Blume v. J. I. Case Threshing Mach. Co.

• Decision Date: 09 November 1920
• Docket Number: (No. 638.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: BLUME v. J. I. CASE THRESHING MACH. CO.
• Court: Texas Court of Appeals

Page 831

225 S.W. 831

BLUME v. J. I. CASE THRESHING MACH. CO.

(No. 638.)^*

Court of Civil Appeals of Texas. Beaumont.

November 9, 1920.

Rehearing Denied December 1, 1920.

Appeal from District Court, Jefferson County; E. A. McDowell, Judge.

Suit by E. D. Blume against the J. I. Case Threshing Machine Company. From an order dissolving two temporary injunctions, plaintiff appeals. Reversed and remanded, with directions.

A. D. Lipscomb, of Beaumont, for appellant.

Spence, Haven & Smithdeal, of Dallas, for appellee.

WALKER, J.

This is an appeal from an order of the district court of Jefferson county, dissolving two temporary injunctions granted upon prayer of appellant, plaintiff below. In August, 1919, appellant entered into a contract with the appellee, defendant below, to purchase a threshing machine for which he executed his note in the sum of $1,602, secured by a chattel mortgage on the threshing machine and other personal property owned by him. This note was not paid by appellant when it became due, and appellee went upon appellant's premises in Jefferson county, took possession of the machine, carried it to Dallas, and advertised it for sale in Dallas county, under the terms of its chattel mortgage. Thereupon appellant filed his suit in the district court of Jefferson county, pleading the facts as just stated, a novation in the original contract, breach of contract of purchase by appellee, and by reason of such breach laid his damages in the sum of $10,000.

Without giving the substance of this petition, it is sufficient to say that the count for damages for the alleged breach of contract is good as against a general demurrer. His original petition concluded with the following prayer:

"Wherefore the plaintiff prays that defendant may be cited to answer hereto; that upon hearing of this petition the plaintiff may have his judgment for damages as hereinabove alleged, and costs of suit, and a permanent injunction against the sale of the said threshing machine, or any of the other property of the plaintiff, and that plaintiff may have a judgment for the recovery of his said threshing machine from defendant, or the value thereof in damages as above alleged, and for cancellation of said mortgage as having been satisfied, and pending the final hearing the plaintiff prays that he may have a temporary injunction against the defendant, restraining the aforesaid sale as advertised by the defendant."

E. A. McDowell, judge of the Sixtieth judicial district, one of the districts of Jefferson county, granted the injunction as prayed for. It was duly issued and served upon appellee. When this injunction was served, prohibiting the sale of the threshing machine, appellee then filed suit in one of the district courts of Dallas county against appellant, praying for judgment on its purchase-money note and for a foreclosure of its chattel mortgage lien on all property held by it as security for its debt. Appellant then filed a supplemental petition in his suit in Jefferson county in part restating his original cause of action and further pleading that the subject of appellee's suit in Dallas county was involved in his suit and was a part of his suit, and prayed for an injunction against appellee restraining it from further prosecuting its suit in Dallas county. The injunction was granted by Judge McDowell, as prayed for, and it was duly served. On appearance day of the ensuing term of the district court in Jefferson county appellee answered appellant's suit by a demurrer and on the facts, pleading, in substance, the facts as alleged in its suit in Dallas county, and prayed:

"Wherefore, premises considered, defendant prays that the temporary injunction issued herein be dissolved, and that the plaintiff take nothing by his suit against the defendant, and that defendant go hence without day, together with its costs, and for general relief."

The case was not tried on the facts, but appellant and appellee argued the demurrers, and submitted briefs to Judge McDowell. After deliberating on the case for some days, he dissolved the injunction. From this order appellant has duly perfected his appeal to this court.

Only two propositions are involved in this appeal; (1) Has appellant an adequate remedy at law by filing a plea in abatement in the suit in Dallas county? (2) If he has not, then did the district court of Jefferson county have authority to restrain appellee from a further prosecution of its suit in Dallas county? These propositions will be discussed in the order given.

1. The general rule for abating an action, on the ground that a prior action is pending involving the same parties and the same subject-matter, is thus stated in 1 Corpus Juris, p. 61, § 90:

To sustain the plea of another action pending at law or in equity, or to sustain such defense by demurrer or answer under the code, it is essential that it shall appear, not only that there is a prior action pending between substantially the same parties, but also that the cause or causes of action and the issues involved are substantially the same in the two suits."

Appellant's suit is for damages arising from an alleged breach of contract. In stating his cause of action he alleges the circumstances under which the contract was made, the terms of the contract, the novation in the contract, and the facts constituting the breach; also he alleges the execution of the notes and chattel mortgage sued on by appellee in Dallas county. No issue is made by him as to the execution of the note and mortgage. He further alleges that appellee wrongfully entered upon his premises, tore down his fences, and took from his possession the threshing machine, after the damage had accrued, and at a time when the damage exceeded his debt to appellee. He prays for a sum largely in excess of the amount due by him to appellee, and for the recovery of the threshing machine and cancellation of the mortgage. Appellee's suit...