Lewis v. Schrader

• Decision Date: 24 March 1923
• Citation: 287 F. 893
• Parties: LEWIS et al. v. SCHRADER et al.
• Court: U.S. District Court — Northern District of Texas

287 F. 893

LEWIS et al. v. SCHRADER et al.

United States District Court, N.D. Texas, Dallas Division.

March 24, 1923

W. B Harrell, of Dallas, Tex., for the pleas.

Mike E Smith, of Fort Worth, Tex., opposed.

ATWELL District Judge.

D. D Pitts bought from George Goen an undivided one-ninth interest plus an undivided one-ninth interest in 200 acres of land in Johnson county, Tex., giving his note in part payment therefor. At the time of the maturity of the note Pitts learned that some of Goen's kin claimed that Goen did not own and was not entitled to the interest sold. Thereupon he requested Goen to file suit on the note and to seek a foreclosure of his vendor's lien. After the suit was filed by Goen, Pitts filed a cross-action bringing in all of the Goen kin, who were the children of the first and second Goen marriage. The senior Goen's second wife is now Mrs Schrader.

The probate court of Johnson county, while administering on the estate of Louis Goen, the first husband of Mrs. E. V. Goen, and the father of George Goen, set aside the land as the homestead of Mrs. Schrader. The prayer in the state court suit is as follows:

'The premises considered, these defendants pray that the defendants in this cross-action be cited to answer this cross-action as the law requires, and that on hearing the interests of all the parties in said land be ascertained and established, and if the court shall hold that said land was the community property of Louis Goen and his first wife, then that the plaintiff take nothing by this suit, and that the note sued on be canceled and that they have judgment against the plaintiff for the sum of $861.12, with interest thereon, and the rights of the parties as to the judgment be determined, and that the interests, liens, and equities of all parties hereto in said land be adjusted and settled, and for costs of suit, together with all such other and further relief, both general and special, legal and equitable to which they may be entitled under the facts of the case.'

Pitts claimed that he bought the interest of Goen believing that the property was the separate property of Louis Goen, and that if the same was determined to be the community property of Louis Goen and his wife, E. V. Goen, that he (Pitts) had paid George Goen more money than George Goen's interest in the said estate justified.

Louis Goen and his first wife (and defendant), Mrs. E. V. Goen, had five children, Florida Lewis, Addie Kelley, Stanford Goen, Prentice Goen, and Lula Goen. By his second wife he had four children. After he died, his second wife married again, becoming Mrs. Schrader.

2. After the filing of the state court suit Florida Lewis (F. A. Lewis) and Addie Kelley, joined by three of the children of Stanford Goen, who was dead, intestate, filed this suit in this court, against one of the children of Stanford Goen, deceased, and all of the children of Prentice Goen, also deceased, intestate, and all of the children of Lula Goen, likewise deceased, intestate, and the widow, Mrs. E. V. Schrader, nee Goen. In this court the plaintiffs pray as follows:

'Wherefore plaintiffs pray the court that the defendants be cited to appear and answer this complaint, and that they have judgment for their interests of one-half in said land, and for a partition according to their several interests, and that they have judgment for the partition division of all of said lands and premises as their several interests may be determined by the court, and for possession of their portion of said land that by the judgment of the court may be ascertained and declared to be the property of the plaintiff, and, in the event it may be impracticable to so divide or partition said land, plaintiffs pray that said land be sold under an order of the court, and proceeds of such sale be distributed among the heirs in accordance with their interests and law, and plaintiffs further pray that, in the event it be held for any reason that said land is neither subject to sale or partition at this time, then that the court determine, adjudge, and fix the interests by decree and judgment that plaintiff and defendants have in and to said land. Plaintiffs further allege that out of the estate of Louis Goen and Elizabeth Gertrude Goen, jointly and separately, several of his heirs, plaintiffs and defendants, have received large advances, which plaintiffs pray be taken into account in the partition and distribution of said estate, and that said advances, both principal and interest, be charged and offset against the interests of such heirs as it may be shown they received the same, and plaintiffs further pray for such other and further relief, general and special,' etc.

3. This recital of the pleadings in the two actions shows us that Pitts is a party to the state court suit and not a party to the federal court suit; that Mrs. Schrader is a party to the federal court suit, and not a party to the state court suit; that a partition is sought in the federal court suit, and that no partition is sought in the state court suit; and, probably, that a settlement of the advances made by the parents to the heirs is contemplated in the federal court suit and is not sought in the state court suit.

4. The pendency of a suit, even for the same cause of action, in a state court, furnishes no ground for a plea in abatement to a subsequent action brought by the same plaintiff against the same defendant in a court of the United States, sitting in the same...