Powers v. Temple Trust Co., 1532-6284.

• Decision Date: 20 February 1935
• Docket Number: No. 1532-6284.,1532-6284.
• Parties: POWERS v. TEMPLE TRUST CO.
• Court: Texas Supreme Court

78 S.W.2d 951

POWERS v. TEMPLE TRUST CO.

No. 1532-6284.

Commission of Appeals of Texas, Section B.

February 20, 1935.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by L. G. Powers against the Temple Trust Company. To review a judgment of the Court of Civil Appeals [50 S.W.(2d) 362] dissolving a temporary injunction issued in behalf of plaintiff, plaintiff brings error.

Judgment of Court of Civil Appeals affirmed.

Dibrell & Starnes and J. B. Dibrell, Jr., all of Coleman, for plaintiff in error.

Critz & Woodward, of Coleman, and Jno. B. Daniel, of Temple, for defendant in error.

SMEDLEY, Commissioner.

Plaintiff in error, maker of a series of promissory notes payable to defendant in error, filed suit in the district court of Coleman county, Tex., on November 25, 1931, for the cancellation of the notes and the lien securing them, alleging that the loan contract evidenced by the notes and the deed of trust was usurious and that the principal indebtedness was more than discharged by applying to it interest payments which he had made more than two years before the suit was filed, and by offsetting against it double the amount of interest payments made by him within two years before the filing of the suit. He further alleged that defendant in error was falsely claiming that there was still a balance owing on said notes, and was threatening foreclosure proceedings, and that unless restrained by writ of injunction it would either foreclose under the power of sale contained in the deed of trust, or would institute and prosecute a suit for foreclosure in the district court of Bell county, Tex., or would transfer the notes and lien to third parties and instigate them to institute and prosecute such suit.

On the day the suit was filed the district judge, without notice, granted a temporary injunction restraining defendant in error from transferring the notes and the lien and from foreclosing the deed of trust under the power of sale contained therein and from instituting and prosecuting any suit for foreclosure of the lien in the district court of Bell county, or in any court other than by cross-action in the suit in Coleman county. Injunction bond was filed December 9, 1931, and on that day the writ of injunction was issued. No citation was issued until December 9, 1931. Both the writ of injunction and the citation were served on defendant in error on December 17, 1931.

Defendant in error, on December 5, 1931, after this suit was filed in Coleman county but before citation was issued, filed suit in the district court of Bell county, where the notes were payable, for the recovery of an unpaid balance of principal with interest alleged to be due and for foreclosure of the lien. Citation in that suit, issued the day the suit was filed, was served on plaintiff in error on December 7, 1931.

Defendant in error's motion to dissolve the injunction was heard by the district court of Coleman county and overruled on January 28, 1932. The Court of Civil Appeals on appeal from that order dissolved the temporary injunction. Temple Trust Co. v. Powers, 50 S. W.(2d) 362.

The only question presented here is whether the Court of Civil Appeals correctly dissolved the injunction.

There is no evidence that plaintiff in error filed this suit without a bona fide intention that process be promptly issued and served, and no evidence that the delay in the issuance of citation was attributable to him. In the absence of proof it will not be presumed that the delay in the issuance of citation was at his direction. The suit was filed when the petition was filed with the clerk. The statute imposes upon the clerk the duty of issuing the citation promptly. Tribby v. Wokee, 74 Tex. 142, 11 S. W. 1089; R. S. 1925, art. 2021. For the purpose of deciding the question here presented, therefore, it is to be assumed that jurisdiction over the controversy first attached to the district court of Coleman county.

The subject-matter of the two suits is the same and the parties are the same. The record does not show that plaintiff in error filed a plea in abatement or any other answer in the suit in the district court of Bell county.

It is unnecessary to determine whether the injunction should have been issued when issued, as the appeal was taken from an order overruling a motion to dissolve and when that order was entered the suit in Bell county had been filed. The effect of the order was to enjoin the further prosecution of that suit.

In view of the absence both of allegations and of evidence that plaintiff in error resorted or attempted to resort to his remedy at law, the filing of a plea in abatement in the second suit on account of the pendency of the first suit, and the absence of any showing that such remedy would in the peculiar circumstances of the case be inadequate, the Court of Civil Appeals did not err in dissolving the injunction. It should have been dissolved by the trial court. This conclusion is simply the application of the well-settled rule that: "Matters that will constitute a defense of which complainant may avail himself in a suit pending or threatened against him cannot be made the ground of an injunction to restrain proceedings in such suit, unless he is prepared to allege and prove special circumstances showing that he may suffer irreparable injury if he is denied the preventive remedy." 32 C. J. pp. 99, 100. See, also, New Amsterdam Casualty Co v....