Badgett v. Erspan, 17276
| Decision Date | 21 January 1972 |
| Docket Number | No. 17276,17276 |
| Citation | 476 S.W.2d 381 |
| Parties | Lloyd J. BADGETT, Appellant, v. Mary Frances Badgett ERSPAN, Appellee. |
| Court | Texas Court of Appeals |
Cox & Cox and J. P. Cox, Jr., Sherman, for appellant.
Minor & Knight and Tom D. Jester, jr., Denton, for appellee.
The appellee, Mrs. Erspan, instituted this suit against the appellant, Badgett, to recover a money judgment. Such a judgment was rendered against Badgett and he has appealed.
The basis of the suit filed by appellee was that in 1962 an El Paso District Court rendered judgment granting appellee, Mrs. Erspan, a divorce from appellant, Badgett, and decreeing that Mrs. Erspan was the owner of a 1/2 interest in retirement or pension benefit rights that had accrued to Badgett during the marriage of said parties by reason of Badgett's service in the United States Army and which benefits would be paid to Badgett upon his retirement from service in the Army. That El Paso decree also ordered Badgett to pay over to appellee, Mrs. Erspan, as they were paid to him, 1/2 of all such retirement benefits that were thereafter paid by the United States Government directly to Badgett. Mrs. Erspan alleged that Badgett did retire from the Army, and that the United States Government has paid to him retirement benefits and that Badgett failed and refused to pay her 1/2 thereof over to her. The judgment that is being here appealed from by Badgett awarded Mrs . Erspan a recovery from Badgett of $8,606.28, which sum represented Mrs. Erspan's 1/2 of the accrued retirement benefits that had been paid to Badgett and for which he had not accounted to appellee, plus accrued interest thereon.
By appellant's first point he contends that the trial judge erred in overruling his plea in abatement based on the grounds that there was still pending in the courts of the State of Nevada a prior suit which appellee here had there filed against this appellant seeking to recover on the same cause of action that is involved in this case . We overrule that point.
The fact that a plaintiff in a Texas case had prior to filing such case in Texas, filed a suit, that still pends, against the same defendant on the same cause of action in a court of a sister state is not ground for abating the Texas suit. Drake v. Brander, 8 Tex. 351 (Tex.Sup., 1852), (wherein the reasons for this rule are stated); Ellis v. Emil Blum Co., 242 S.W. 1099 (); Evans v. Evans, 186 S.W.2d 277 (); Biard & Scales v. Tyler Building & Loan Ass'n, 147 S.W. 1168 (); and 1 Tex.Jur.2d, Abatement and Revival, Secs. 36 and 75.
By appellant's 2nd point he contends that the court erred in failing to grant his motion to dismiss that he filed and presented to the court on the day the case came on for trial.
Neither the statement of facts nor the transcript show that appellant urged a motion such as that referred to in his 2nd point or that such a motion was ever presented to the trial court, nor do they reflect that the court ever ruled on any such motion.
Any bill of exceptions that appellant might have had in this connection was lost when he failed to cause his motion to get into the transcript and when he failed to have the record show that the court made a ruling on such motion that was adverse to and harmful to him.
Appellant's 3rd point was that the court erred in proceeding to trial on plaintiff's first amended original petition that was filed on the day that the trial began without any order permitting its filing.
Rule 63, Texas Rules of Civil Procedure, provides: 'Parties may amend their pleadings, . . . at such time as not to operate as a surprise to the opposite party; provided, that any amendment offered for filing within seven days of the date of trial . . . shall be filed only after leave of the judge is obtained, which leave shall be granted . . . unless . . . such amendment will operate as a surprise to the opposite party.'
The only difference between the amended and the original petition was that the amount of $6,238.00 asked for in the original petition was changed in the amended petition to $7,485.60, which change made current the amount of retirement benefits that had accrued to date of trial. The only other difference in such pleadings was the amount of attorney's fees asked for. This last feature went out of the case completely in view of the fact that no attorney's fees at all were allowed in the judgment appealed from.
The statement of facts shows conclusively that the trial court considered the amended petition because at the conclusion of the trial the judge said: 'I am going to render judgment for the Plaintiff in the amount that she sued for,...
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...of an abuse of discretion. Tanenbaum Textile Co. v. Sidran, 423 S.W.2d 635 (Tex.Civ.App.--Dallas 1967, writ ref'd n.r.e.); Badgett v. Erspan, 476 S.W.2d 381 (Tex.Civ.App.--Fort Worth 1972, n.w.h.); Box v . Associates Investment Company, 389 S.W.2d 687 (Tex.Civ.App.--Dallas 1965, n.w.h.); Do......
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...state will not be grounds for abating a suit in another state between the same parties and involving the same subject matter. Badgett v. Erspan, 476 S.W.2d 381, 382 (Tex.Civ.App.--Fort Worth 1972, no writ); Mills v. Howard, 228 S.W.2d 906, 908 (Tex.Civ.App.--Amarillo 1950, no writ); see als......
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Erspan v. Badgett, 79-4011
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