Johnson v. Avery, A--11428
| Decision Date | 16 November 1966 |
| Docket Number | No. A--11428,A--11428 |
| Parties | W. Dave JOHNSON, Petitioner, v. C. N. AVERY, Jr., et al., Respondents. |
| Court | Texas Supreme Court |
Long, Aronson & Coleman, Moore & Johnson, Austin, for petitioner.
McKay & Avery, Charlie Dye, Austin, for respondents.
This appeal presents for determination a question of conflict of jurisdiction between two district courts in Travis County over a controversy involving the same subject matter. The first suit was filed by the respondents in the 126th District Court of Travis County, Texas. Subsequent to the filing of the first suit the second suit involving the same subject matter was filed in the 53rd District Court. Respondents filed a plea in abatement in the second suit asserting the pendency of the first suit. In opposition to the plea in abatement petitioner alleged that respondents fraudulently induced petitioner's attorney to delay the of petitioner's suit. The 53rd District Court overruled respondents' plea in abatement and ordered the parties to proceed to trial on the merits in that court Subsequently, and after a hearing, the 126th District Court issued a temporary injunction enjoining petitioner from taking further action in the 53rd District Court. On appeal to the Court of Civil Appeals for the Third Supreme Judicial District of Texas, that court affirmed the judgment entered by the 126th District Court (the first suit) granting the temporary injunction. One Justice dissented. 400 S.W.2d 825. We reverse the judgments entered in the 126th District Court and the Court of Civil Appeals.
In disposing of the question involved, it is unnecessary to detail the nature of the cause of action. We confine our statement to a brief recitation of the pleadings in and the actions of the courts below.
The holding in the case of Anderson v. Young, 128 Tex. 631, 101 S.W.2d 798 (1937) is controlling here. That case presented a record practically identical to the record presented in this case. In that case, as in this case, the plea in abatement filed in the second suit and the reply thereto raised an issue of fact as to whether the suit filed in Wheeler County, Texas, was filed prior to the suit filed in Dallas County, Texas, as a result of fraud practiced by the plaintiffs in the Wheeler County case on the attorney in the Dallas County case, the contention being that the alleged acts of fraud caused the opposing attorneys to delay the filing of the suit in Dallas County. The real question at issue in Anderson and in the present case is which court ought to be allowed to exercise active jurisdiction. Clearly the 53rd District Court has that right.
While this Court in the Anderson case reannounced the well settled rule of law that where a suit has been first filed in a court of competent jurisdiction, and such court has all necessary parties before it, it has the prior right to exercise jurisdiction of such case, and no other court in which a subsequent suit is filed has the power to interfere, this Court, nevertheless, stated another well settled rule of law which we think operates as an exception to the above stated general rule, which is that '* * * a party may be guilty of such conduct relating to the matter as to estop himself from asserting the prior active jurisdiction of ...
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