A. 721, … the authorities are collected in a note, consisting of 18 pages; and an examination thereof will disclose that the authorities are practically unanimous, and hold that a nonresident party to a suit cannot be served with process while temporarily within the state for the purpose of attending as a party and a witness. …
“If we are not bound by controlling decisions of our own court (B-aisley v. Baisley), we would be inclined to adopt the rule supported by this great weight of authority”.
¶12The quotation of authorities may be extended to include many decisions of federal courts and state -courts of numerous states which hold that a nonresident witness in a pending suit is exempt and immune from service of citation on him in another suit while in the state in attendance on court as a witness.
¶13From the facts as set forth in relator’s petition, not controverted by respondents, the, relator having taken all steps possible to protect his immunity from service, -and there being no appeal from an order overruling the plea to the jurisdiction, his only remedy is to seek extraordinary writ in this court.
¶14The trial-court having no jurisdiction of the relator Fishbein, under the circumstances as related,. we now turn to the question of whether o-r not this Court has jurisdiction to afford him relief. -The *410Constitution of Texas, Art. 5, sec. 6, Vernon’s Ann.St. provides:
“… Said Court of Civil Appeals shall have appellate jurisdiction co-extensive with the limits of their respective districts, which shall extend to all civil cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may he prescribed by law. … Said courts shall have such other jurisdiction, original and appellate as may be prescribed by law.”
By statute, Art. 1823, R.S. 1925: “'Said courts and the judges thereof may issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts.”
¶15In the case of Morse v. Scott, Tex.Civ.App., 130 S.W.2d 1041, 1045, it was held by majority of this court, the writer here dissenting on other grounds than here presented, with approval of the text in 50 C.J., sec. 56, p. 682, that “if the proceedings complained of are clearly beyond the jurisdiction of the inferior court or tribunal, and must ultimately be held to have been mistaken, prohibition should issue before the party aggrieved is put to the difficulties that would be raised, and the court to the inconvenience that would ensue, by permitting such proceedings to continue.” See 73 C.J.S., Prohibition, § 15. Also, in sec. 57, p. 683, it is said:
“Prohibition may issue notwithstanding another remedy for the grievance complained of is available if such other remedy would not afford complete and adequate relief. To be adequate the concurrent remedy must •be sufficient to afford the relief the case demands. … the prosecution of other remedies, or the delay or inconvenience incident thereto. The fact that the action complained of is about to be taken in violation of express statutory provisions may be considered.”
¶16In City of Houston v. City of Palestine, 114 Tex. 306, 267 S.W. 663, 664, the Supreme Court said:
“Being known to the common law, it is obvious that the language of the Constitution and statutes relating to Courts of Civil Appeals is broad enough to include, and was intended to embrace, the power and authority to issue writs of prohibition. .…”
¶17The question involved here is whether this Court can grant a writ of prohibition or mandamus in a case which has never reached this 'Court. We have a situation where as order has been entered by the trial court from which there is no appeal. Where an inferior court is assuming jurisdiction which it does not have, to wit,, jurisdiction over the relator Fishbein, under the related authorities, supra, the question then is whether this Court can prohibit the district court from assuming jurisdiction. In 33 Tex.Jur. 923, is this language :
“The writ of prohibition is an extraordinary writ, issued by a superior court to an inferior judicial tribunal to prevent the latter from assuming jurisdiction in a matter over which by law it has no control, or from exceeding its jurisdiction in a matter of which it has taken cognizance. …
¶18Also, at page 929, we find this language;
“Although there is authority to the effect that a Court of Civil Appeals may not exercise this power except in aid of its appellate jurisdiction, the later decisions definitely hold that the court may also issue original writs of prohibition in proper cases.”
¶19In the case of Browne v. Rowe, 10 Tex. 183, it is said:
“This writ issues from a superior Court, and is directed to the judge and parties in any suit in an inferior tribunal, commanding them to cease from the prosecution thereof, upon a suggestion that either the cause originally or some collateral matter arising therein does not belong to that jurisdiction, but to the cognizance of some other Court. (Black, Vol. 3, pp. 112, 113.) This, in substance, is the de'fini*411'tion of the writ. Its purpose is to restrain the encroachment of the juris•diction of inferior courts, and it is ■extended to a great variety of cases, having a more or less intimate relation with its general object.”
¶20In Stone v. Kuteman, Tex.Civ.App., 150 S.W.2d 107, the court quotes with approval the rule in 50 C.J. 654, para. 3, with ref•erence to such a writ, -wherein it is said:
“Prohibition, at common law, was a remedy against encroachment of jurisdiction. Its office was to restrain subordinate courts and inferior judicial tribunals from extending their jurisdiction. In adopting the remedy the courts have almost universally preserved its original common law nature, object and function.” See 73 C.J.S., Prohibition, § 2.
¶21In 22 R.C.L. 2, para. 1, with reference to such a writ, we find this language:
“It is commonly defined, substantially, as a writ to prevent the exercise by a tribunal possessing judicial powers of jurisdiction over matters riot within its cognizance, or exceeding its jurisdiction in matters of which it has cognizance.”
¶22While the language of the Constitution and statutes granting original jurisdiction and power to the Supreme Court to issue writs of prohibition and mandamus is broader than that granted to Courts of Civil Appeals, yet the 'Supreme Court, owing to the great volume of business coming before it, requires that application for such writs be presented to the Court of Civil Appeals in the first instance. Dallas Ry. & Terminal Co. v. Watkins, 126 Tex. 116, 86 S.W.2d 1081. In that case the Supreme Court quoted with approval from Houtchens v. Mercer, 119 Tex. 244, 27 S.W.2d 795:
“Since we have concluded that the Court of Civil Appeals has the power to issue the writ of mandamus, and such other writs ancillary thereto as may be necessary to protect the relator in every right he has under the law, it is the rule that we should ordinarily decline to take jurisdiction under our original power to issue the writ of mandamus until the relator has applied to the Court of Civil Appeals for such relief, if any, to which he may be entitled.”
¶23In the case at bar on the issues, supra, it will be seen that we have uncontro-verted facts on which only one judgment could have and should have been rendered in order to protect a nonresident coming into this state solely for the purpose of ■testifying in a case being tried in this State; and there Ibeing no appeal from the order overruling relator’s plea to the jurisdiction, such nonresident witness should not'be compelled to submit himself to the jurisdiction of the court in Texas and subject himself to the inconvenience, delay and expense incident to the trial.
¶24However, be that as it may, it has almost uniformly been held that a general appearance is entered by a defendant whenever the defendant invokes -the judgment of the court in any way on any question; hence the defendant here having presented in the court below varied motions as related in Justjce CRAMER’S opinion, invoking the jurisdiction of the court, effectively made his personal appearance, irrespective of the error I think in the trial court’s overruling his motion attacking the service of citation, supra. In consequence I am in accord with the conclusion that defendant’s motion to file application for the extraordinary writ of prohibition or mandamus be denied.