Lancaster v. Lancaster, No. A-5299

CourtSupreme Court of Texas
Writing for the CourtGRIFFIN
Citation291 S.W.2d 303,155 Tex. 528
Decision Date09 May 1956
Docket NumberNo. A-5299
PartiesNettie Lou LANCASTER, Petitioner, v. Horace Grady LANCASTER et al., Respondents.

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.

[155 Tex. 530]

Page 304

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

Page 305

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, [155 Tex. 532] 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

Page 306

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.

[155 Tex. 533] 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...

To continue reading

Request your trial
71 practice notes
  • Plains Growers, Inc. v. Jordan, No. B--4449
    • United States
    • Supreme Court of Texas
    • October 30, 1974
    ...we have declared void a judgment of injunction rendered without the filing of a bond as required by Rule 684, Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303. . . It has been the policy of this Court to accept and exercise our mandamus jurisdiction in cases involving direct attacks on ......
  • Reed v. Reed, No. A-6442
    • United States
    • Supreme Court of Texas
    • January 8, 1958
    ...Co., 119 Tex. 419, 29 S.W.2d 1067; Thompson v. Fulton Bag & Cotton Mills, Tex.Sup., 286 S.W.2d 411; Lancaster v. Lancaster, Tex.Sup., 291 S.W.2d 303. But to prevent the second court from exercising an active jurisdiction to try the case the parties must make known to the court by plea in ab......
  • Oil Field Haulers Ass'n v. Railroad Commission, No. A-9780
    • United States
    • Supreme Court of Texas
    • June 3, 1964
    ...Inc., is a corporation in the nature of a trade association with no justiciable interest in the litigation. In Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, 308, we held void a writ of temporary injunction where no bond was required or given; but in Ex parte Coffee, 160 Tex. 224, 32......
  • Freeman v. Freeman, No. A-7234
    • United States
    • Supreme Court of Texas
    • July 29, 1959
    ...we have declared void a judgment of injunction rendered without the filing of a bond as required by Rule 684, Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303. Moreover, respondent was not only denied his day in court but the probate of the will of the decedent was set aside and a final......
  • Request a trial to view additional results
71 cases
  • Plains Growers, Inc. v. Jordan, No. B--4449
    • United States
    • Supreme Court of Texas
    • October 30, 1974
    ...we have declared void a judgment of injunction rendered without the filing of a bond as required by Rule 684, Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303. . . It has been the policy of this Court to accept and exercise our mandamus jurisdiction in cases involving direct attacks on ......
  • Reed v. Reed, No. A-6442
    • United States
    • Supreme Court of Texas
    • January 8, 1958
    ...Co., 119 Tex. 419, 29 S.W.2d 1067; Thompson v. Fulton Bag & Cotton Mills, Tex.Sup., 286 S.W.2d 411; Lancaster v. Lancaster, Tex.Sup., 291 S.W.2d 303. But to prevent the second court from exercising an active jurisdiction to try the case the parties must make known to the court by plea in ab......
  • Oil Field Haulers Ass'n v. Railroad Commission, No. A-9780
    • United States
    • Supreme Court of Texas
    • June 3, 1964
    ...Inc., is a corporation in the nature of a trade association with no justiciable interest in the litigation. In Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, 308, we held void a writ of temporary injunction where no bond was required or given; but in Ex parte Coffee, 160 Tex. 224, 32......
  • Freeman v. Freeman, No. A-7234
    • United States
    • Supreme Court of Texas
    • July 29, 1959
    ...we have declared void a judgment of injunction rendered without the filing of a bond as required by Rule 684, Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303. Moreover, respondent was not only denied his day in court but the probate of the will of the decedent was set aside and a final......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT