Long v. Long

• Citation: 269 S.W. 207
• Decision Date: 24 January 1925
• Docket Number: (No. 9492.)
• Parties: LONG v. LONG.
• Court: Court of Appeals of Texas

269 S.W. 207

LONG v. LONG.

(No. 9492.)

Court of Civil Appeals of Texas. Dallas.

January 24, 1925.

Rehearing Denied February 21, 1925.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Suit by Maude Long against Henry L. Long. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

A. C. Hatchell, of Dallas, and Williams & Martin, of Plainview, for appellant.

Henry Wilson, Carden, Starling, Carden, Hemphill & Taylor, and Geo. O. Wallace, all of Dallas, for appellee.

LOONEY, J.

Appellant brings up for review the judgment of the trial court granting an interlocutory injunction. The following statement presents the case:

On October 2, 1924, Henry L. Long, appellant, filed suit in the district court of Briscoe county, Tex., against his wife, Maude Long, for divorce and for the custody of their four minor children. The grounds alleged for divorce were cruel treatment and adultery. Citation was promptly issued and served, the defendant therein appeared by attorney, filed a motion to quash the citation, which was sustained, and the case went over by operation of law to the succeeding term of court, which convenes in April, 1925. Afterwards, on November 4, 1924, Maude Long, appellee, filed this suit in the district court of Dallas county, Tex., against Henry L. Long, appellant, for divorce, on the ground of cruel treatment, in which she sought the custody of their four minor children, alimony, and an injunction, the nature of which will appear hereafter.

The court issued an order requiring appellant to appear on November 22, 1924, and show cause why he should not be ordered to pay alimony and be enjoined in the respects urged by appellee. On November 22, 1924, appellant, in response to the notice and citation, appeared and filed answer to the application for injunction; also a general answer to the suit.

Among other defenses appellant urged a plea in abatement, based on the pendency of the prior suit filed by him against appellee in the district court of Briscoe county for divorce and for the custody of their children. In view of our disposition of the case, it is not deemed necessary to make any further statement in regard to the pleadings.

On hearing, the court overruled appellant's plea in abatement, ordered him to pay appellee $35 per month alimony on the 1st of each month during the pendency of the suit, and to pay in court on the 1st day of December, 1924, for the benefit of the attorneys of appellee, the sum of $250, and then the order proceeds as follows:

"Upon further consideration thereof, it is ordered, adjudged, and decreed by the court that during the pendency of this suit, until otherwise ordered by the court, the care, custody, and control of the plaintiff's children named in the petition, to wit, Juanita, Darwin, J. S., and Beryl Long, be, and the same is hereby awarded to plaintiff, Maude Long, and the defendant is hereby enjoined and restrained from in any way, by legal proceedings or otherwise, interfering with such care, custody, and control during such pendency, except by proper proceedings herein.

"Upon further consideration thereof it is by the court ordered, adjudged, and decreed that the defendant, Henry L. Long be, and he is hereby enjoined and restrained during the pendency of this suit from in any manner interfering, by legal proceedings or otherwise, with the plaintiff's prosecution of this suit, except by proper proceedings herein. * * * It is further ordered, adjudged, and decreed that the plea in abatement interposed by defendant in said original answer be and the same is hereby overruled."

The contention of appellant, in substance, is that the court below erred in overruling his plea in abatement and in granting the injunction for the reason that the court was without right or authority to exercise jurisdiction over the subject-matter of the litigation or over the parties with respect thereto until the termination of the prior suit involving the same subject-matter between the parties pending in the district court of Briscoe county.

Appellee meets this contention with the following propositions: (1) That the two suits, that is to say, the one pending in the district court of Briscoe county in which appellant is plaintiff and appellee is defendant, and the present suit pending in the district court of Dallas county, in which appellee is plaintiff and appellant is defendant, may pend at the same time, although between the same parties and involving the same subject-matter; (2) that the pendency of the prior suit in the district court of Briscoe county cannot be pleaded in abatement of the second suit filed by appellee in the district court of Dallas county.

We are of the opinion that the contention of appellant must be sustained and that of appellee overruled.

