Parr v. Hamilton, No. 464

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Writing for the Court: NYE; Hamilton; SHARPE; This is an original proceeding in which we granted leave to file the petition of Relators, Mrs. Elizabeth Frances Parr and her attorneys, who seek a writ of mandamus against Honorable George Hamilton; GREEN
• Citation: 437 S.W.2d 29
• Decision Date: 31 December 1968
• Docket Number: No. 464
• Parties: Elizabeth Frances PARR et al., Petitioners, v. George HAMILTON, Judge of the Court of Domestic Relations, Nueces County, Texas, et al., Respondents. . Corpus Christi

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437 S.W.2d 29 Elizabeth Frances PARR et al., Petitioners,
v.
George HAMILTON, Judge of the Court of Domestic Relations,
Nueces County, Texas, et al., Respondents. No. 464. Court of Civil Appeals of Texas.
Corpus Christi. Dec. 31, 1968.

Wood, Boykin, Rylee & Wolter, Marshall Boykin III, Corpus Christi, for appellants.

Lloyd, Lloyd, Dean & Ellzey, E. G. Lloyd, Jr., Alice, Archer Parr, San Diego, Luther E. Jones, Jr., Corpus Christi, for appellees.

OPINION

NYE, Associate Justice.

This is an original mandamus proceedings by relator Elizabeth Frances Parr, complaining ¹ of George Hamilton, Judge of the Court of Domestic Relations of Nueces County, Texas, seeking to compel Judge Hamilton to proceed with the trial of a pending divorce action. This action presents for determination a question of conflict of jurisdiction between two courts having coordinate jurisdiction over a controversy involving the same subject matter and the same parties.

A statement of the record insofar as is necessary to decide the law question involved, is as follows in its chronological order of events: Mrs. Elizabeth Frances Parr filed suit for divorce in the Court of Domestic Relations of Nueces County, Texas against her husband Archer Parr on the 5th day of April, 1968, alleging that she and her husband had lived in Corpus Christi, Nueces County, Texas, for at least two years prior to the commencement of the suit for divorce. Her husband, Archer Parr, the defendant, answered the suit on May 23, 1968. In July and the early part of August an attempt of a reconciliation was had between the parties which failed.

On August 9, 1968, Archer Parr filed a subsequent suit for divorce in Duval County, Texas, in the 79th District Court of said county. On the 14th day of August, 1968, Mrs. Parr filed a plea in abatement calling to the attention of the 79th District Court, the prior pending suit between the same parties, involving the same subject matter, in the Domestic Relations Court of Nueces County. Archer Parr filed his reply to the plea, alleging lack of good faith, fraud and estoppel on the part of Mrs. Parr. ²

A hearing on the plea was had on the 17th day of September, 1968 before the Honorable John H. Miller, Judge Presiding in the Duval County District Court. The court, after hearing the evidence, overruled the plea in abatement and restrained and enjoined Mrs. Parr and her attorneys

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from pursuing and prosecuting the first action pending the final disposition of this cause now pending in the Duval District Court. Mrs. Parr excepted to the court's ruling and gave notice of appeal to the Court of Civil Appeals, Fourth Supreme Judicial District, sitting at San Antonio, Bexar County, Texas.

On September 20, 1968, and again on the 25th day of September, 1968, the judge of the Court of Domestic Relations for Nueces County refused to consider whether the husband Archer Parr was in contempt of the court's previous interlocutory orders and refused to set the case for trial. In fact the court removed the same from the trial docket. Whereupon, Mrs. Parr filed her application for a writ of mandamus in this the Court of Civil Appeals for the 13th Supreme Judicial District, requesting that we command the Honorable George Hamilton, Judge of the Court of Domestic Relations to proceed with the trial of the first suit for divorce.

Relator, Mrs. Parr, filed as an exhibit in this proceeding, the statement of facts and record of the plea of abatement proceedings in the Duval County District Court. She admits that although Archer Parr alleged fraud and estoppel, there was absolutely no evidence in the record to support these allegations.

Where a suit has been first filed in a court of competent jurisdiction and such court has all the necessary parties before it, it has the prior right to exercise active jurisdiction of such case and no other court in this State in which a subsequent suit is filed has the right to interfere. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926) and V. D. Anderson Co. v. Young, 128 Tex. 631, 101 S.W.2d 798 (1937).

Where a second suit has been filed in a court with co-ordinate authority, and in order to prevent such court from exercising active jurisdiction, it is necessary to seasonably file a plea in abatement setting out the prior jurisdiction. Cleveland v. Ward, supra. This plea may then be contested...