Bray v. First Nat. Bank
| Decision Date | 10 October 1928 |
| Docket Number | (No. 7266.) |
| Parties | BRAY et al. v. FIRST NAT. BANK OF MERTZON. |
| Court | Texas Court of Appeals |
Appeal from District Court, Runnels County; J. O. Woodward, Judge.
Suit in the nature of a bill of review by R. P. Bray and another against the First National Bank of Mertzon. Judgment for defendant, and plaintiffs appeal. Affirmed.
Saunders & Atchison, of Breckenridge, for appellants.
A. K. Doss, of Abilene, and Collins, Jackson & Snodgrass and H. E. Jackson, all of San Angelo, for appellee.
Appellants sued in the nature of a bill of review after time for an appeal or writ of error had expired, seeking to set aside a judgment for appellee against appellant Bray, and a judgment for appellee against appellant United States Fidelity & Guaranty Company, in an ancillary garnishment suit, each rendered by the district court of Runnels county.
The suit arose out of the following facts and proceedings:
December 7, 1925, appellee sued Bray in the district court of both Tom Green and Runnels counties, on an alleged indebtedness in each case of $4,468.30, and caused a writ of garnishment to issue out of the Runnels county suit to First National Bank of Ballinger, garnishee, and on the same day Bray filed his replevy bond with appellant guaranty company as surety, withdrawing the sum of $1,324.05, impounded under the garnishment writ. On February 9, 1926, Bray filed in the Runnels county suit his plea of privilege to be sued in Stephens county, his alleged domicile, which was duly controverted by appellee February 13, 1926. Bray was not given the statutory notice of the filing of this controverting plea, and the court adjourned February 27, 1926, without entering any order with reference to the plea of privilege. On April 9, 1926, Bray filed a motion to dismiss the controverting plea to his plea of privilege, because no notice of its filing had been given him during the term at which it was filed, and because the court lost jurisdiction of the case by failing to pass on the plea of privilege during the term at which it was filed. This motion was overruled November 10, 1926, without an exception being taken by appellant.
By a first amended original petition, filed September 4, 1926, in Tom Green county suit, appellee, by a separate count, sued not only for debt, but for recovery of certain personal property and for damages for conversion of certain personal property alleged to have been taken from its possession by Bray and his associates. On September 28, 1926, Bray filed a plea in abatement, pleading the pendency of the Runnels county suit, in bar of recovery; or, in the alternative, to require appellee to elect which suit it would prosecute, alleging the suits to be based upon the same cause of action, to which plea he attached certified copies of certain pleadings filed in the Runnels county suit, including his motion to dismiss appellee's controverting affidavit to his plea of privilege. The plea in abatement was heard and taken under advisement in the Tom Green county suit, and later, January 3, 1927, it was overruled, and then judgment was rendered for appellee against Bray for $4,468.30, and for title to certain described personal property. Appellant was notified of these proceedings, but did not perfect an appeal or writ of error from that judgment.
On February 8, 1927, without notice to appellants, the Runnels county court heard and overruled the plea of privilege, and on the same day rendered the judgments here complained of, which were by default, and from which no appeal or writ of error were perfected.
Appellants alleged that they had no notice of the last proceedings in the Runnels county suit until shortly before filing this suit, January 19, 1928.
On the hearing appellants were denied the relief sought, and have prosecuted this appeal, contending as follows:
1. That since Bray's plea in abatement was overruled, and since appellee prosecuted its Tom Green county suit to final judgment on the same cause of action asserted in the Runnels county suit, it was thereafter estopped, and is now estopped, to further prosecute the last-named suit. By way of a preliminary, we do not consider this suit either a direct or a collateral attack upon the judgment rendered in the Tom Green county suit. If it were, appellants' appeal must fall immediately, because, if they have alleged a meritorious defense to the judgments complained of, it rests solely on the ground that appellee had already taken a judgment in the Tom Green county suit upon the identical cause of action asserted in the Runnels county suit.
But be that as it may, we do not sustain the contention made for the following reasons:
(a) While appellants alleged that the suits were based on the same cause of action, they failed to prove the allegation. On the issue appellants offered certified copies of certain pleadings, judgments, and orders filed in the suits, and the oral testimony of their attorney with reference to certain steps taken by him in defense of the suits. No evidence was offered showing or tending to show that these were all the pleadings or proceedings had in the cases, nor that the causes of action were identical. It is true the pleadings declare on a debt of similar amount and probably incurred and due on the same day, but pleadings do not substitute for proof that the debt sued on in both suits was the same or only one debt, and no proof was offered on that issue. In fact, and as above stated, the pleadings show the suit in Runnels county was for debt alone; whereas the Tom Green county suit was not only for debt, but was also to recover certain personal property and for damages for conversion of certain other personal property by Bray and his associates; and in this connection the judgment in the Tom Green county suit awards a recovery of $4,468.30, but does not recite if it is for debt or damages for conversion of property as alleged, and also awards, in addition, title to certain personal property. See, in this connection, Williams v. Steele, 101 Tex. 382, 108 S. W. 155; Greenway v. DeYoung, 34 Tex. Civ. App. 583, 79 S. W. 603; Martin v. Burns, 80 Tex. 676, 16 S. W. 1072; Treadway v. Eastburn, 57 Tex. 209.
(b) But even if it had been shown that the causes of action were identical, and that the judgment...
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