Home Nat. Bank of Cleburne v. Wilson

• Decision Date: 18 October 1924
• Docket Number: (No. 8666.)
• Citation: 265 S.W. 732
• Parties: HOME NAT. BANK OF CLEBURNE et al. v. WILSON, Judge.
• Court: Texas Court of Appeals

Page 732

265 S.W. 732

HOME NAT. BANK OF CLEBURNE et al. v. WILSON, Judge.

(No. 8666.)

Court of Civil Appeals of Texas. Dallas.

October 18, 1924.

Original application for mandamus and prohibition by the Home National Bank of Cleburne and others, against Louis Wilson, Judge of the Forty-Fourth Judicial District. Relief granted in part.

Coke & Coke and Rosser Coke, all of Dallas, for relators.

Clark & Clark, Amicus Curiæ, of Dallas, for respondent.

JONES, C. J.

This is an original application by the Home National Bank, of Cleburne, W. S. Whaley, and Jos. B. Long, praying that a writ of mandamus issue against Hon. Louis Wilson, judge of the district court of the Forty-Fourth judicial district Dallas county, Tex., commanding said judge to proceed to trial and judgment in cause 52470-B on the docket of said district court, and styled "Home National Bank of Cleburne et al. v. John L. Cleveland et al.," agreeably to the principles and usages of law. Said application prays for the further relief that a writ of prohibition be issued against Hon. Irwin T. Ward, as judge of the district court of the 18th judicial district of Johnson county, Tex., commanding and directing him, as judge of said district court, to refrain and desist from attempting to enforce, against the said Louis Wilson, judge of said court, an injunction that had theretofore issued out of said Johnson county district court, enjoining the said Louis Wilson, as judge aforesaid, from proceeding to trial and judgment in said pending cause in the Forty-Fourth judicial district court, and from entering any order or judgment in said cause other than an order of dismissal.

Judge Wilson has made his appearance in this cause, and through his attorney has filed an answer, setting up the injunction as the reason for his refusal to try said cause, and states he will make no order in such cause as long as the injunction is in force. Said application for mandamus also prays that said writ of prohibition include within its terms the parties plaintiff and their attorneys in said pending cause in said Forty-Fourth judicial district, who were also enjoined. The facts upon which the application for mandamus is based, as shown by the verified pleadings in the case, are as follows:

John L. Cleveland and wife, Annie H. Cleveland, on June 18, 1924, filed a suit in the district court of Johnson county in the Eighteenth judicial district of Texas, against the Home National Bank of Cleburne, seeking to cancel certain promissory notes executed by them and held by the said bank, and also to cancel a deed of trust lien given to secure the payment of said notes. This suit was made returnable in said court on October 13, 1924, and was answerable on the following day as appearance day for that term of the said court.

On June 24, 1924, the Home National Bank, of Cleburne, W. S. Whaley, and Jos. B. Long filed suit in the district court of the Forty-Fourth judicial district in Dallas county, Tex., against John L. Cleveland, Annie H. Cleveland, T. K. Cleveland, and Geo. Cleveland, seeking to recover judgment on the debt represented by said notes, and to foreclose the deed of trust lien. This suit was returnable on the 21st day of July, 1924. The suit filed in the district court of Johnson county was styled "John L. Cleveland et al. v. Home National Bank of Cleburne," and was numbered 12207 on the docket of said court. This suit, for convenience, will hereafter be called the "Johnson county suit"; the suit in Dallas county was styled "Home National Bank of Cleburne et al. v John L. Cleveland et al.," and numbered 52470-B, and will be hereafter called the "Dallas county suit." On July 19, 1924, two days before return day, the defendants in the Dallas county suit appeared and filed their answer, consisting of a plea in abatement and a formal answer to the merits subject to this plea. The defendants in the Johnson county suit did not answer until October 14, 1924, the appearance day for that term of court.

On September 23, 1924, an amended petition was filed in the Johnson county suit, in which Geo. Cleveland and T. K. Cleveland made themselves additional parties plaintiff, and W. S. Whaley, Jos. B. Long, and the American Exchange National Bank of Dallas were made additional parties defendant. In addition to the equitable relief for the cancellation of the notes and liens prayed for in the original petition, this amended petition contained a count for damages in a substantial amount. The cause of action, therefore, was materially changed by this amended petition. The service issued on the filing of amended petition was directed only to the additional defendants, and was made returnable also on the 13th of October, 1924, although at the time of filing this amended petition the Home National Bank of Cleburne, the original defendant, had not answered.

The Dallas county suit, in which a jury was duly taken, was set out of its numerical order, and over the protest of defendants, for the latter part of July, but later was reset for the 13th of October, 1924. The Johnson county suit was duly set for the 20th day of October, 1924.

When the Dallas county suit was called for trial on said 13th day of October, 1924, it went to trial on the plea in abatement. This plea, in substance, was that the two suits embraced the identical subject-matter and identical parties, and that as the filing of the Johnson county suit antedated the filing of the Dallas county suit, the district court of Johnson county acquired jurisdiction to hear and determine the subject-matter of both suits in the Johnson county suit, and that the district court of Dallas county did not have...