Kelly v. Lobit

• Court: Texas Court of Appeals
• Writing for the Court: Graves
• Citation: Kelly v. Lobit, 134 S.W.2d 428 (Tex. App. 1939)
• Decision Date: 07 December 1939
• Docket Number: No. 10875.,10875.
• Parties: KELLY et al. v. LOBIT et al.

134 S.W.2d 428

KELLY et al. v. LOBIT et al.

No. 10875.

Court of Civil Appeals of Texas. Galveston.

December 7, 1939.

Original application by Myrtle E. Lobit Kelly, individually and as guardian for the estate of Joseph Lobit, Jr., a minor, such minor, and another, for a writ of prohibition to prevent the Fifty-Sixth District Court of Galveston County and Charles G. Dibrell, Judge thereof, from trying or further proceeding in a certain cause before trial and disposition of an action by relators against Louis Lobit and others in the 113th District Court of Harris County.

Application dismissed without prejudice.

A. D. Dyess and Franklin & Blanckenbecker, all of Houston, for relators.

Stewart & DeLange and Albert J. DeLange, all of Houston, and Byron Economidy, of Galveston, for respondents.

GRAVES, Justice.

This is an original application filed in this Court by Donald S. Kelly and Myrtle E. Kelly, the latter acting individually and as guardian for the estate of Joseph Lobit, Jr., a minor, and such minor himself, acting also by counsel, as relators, against Hon. Charles G. Dibrell, Judge of the 56th District Court of Galveston County, as respondent, for a writ of prohibition; they hereby seek to prevent such 56th District Court from trying — or further proceeding in any way with — cause No. 54277 on the docket thereof, styled Paul Lobit et al. v. Myrtle E. Kelly et al., until cause No. 246873 in the 113th District Court of Harris County, styled Myrtle E. Lobit Kelly et al. v. Louis Lobit et al., has first been tried and disposed of; the general ground declared upon being that the jurisdictions of such two courts conflict as to parties and subject-matter involved in the suits, hence as to their respective powers in the premises, and that as to such matters not cognizable by both at the same time, the Harris County district court first acquired jurisdiction.

In so far as material, the gist of and parties to the two suits thus brought into opposition were, respectively, as follows:

(1) In that in Harris County, which was filed first, Mrs. Kelly and husband and the minor, Joseph Lobit, III, claiming to own the interest of Joseph Lobit, II, deceased, in the estate of his father, Joseph Lobit, I, sued Louis and Paul Lobit, likewise sons of Joseph Lobit, I, individually and as executors or trustees of their father's estate, seeking an accounting of them as such and a recovery of their claimed interests in such estate, as against all others claiming any interest therein; they alleged that Joseph Lobit, I, long since dead, had willed his property, in part at least to...