Mitchell v. Allis-Chalmers Mfg. Co.
| Decision Date | 02 March 1927 |
| Docket Number | (No. 905-4663.) |
| Citation | 291 S.W. 1099 |
| Parties | MITCHELL v. ALLIS-CHALMERS MFG. CO. |
| Court | Texas Supreme Court |
Action by the Allis-Chalmers Manufacturing Company against Joe Mitchell. A judgment of dismissal was reversed, and the cause remanded by the Court of Civil Appeals (283 S. W. 560), and defendant brings error. Affirmed.
Carl Gilliland, of Hereford, and Paul A. Speer, of Amarillo, for plaintiff in error.
Reeder & Reeder, of Amarillo, for defendant in error.
This suit was filed in the district court of Potter county by the defendant in error, Allis-Chalmers Manufacturing Company, whose office and place of business is in Potter county, against the plaintiff in error, Joe Mitchell, who resides in Castro county, to recover on two series of promissory notes executed by the latter, and for foreclosure of certain chattel mortgages securing the payment of same. The plaintiff in error interposed a plea in abatement of the suit on the ground that two prior suits brought by him against the defendant in error seeking to cancel said two series of notes and the chattel mortgages securing same were pending in the district court of Castro county. Each of said promissory notes, according to its terms, was payable in Amarillo, Potter county, Tex., and all had matured and remained unpaid. In answer to said plea in abatement the defendant in error set up the fraud of plaintiff in error hereinafter described, and prayed for general relief. The trial court, upon hearing the plea and answer thereto and the evidence, sustained the plea in abatement and ordered the case dismissed. The undisputed evidence shows, and the Court of Civil Appeals has found substantially, the following facts:
The notes in controversy were placed by the defendant in error in the hands of its attorney for the purpose of bringing suit thereon. The attorney, on July 27, 1925, had prepared the necessary pleading for filing suit on the notes, and for foreclosure of the chattel mortgages, in the district court of Potter county, and would have filed such suit on that day but for the fraudulent statements and conduct of the plaintiff in error hereinafter stated. On July 27, 1925, before the attorney for defendant in error had actually filed suit on the notes in the district court of Potter county, as he intended to do on that day, the plaintiff in error came to the office of said attorney and told him that he, the plaintiff in error, wanted to avoid litigation and desired to know if the matter could not be adjusted without suit. The attorney submitted to the plaintiff in error two propositions of settlement, one of which was that plaintiff in error should turn back the tractors for the purchase money of which the notes in question were executed — in which event his notes would be canceled and surrendered by the defendant in error; and the other proposition was that the plaintiff in error keep the tractors, make part payment on the notes, and the remaining balance to stand for future payment. The plaintiff in error requested that the filing of the suit be withheld until he could go to his farm in Castro county and have a mechanic to examine there the tractors in question for the purpose of enabling him to determine which of the two propositions to accept. He promised that when he had done this he would return and further take up the matter of settlement with the attorney, for the purpose of adjusting the controversy without litigation, as he wanted to avoid litigation. The attorney granted his request. As a...
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Reed v. Reed
...acts and conduct estop themselves from insisting on a right to trial in the court first acquiring jurisdiction. Mitchell v. Allis-Chalmers Mfg. Co., Tex.Com.App., 291 S.W. 1099; Russell v. Taylor, 121 Tex. 450, 49 S.W.2d 733; V. D. Anderson Co. v. Young, 128 Tex. 631, 101 S.W.2d A plea in a......
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In re HPGM, LLC
...unhampered jurisdiction of that court which, in good conscience, he is entitled to enjoy. Id. at 737–38 (quoting Mitchell v. Allis-Chalmers Mfg. Co. , 291 S.W. 1099, 1100 (Tex. Comm'n App. 1927, judgm't adopted) ). Consequently, to prove entitlement to the inequitable-conduct exception, Pri......
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Johnson v. Avery, 11371
...the majority has failed to follow applicable judgments and opinions of the Supreme Court, I respectfully dissent. In Mitchell v. Allis-Chalmers Mfg. Co., 291 S.W. 1099, Tex.Com. of App., the exact procedural situation was presented as exists here. In holding that the suit last filed had dom......
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Darsey v. Darsey, 11798.
...fraudulently obtained, to forestall the plaintiff's contemplated suit by another suit in a different county. Mitchell v. Allis-Chalmers Mfg. Co., Tex.Com.App., 291 S.W. 1099; V. D. Anderson Co. et al. v. Young, Judge, et al., 128 Tex. 631, 101 S.W.2d In the instant case appellee alleged in ......