Leon v. Noble

• Decision Date: 03 November 1950
• Docket Number: No. 2822,2822
• Citation: 234 S.W.2d 454
• Parties: LEON et al. v. NOBLE et al.
• Court: Texas Court of Appeals

Page 454

234 S.W.2d 454

LEON et al. v. NOBLE et al.

No. 2822.

Court of Civil Appeals of Texas, Eastland.

Nov. 3, 1950.

Rehearing Denied Dec. 1, 1950.

Grisham & King, Abilene, for appellants.

Scarborough, Yates, Scarborough & Black, Wagstaff, Harwell, Wagstaff &amp Alvis, Abilene, R. Temple Dickson, Sweetwater, for appellees.

COLLINGS, Justice.

This suit was brought by J. B. Noble against C. E. Leon, Harry Shelton, Polly Shelton and Jim Kelley to recover damages in the sum of $4,590.92 alleged to have been sustained to appellees' automobile and other personal property in a collision. It was claimed by Noble that the damage to his car and property occurred and was proximately caused by the negligent operation of an automobile belonging to appellant, C. E. Leon, who, together with the other defendants named, were alleged to be liable to appellee for such damage by reason of their connection with or interest in the operation of the Leon car. The Travelers Fire Insurance Company intervened, adopting the allegations of Noble's petition and further alleged that at the time of the collision and resultant damage to Noble's automobile, he, Noble, had a police of insurance with the intervenor company in full force and effect, by the terms of which intervenor was obligated to pay, and has paid to appellee Noble, the sum of $1,471 in cash. Intervenor prayed that in the event of recovery by Noble that from and out of any amount so recovered it have judgment for the full sum paid by it to Noble or so much thereof as Noble might recover in damages against defendants who are appellants in this court.

Appellants filed a plea in abatement asking that appellees' petition be dismissed on the ground that all phases of the case had been litigated and judgment entered inprior suits brought in the District Court of the United States for the Northern District of Texas and in the District Court of Nolan County, Texas. The plea in abatement was overruled and appellants thereafter answered to the merits and the case was tried before a jury and, based upon its verdict, judgment was entered against appellants, jointly and severally, in favor of the intervenor, The Travelers Fire Insurance Company, in the sum of $1,350 and in favor of J. B. Noble in the sum of $650.

Appellants thereupon filed a motion for a new trial, setting out, among other things, the following as reasons therefor:

'The court erred in overruling defendants' plea of res adjudicata presented to the Court, wherein the defendants pled that all issues in this case had been tried or could have been tried in previous suits between all parties hereto, in the United States Federal Court at Abilene, Texas, and in this Honorable Court.

'The Court erred in overruling defendants' plea that the plaintiffs' cause of action was barred because of Rule 97 of the Rules of Civil Procedure, because the plaintiff failed to plead as a counter-claim for damages asserted in this suit in a previous suit before this Honorable Court styled J. B. Noble vs. C. E. Leon, et al., and heretofore tried in September of 1948, and final judgment rendered therein, which suit went to trial on the cross-action of these defendants against the plaintiff, J. B. Noble.'

The motion for a new trial was overruled and appellants filed their notice of appeal to this court. Appellants' contention on appeal, as stated in their brief, is that the trial court erred 'in failing to sustain the defendant's plea as to compulsory counter-claim under Rule 97, because plaintiff, under said Rule 97 was required to plead and prove his cause of action as a counter-claim in a suit previously tried before the District Court of Nolan County, Texas, Styled J. B. Noble v. C. E. Leon, et al., No. 6524, and that plaintiff's failure to so plead for his damage in such previous suit barred the plaintiff from thereafter asserting the same cause of action in the present case.'

It appears from the record that the litigation between the parties originated in the United States District Court in Abilene in February, 1948. J. B. Noble brought suit in such court against C. E. Leon and The Travelers Fire Insurance Company to recover for personal injuries to himself and wife and for damages to his automobile by reason of the collision in question. The Travelers Fire Insurance Company was made a party to the suit because it carried collision insurance on the Noble car. The insurance company filed an answer in the Federal Court and asked for judgment against C. E. Leon for any amount it might be held obligated to pay Noble. Leon filed a plea to the jurisdiction of the court because he, as a resident of Texas, was joined as a party defendant with The Travelers Fire...