Lancaster v. Lancaster, No. 3251

CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas
Writing for the CourtMcDONALD
Citation277 S.W.2d 824
PartiesHorace Grady LANCASTER et al., Appellants, v. Nettle Louise LANCASTER, Appellee.
Docket NumberNo. 3251
Decision Date31 March 1955

Page 824

277 S.W.2d 824
Horace Grady LANCASTER et al., Appellants,
v.
Nettle Louise LANCASTER, Appellee.
No. 3251.
Court of Civil Appeals of Texas, Waco.
March 31, 1955.
Rehearing Denied April 21, 1955.

Sanders & Stanford, Canton, Wynne & Wynne, Wills Point, for appellants.

Justice, Justice & Rowan, Athens, for appellee.

McDONALD, Chief Justice.

This case arises out of a conflict of jurisdiction between the District Court of Henderson County and the District Court of Van Zandt County. On 12 February 1954 plaintiff-appellee Nettie Louise Lancaster filed suit for divorce and division of community property against her husband, H. G. Lancaster, in the District Court of Henderson County. Also included as defendants were H. G. Lancaster's two sons by a prior marriage, Grady and Kenneth Lancaster, and two banks in which it was alleged were funds belonging to the community estate.

Among the property sought to be divided were approximately 200 head of cattle located in Van Zandt County.

The foregoing suit remained on the docket of the District Court of Henderson County.

On 7 August 1954 appellant Addie Lavada Lancaster (who was the first wife of H. G. Lancaster and the mother of Grady and Kenneth Lancaster) filed suit in the District Court of Van Zandt County against H. G. Lancaster, Nettie Louise Lancaster and Grady and Kenneth Lancaster, alleging an interest in the cattle previously mentioned in the suit filed by Nettie Louise Lancaster in Henderson County. Addie Lavada Lancaster sought a partition of the cattle and prayed for the appointment of a receiver to take charge of the cattle. The District Court of Van Zandt County set a hearing on the receivership for 20 August 1954.

On 14 August 1954 (and after being served with citation in the Van Zandt County suit) Nettie Louise Lancaster filed her first amended petition in her divorce case in Henderson County, making Addie Lavada Lancaster a party defendant, and alleging that Addie Lavada Lancaster was fraudulently claiming some interest in the cattle located in Van Zandt County.

Thereafter Nettie Louise Lancaster filed her plea in abatement in the District Court of Van Zandt County, asking that the Van Zandt County suit be abated due to the prior pendency of the Henderson County case against all parties involved in the Van Zandt County case. The hearing on the plea in abatement was set to be heard on 20 August 1954, but was passed by agreement on account of the illness of one of Nettie Louise Lancaster's attorneys and for the further reason the Trial Judge wanted to take a trip on that date.

On 26 August 1954 attorneys for Addie Lavada Lancaster notified attorneys for Nettie Louise Lancaster that hearing in the Van Zandt County suit was set for 3 September 1954.

On 27 August 1954 Addie Lavada Lancaster filed her plea of privilege in the Henderson County suit, asserting her privilege to be sued in Van Zandt County, the county of her residence. Such plea was controverted by Nettie Louise Lancaster, but has not been heard or acted on by the District Court of Henderson County.

On 30 August 1954 Nettie Louise Lancaster filed her second amended petition

Page 826

in her Henderson County divorce suit, in which she made as additional defendants the attorneys for Addie Lavada Lancaster, and asked for a temporary restraining order against all defendants from further proceeding in the Van Zandt County suit. The District Court of Henderson County held that it had theretofore acquired jurisdiction of the same identical cause of action as was pending in Van Zandt County; that it was pending between the same parties; and temporarily restrained all defendants from further proceeding in the Van Zandt County suit. Upon hearing on 5 October 1954 temporary injunction was granted against all defendants (including attorneys) enjoining them from 'further proceeding' in the Van Zandt County suit.

The District Court of Henderson County issued the temporary injunction without requiring the plaintiff-appellee Nettie Louise Lancaster to make any bond.

From the foregoing injunction defendants appeal to this court, asserting: 1) That plaintiff's suit being one for divorce, the District Court of Henderson County had no power or authority to bring in third...

