Lancaster v. Lancaster

• Decision Date: 09 May 1956
• Docket Number: No. A-5299,A-5299
• Citation: 291 S.W.2d 303,155 Tex. 528
• Parties: Nettie Lou LANCASTER, Petitioner, v. Horace Grady LANCASTER et al., Respondents.
• Court: Texas Supreme Court

Page 303

291 S.W.2d 303

155 Tex. 528

Nettie Lou LANCASTER, Petitioner, v. Horace Grady LANCASTER et al., Respondents.

No. A-5299.

Supreme Court of Texas.

May 9, 1956.

Justice & Justice, Athens, for petitioner.

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

GRIFFIN, Justice.

On February 12, 1954 petitioner filed suit for divorce and division of community property against respondent, Horace Grady Lancaster, in the District Court of Henderson County, Texas. Included in the community property sought to be divided were approximately 200 head of cattle alleged to be located in Van Zandt County, Texas. Two sons of respondent were made parties defendant upon allegations they were claiming to own some interest in the cattle. Citations were duly issued and served on all defendants.

On August 7, 1954, respondent, Addie Lavada Lancaster, the first wife of Horace Grady Lancaster, filed a suit in the District Court of Van Zandt County, Texas, against petitioner and others and alleged that she, Addie Lavada, had an interest in 65 head of cattle, and that Nettie Lou was claiming some interest in such cattle. Addie Lavada Lancaster sought the appointment of a receiver to take charge of the 65 head of cattle which were alleged to be in Van Zandt County. Citation was duly had on petitioner, Nettie Lou Lancaster. Thereafter, on August 14, 1954, Nettie Lou amended her petition in her divorce suit so as to make Addie Lavada a party defendant, alleging that the claim of Addie Lavada for an interest in the 65 head of cattle was fraudulently made. Thereafter, petitioner, Nettie Lou, filed her plea in abatement in the Van Zandt County suit and a hearing on such plea in abatement was set for September 3, 1954. On August 27, 1954, Addie Lavada filed her plea of privilege in the Henderson County suit asking that the cause of action as to her be transferred to Van Zandt County, Texas, where she resided. On August 30, 1954, Nettie Lou filed her second amended original petition against all parties defendant theretofore parties to the Henderson County suit, and, in addition, she made the attorneys for Addie Lavada in the Van Zandt County suit parties defendant. Nettie Lou sought a temporary restraining order and temporary injunction against Addie Lavada and her attorney preventing them from proceeding further with the Van Zandt County suit. Nettie Lou also sought an adjudication of the rights which Addie Lavada and the two sons had in the cattle. The temporary restraining order was issued, due notice given and on September 3, 1954, when the hearing was had on the motion for a temporary injunction, such temporary injunction was granted by the District Court of Henderson County against all defendants, including Addie Lavada's attorneys, restraining them from further proceeding in the Van Zandt County suit. There has been no hearing in the Van Zandt County suit on Nettie Lou's plea in abatement, due to the injunction from the Henderson County District Court. The trial court issued the temporary injunction without requiring Nettie Lou to 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 are brought in different courts having co-ordinate jurisdiction, the court which first acquires jurisdiction, its power being adequate to administer full justice to the rights of all concerned, should retain such jurisdiction, undisturbed by the interference of any other court, and dispose of the whole controversy. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, 1071; Texas Trunk Ry. Co. v. Lewis, 81 Tex. 1, 8, 16 S.W. 647, 648, 26 Am.St.Rep. 776; Way (& Way) v. Coca Cola Bottling Co., 119 Tex. 419, 29 S.W.2d 1067.' McCurdy v. Gage, 123 Tex. 558, 69 S.W.2d 56, 59.

It is further settled that when a suit between the same parties involving the same subject matter is filed in one court and a later suit on the same demand between the same parties is filed in a court of co-ordinate jurisdiction, the proper procedure is for the plaintiff in the prior suit to file a plea in abatement in the second suit and secure a ruling on such plea. As was said by this Court in McCurdy v. Gage, supra, 'If the two cases in controversy involve the same subject-matter, that fact should have been pleaded fully in the Dallas county suit (the suit filed last) and the issue tested out in that court.' 69 S.W. at page 60 (5, 6). (Emphasis added).

In Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, it is recognized that a plea in abatement must be filed in the second suit and proof made in the second court that the two suits are between the same parties and involve the same subject matter. In that case, prior to the application for mandamus and other appropriate writs filed in this Court, a plea in abatement had been filed in the second court, a hearing had thereon, and the plea overruled.

In the case of Powers v. Temple Trust Co., 124 Tex. 440, 78 S.W.2d 951, a suit was filed in Coleman County by Powers against the Temple Trust Co., to cancel certain notes and the lien securing same, and a writ of injunction was asked enjoining the Temple Trust Co. from filing suit for foreclosure of the notes in Bell County, Texas. Later, and before issuance and service of citation or injunction upon Temple Trust Co., it filed suit in Bell County against plaintiffs in the Coleman County suit to foreclose the notes and lien on the land which were the subject matter of the Coleman County suit. Citation in the Bell County suit was promptly served on the plaintiffs in the Coleman County suit. About ten days later the citation and injunction issued in the Coleman County suit were served on the plaintiffs in the Bell County suit. The Coleman County plaintiffs did not file a plea in abatement in the Bell County suit, but urged their injunction issued by the Coleman County court. The Bell County plaintiffs filed a motion in the Coleman County suit to dissolve the injunction theretofore issued. This motion was overruled and an appeal was taken by the Bell County parties. The Court of Civil Appeals, 50 S.W.2d 362, dissolved the injunction which action was affirmed by this Court upon the grounds that the Coleman County plaintiffs had an adequate remedy at law; to wit, to file a plea in abatement in the Bell County suit and secure a ruling by the Bell County court on the plea in abatement. Further grounds for dissolution of the injunction were that the Coleman County plaintiffs had neither alleged nor proved special circumstance, showing that they would suffer irreparable injury unless the injunction was granted. This Court specifically rejected the contention that an injunction should issue from the court first acquiring jurisdiction, enjoining the parties to the second suit from maintaining it, without first filing a plea in abatement in the second suit and without reference to the adequacy of such defense at law. The court discusses Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, and points out that Cleveland v. Ward does not authorize an injunction to be issued from the first court merely because the suit was first filed therein. We said (124 Tex. 440, 78 S.W.2d 953):

'The language quoted, when read in connection with the holding made as above stated, and in connection with other statements in the opinion to the effect that Judge Ward had the power to issue the temporary injunction, means nothing more than that in such cases it is within the power of the first court to issue the writ of injunction, and that such writ is properly issued when a showing of necessity for its issuance is made. There must be something more than mere proof of conflicting jurisdiction to warrant resort to equity. There must be evidence of a necessity for the use of injunction.' (Emphasis added.)

In the case of Coker v. Logan, Tex.Civ.App., 1937, 101 S.W.2d 284(6, 7), 287, wr. ref., wherein an injunction was issued by the District Court of Lubbock County enjoining the prosecution of a suit in Bell County, but no plea in abatement was filed in the Bell County suit, the Court said:

'The appellees herein filed no plea in abatement or defense to the suit against them in the district court of Bell county, and failed to show that such plea or defense, if presented, would have been inadequate. This was essential to obtaining injunctive relief against Joseph N. Coker in Lubbock county.

'In Powers v. Temple Trust Co., 124 Tex. 440, 78 S.W.2d 951, 952, it is said: 'In view of the absence both of allegations and of evidence that plaintiff in error resorted or attempted to resort to his remedy at law, the filing of a plea in abatement in the second suit on account of the pendency of the first suit and the absence of any showing that such remedy would in the peculiar circumstances of the case be inadequate, the Court of Civil Appeals (50 S.W.2d 362) did not err in dissolving the injunction. It should have been dissolved by the trial court. This conclusion is simply the application of the well-settled rule that: 'Matters that will constitute a defense of which complainant may avail himself in a suit pending or threatened against him cannot be made the ground of an injunction to restrain proceedings in such suit, unless he is prepared to allege and prove special circumstances showing that he may suffer irreparable injury if he is denied the preventive remedy.' 32 C.J. pp. 99, 100. See, also, New Amsterdam Casualty Co. v. Harrington (Tex.Civ.App.) 297 S.W. 307."

It is true that Nettie Lou has filed a plea in abatement in the Van Zandt County suit, but there has been no hearing had on such plea. The injunction issued out of the District Court of Henderson County enjoined further proceedings in the Van Zandt County suit. The record in this cause does not...