Benson v. Fulmore

• Decision Date: 18 February 1925
• Docket Number: (No. 611-4102.)
• Citation: 269 S.W. 71
• Parties: BENSON v. FULMORE.
• Court: Texas Supreme Court

Page 71

269 S.W. 71

BENSON v. FULMORE.

(No. 611-4102.)

Commission of Appeals of Texas, Section A.

February 18, 1925.

Error to Court of Civil Appeals of the Third Supreme Judicial District.

Suit by S. R. Fulmore against W. D. Benson and another. Judgment for the named defendant in district court was reversed by the Court of Civil Appeals (257 S. W. 697), and the named defendant brings error. Judgment of Court of Civil Appeals reversed, and that of district court affirmed.

B. J. Dean, of Breckenridge, and G. B. Smedley, of Wichita Falls, for plaintiff in error.

Cofer & Cofer, of Austin, for defendant in error.

CHAPMAN, J.

S. R. Fulmore of Travis county and S. F. Tubbs of Dallas county made an exchange of lands whereby Fulmore conveyed for the benefit of Tubbs lands in Travis county and Reagan county and Tubbs conveyed to Fulmore certain lots in the town of Lubbock, Lubbock county. Fulmore assumed the payment of certain outstanding vendor's lien notes against the Lubbock lots. These notes were owned by W. D. Benson of Stephens county. On November 22, 1921, Benson brought suit in the district court of Lubbock county against Fulmore on his assumption and for a foreclosure of his vendor's lien, and made R. L. Rather and H. C. Tubbs parties to the suit, alleging that they were claiming some interest in the land. December 12, 1921, Fulmore filed his original answer in the Lubbock county case, pleading general demurrer and general denial. February 15, 1922, Benson filed an amended petition in the Lubbock county case, making S. F. Tubbs a party to that suit. January 30, 1922, Fulmore filed his first amended original answer in the Lubbock county case, alleging that he should not be held on the assumption because his assumption was obtained through the fraud of S. F. Tubbs and filed his cross-action against Benson for a rescission of the assumption and for damages in the sum of $2,500. March 7, 1922, S. F. Tubbs filed waiver of citation in the Lubbock county case. December 10, 1921, Fulmore filed suit in the district court of Travis county against Benson and S. F. Tubbs, alleging fraud on the part of both of them in the exchange of lands made between Fulmore and Tubbs, and that Tubbs had parted with the title to the land that Fulmore conveyed to him, and asked for damages in the sum of $2,500. February 6, 1922, Fulmore filed his amended petition in the Travis county case, asking for a cancellation of his assumption of the payment of the Benson notes and for damages and for general relief. January 2, 1922, Benson filed his plea of privilege in the Travis county case, which plea was duly controverted by Fulmore, and was overruled March 4, 1922. March 4, 1922, after his plea of privilege had been overruled, Benson filed in the Travis county case his plea of the pendency of the Lubbock county case, which plea was later amended by adding all the pleadings in the Lubbock county case, and this plea in abatement was sustained April 29, 1922, and this action of the trial court was reversed by the Court of Civil Appeals, 257 S. W. 697. While this case was pending in the Court of Civil Appeals, Fulmore presented to that court an application for writ of injunction or prohibition against Benson and S. F. Tubbs and the judge of the district court of Lubbock county for the purpose of preventing a trial or other procedure in the case pending in Lubbock county until said court disposed of Fulmore's appeal from the action of the district court of Travis county sustaining the defendant Benson's plea in abatement, which application was denied. 245 S. W. 124.

The question now before this court is as to the correctness of the order of the district court of Travis county in sustaining Benson's plea in abatement. The Court of Civil Appeals held that the plea in abatement was waived and should have been stricken out because it was not filed at or before the time the plea of privilege was filed, and that there was not sufficient identity of causes of action both as to parties and subject-matter to justify the sustaining of the plea in abatement. After a party has been properly cited to appear in a court of competent jurisdiction, if the cause is brought in a county other than that of the residence of the defendant, and he prefers to have the cause tried in the county of his residence, then he is entitled to have his plea of privilege passed on before the court takes any other action. We understand the object of the plea of privilege statute to be to give the defendant the right to have every phase of the case tried in the county of his residence, including a plea in abatement. If the trial court had sustained the plea of privilege, then he could not have heard the plea in abatement, and it is very probable that the defendant would not have filed the plea if the case had been transferred to the county of his residence. There could certainly be no good purpose served in forcing a defendant to file a plea in a court until after it was determined whether that court would have the right to pass on the plea. We think the present plea of privilege law supersedes other laws and rules of order of pleading so far as they affect the plea of privilege, and that, after a defendant has been properly cited, he is next entitled to have his plea of privilege determined before he is required to file any other pleadings.

The present trend of authorities seems to be to give a liberal construction to a plea of another suit pending affecting the same parties and subject-matter to the end that the court in which the cause is first filed shall try it.

In 1 Cyc. p. 21, we find this general statement:

"It is a general principle of the law that the pendency of a prior suit for the same thing, or as is commonly said, for the same cause of action, between the same parties in a court of competent jurisdiction, will abate a later suit."

And in 11 Cyc. p. 985, this other general statement:

"Where two actions between the same parties, on the same subject, and to test the same rights, are brought in different courts having concurrent jurisdiction, the court which first...