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6 practice notes
  • Indemnity Ins. Co. of North America v. Carrell, No. 3594
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • November 13, 1958
    ...Ward, 116 Tex. 1, 285 S.W. 1063; 11 Tex.Jur. p. 787; Conn v. Campbell, 119 Tex. 82, 24 S.W.2d 813; Lancaster v. Lancaster, Tex.Civ.App., 277 S.W.2d 824, affirmed 155 Tex. 528, 291 S.W.2d 303; Shepperd v. Parr, Tex.Civ.App., 287 S.W.2d 204, W/E Ref. NRE. See also: Insurors Indemnity & In......
  • Lancaster v. Lancaster, No. A-5299
    • United States
    • Supreme Court of Texas
    • May 9, 1956
    ...file an injunction bond. An appeal was taken to the Court of Civil Appeals where the action of the trial court was reversed and remanded. 277 S.W.2d 824. We affirm the judgment of the Court of Civil Appeals. 'The rule is well settled that, where two actions involving the same subject-matter......
  • Schulz v. Schulz, No. 17818
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • February 3, 1972
    ...133 Tex. 1, 123 S.W.2d 306 (Tex.Sup.1939); Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347 (1933); Lancaster v. Lanscaster, 277 S.W.2d 824 (Tex.Civ.App., Waco 1955, writ granted, affirmed 155 Tex. 528, 291 S.W.2d 303 (1956)); Wall v. Wall, 181 S.W.2d 817 (Tex.Civ.App., Amarillo 194......
  • Council of Co-Owners of Saida II Towers Condominium Ass'n v. Texas Catastrophe Property Ins. Ass'n, CO-OWNERS
    • United States
    • Court of Appeals of Texas
    • May 29, 1985
    ...jurisdiction. Jago v. Indemnity Insurance Co. of North America, 120 Tex. 204, 36 S.W.2d 980, 982 (Tex.1931); Lancaster v. Lancaster, 277 S.W.2d 824, 826 (Tex.Civ.App.1955), aff'd, 291 S.W.2d 303 (Tex.1956); Indemnity Insurance Co. of North America v. Carrell, 318 S.W.2d 744, 748-49 (Tex.Civ......
  • Request a trial to view additional results
6 cases
  • Indemnity Ins. Co. of North America v. Carrell, No. 3594
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • November 13, 1958
    ...Ward, 116 Tex. 1, 285 S.W. 1063; 11 Tex.Jur. p. 787; Conn v. Campbell, 119 Tex. 82, 24 S.W.2d 813; Lancaster v. Lancaster, Tex.Civ.App., 277 S.W.2d 824, affirmed 155 Tex. 528, 291 S.W.2d 303; Shepperd v. Parr, Tex.Civ.App., 287 S.W.2d 204, W/E Ref. NRE. See also: Insurors Indemnity & In......
  • Lancaster v. Lancaster, No. A-5299
    • United States
    • Supreme Court of Texas
    • May 9, 1956
    ...file an injunction bond. An appeal was taken to the Court of Civil Appeals where the action of the trial court was reversed and remanded. 277 S.W.2d 824. We affirm the judgment of the Court of Civil Appeals. 'The rule is well settled that, where two actions involving the same subject-matter......
  • Schulz v. Schulz, No. 17818
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • February 3, 1972
    ...133 Tex. 1, 123 S.W.2d 306 (Tex.Sup.1939); Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347 (1933); Lancaster v. Lanscaster, 277 S.W.2d 824 (Tex.Civ.App., Waco 1955, writ granted, affirmed 155 Tex. 528, 291 S.W.2d 303 (1956)); Wall v. Wall, 181 S.W.2d 817 (Tex.Civ.App., Amarillo 194......
  • Council of Co-Owners of Saida II Towers Condominium Ass'n v. Texas Catastrophe Property Ins. Ass'n, CO-OWNERS
    • United States
    • Court of Appeals of Texas
    • May 29, 1985
    ...jurisdiction. Jago v. Indemnity Insurance Co. of North America, 120 Tex. 204, 36 S.W.2d 980, 982 (Tex.1931); Lancaster v. Lancaster, 277 S.W.2d 824, 826 (Tex.Civ.App.1955), aff'd, 291 S.W.2d 303 (Tex.1956); Indemnity Insurance Co. of North America v. Carrell, 318 S.W.2d 744, 748-49 (Tex.Civ......
  • Request a trial to view additional results

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