The injunction is ancillary to the main suit, and was unauthorized, in view of the pendency of the prior suit. The court should not have exercised jurisdiction over the parties or subject-matter of the litigation after the matter in abatement was brought to its attention by proper plea and proof.

The decisions of the courts of this state are in confusion on the subject of abatement. Some have held that the doctrine of the common law that a suit pending between parties precludes them from maintaining between themselves another suit involving the same cause of action in courts of equal jurisdiction is not enforced in Texas.

The following cases, either directly or inferentially, sustain this view: Payne v. Benham, 16 Tex. 367; Simmang v. Braunagel (Tex. Civ. App.) 27 S. W. 1032; Ellis v. Tips, 16 Tex. Civ. App. 82, 40 S. W. 524; Mutual Life Ins. Co. v. Hargus (Tex. Civ. App.) 99 S. W. 580; Garza v French Piano Co., 59 Tex. Civ. App. 590, 126 S. W. 906; Liberty Milling Co. v. Continental Gin Co. (Tex. Civ. App.) 132 S. W. 856; Hartzog v. Seeger Coal Co. (Tex. Civ. App.) 163 S. W. 1056 (1060); Wilkerson v. Fort Worth & D. C. Ry. (Tex. Civ. App.) 171 S. W. 1041.

The weight of authority, however, and the better view, we think, is in harmony with the common-law doctrine.

It ought to be manifest that, in order to maintain an orderly procedure, and the spirit of comity that should at all times exist between tribunals of equal jurisdiction, when a suit has been commenced in one court, and thereafter one of the litigants institutes a suit against his adversary in another court of equal jurisdiction involving the same subject-matter, the latter should sustain a plea in abatement when timely and properly presented for consideration.

The following cases are directly in point sustaining this view: Goggan v. Morrison (Tex. Civ. App.) 163 S. W. 120; Miller & Vidor Lbr. Co. v. Williamson (Tex. Civ. App.) 164 S. W. 440; Sparks v. National Bank of Commerce (Tex. Civ. App.) 168 S. W. 48; Camp v. First National Bank (Tex. Civ App.) 195 S. W. 217; Phillips v. Phillips (Tex. Civ. App.) 223 S. W. 243; Ward v. Scarborough (Tex. Civ. App.) 223 S. W. 1107. The following, inferentially but substantially, sustain the common-law rule: Stone v. Byars, 32 Tex. Civ. App. 154, 73 S. W. 1086; Trawick v. Martin, 74 Tex. 522, 12 S. W. 216; Cattlemen's Trust Co. v. Blasingame (Tex. Civ. App.) 184 S. W. 574; Drake v. Brander, 8 Tex. 351; Burdett v. State, 9 Tex. 43; York v. Gregg, 9 Tex. 91; Oldham v. Erhart, 18 Tex. 147; Cook v. Burnley, 45 Tex. 111; Arthur v. Batte, 42 Tex. 159; Allen v. Read, 66 Tex. 18, 17 S. W. 115; Bonner v. Hearne, 75 Tex. 248, 12 S. W. 38; McNeil v. Masterson, 79 Tex. 672, 15 S. W. 673; Texas Trunk Ry. v. Lewis, 81 Tex. 1, 16 S. W. 647, 26 Am. St. Rep. 776; Blume v. Case Threshing Mach. Co. (Tex. Civ. App.) 225 S. W. 831; Priddy v. Business Men's Oil Co. (Tex. Civ. App.) 241 S. W. 770.

The reason for the rule was well stated by Judge Speer in Sparks v. National Bank (Tex. Civ. App.) 168 S. W. 49, as follows:

"There appears to be some confusion in the authorities upon this question. The cases of Garza v. Piano Co., 126 S. W. 906, and Liberty Milling Co. v. Continental Gin Co., 132 S. W. 856, appear to support the contention of appellee that the doctrine of the common law that a suit pending between parties precludes them from maintaining between themselves another suit on the same cause of action is not the law in Texas. But those authorities are disapproved in the later case of Goggan & Bros. v. Morrison, 163 S. W. 119, and to our minds a return is made to the better rule that such prior suit will abate a subsequent suit. Not only does this rule avoid the evil of a multiplicity of suits between the parties, which...