Reed v. Reed

Decision Date17 April 1957
Docket NumberNo. 13190,13190
PartiesLorraine C. REED, Appellant, v. David G. REED, Appellee.
CourtTexas Court of Appeals

Matthews, Nowlin, Macfarlane & Barrett, San Antonio, for appellant.

Moursund, Ball, Bergstrom & Barrow, San Antonio, Robert E. Cunningham, El Paso, for appellee.

BARROW, Justice.

This suit for divorce, hereinafter referred to as second suit, was filed by appellant, Lorraine C. Reed, against appellee, David G. Reed, in the 45th Judicial District Court of Bexar County, Texas, on February 1, 1956. Appellee answered by plea in abatement, alleging in substance, that prior to the commencement of second suit, on June 6, 1955, he filed his petition against appellant for divorce in the 65th Judicial District Court of El Paso County, Texas, hereinafter referred to as first suit, which involves the same cause of action, the same parties, the same subject matter and the same issues as second suit; that first suit is still pending, and that trial thereof and judgment therein will finally dispose of the issues presented in second suit. Appellant, answering said plea in abatement, denied that first suit was commenced on June 6, 1955, or at any time prior to the filing of second suit, alleged that appellee did not file such suit with a bona fide intention to obtain service and prosecute his suit, and denied knowledge or notice of the filing of first suit prior to the filing of her suit.

Upon a hearing of the plea in abatement, both appellant and appellee introduced evidence tending to prove their respective contentions. The court, after hearing such evidence, sustained the plea in abatement and dismissed the second suit for divorce. This appeal is from that judgment.

It is not disputed that appellee filed suit for divorce in the 65th District Court of El Paso County, Texas, on June 6, 1955, that appellant filed the second suit in the 45th District Court of Bexar County, Texas, on February 1, 1956, nor that each party plaintiff, at the time of filing the respective suits, had the requisite domicile and residence qualifications to maintain such suits. It is not disputed that both suits involve the same parties, subject matter and issues, that the suit filed by appellee in the 65th District Court of El Paso County is still pending, and trial of that case would be determinative of all controversies and issues involved in second suit filed by appellant against appellee in Bexar County. Appellant contends that the evidence shows as a matter of law that appellee did not file the first suit and exercise diligence to have process issued, that he did not request a waiver of citation, and gave no notice of the suit to appellant; that the great and overwhelming preponderance of the evidence shows that appellee did not file his petition in El Paso County in good faith, or with the intent to prosecute the same; and that the great and overwhelming preponderance of the evidence shows that appellee, after filing the first suit in El Paso County, exercised no diligence to have process issued or to otherwise give appellant notice of the filing of same.

In passing upon appellant's first contention we are to credit all evidence favorable to the trial court's implied finding, and disregard all evidence adverse thereto. Springall v. Fredericksburg Hospital and Clinic, Tex.Civ.App., 225 S.W.2d 232; Henwood v. Neal, Tex.Civ.App., 198 S.W.2d 125; Mortensen v. Mortensen, Tex.Civ.App., 186 S.W.2d 297.

Viewing the evidence in the light of the above rules, we find, in addition to the above undisputed facts, that appellee testified he filed the first suit in good faith with the bona fide intent to prosecute the same; that he informed appellant that he had done so. The testimony of both parties shows that during all the time material to this controversy they contemplated a divorce. On at least one occasion they discussed, but failed to accomplish, a reconciliation. That during the pendency of appellee's suit they negotiated, personally and by correspondence, and through their respective attorneys, in an effort to agree upon the custody of the children. Appellant testified that appellee told her that he was going to get a divorce. A party may testify as to his own intentions. His testimony, however, is not conclusive, but it may be considered along with the other evidence in the case. Tuerpe v. George Saunders Live Stock Commission Co., Tex.Civ.App., 245 S.W. 741 (writ dismissed).

Where, in a hearing before the Court, the evidence favorable to the judgment rendered by the court raises a question of fact on which reasonable minds might differ, the appellate court is not authorized to set aside the findings of the trial court. Poynor v. Varner, Tex.Civ.App., 266 S.W.2d 462; Springall v. Fredericksburg Hospital and Clinic, Tex.Civ.App., 225 S.W.2d 232.

We have concluded that the trial court's judgment has support in the evidence, and that the judgment and implied findings are not contrary to the great and overwhelming preponderance of the evidence.

The judgment is affirmed.

On Motion for Rehearing.

We adhere to our original opinion, but in view of the motion for rehearing presented by appellant's counsel, we feel disposed to write this additional opinion.

Appellant contends that we erred in failing to hold that the evidence disclosed, as a matter of law, that appellee did not commence his suit in the El Paso Court prior to the commencement of appellant's suit, in that he did not cause process to be issued for fifteen months after the filing of his suit. Appellant's contention appears to be based on the fact that appellee did not cause citation to be issued until after the time appellant filed her suit, and that there was an unreasonable delay. This contention cannot be sustained.

In support of her contention appellant submits a number of authorities. All of these cases are on the question of limitation. Each of the cases cited holds that in order to interrupt the running of the statute of limitation it is not enough to file the petition within the required period of time, but that process must be issued and served with diligence, because the statute requires that the action be 'commenced and prosecuted' within the statutory period. Judge Alexander in Buie v. Couch, Tex.Civ.App. Waco, 126 S.W.2d 565, has ably stated the rule and the reason for it in limitation cases, in the following language:

'Revised Statutes, art. 5527, provides: 'There shall be commenced and prosecuted within four years after the cause of action shall have accrued, and not afterward, all actions or suits in court * * * for debt where the indebtedness is evidenced by or founded upon any contract in writing.' The object of this statute in requiring suits to be filed and prosecuted within a fixed time is not only to require plaintiff to definitely commit himself as to whether he intends to demand satisfaction of his claim but to advise the defendant thereof in order that he may prepare his defense and preserve his evidence in support thereof before the evidence is lost by the lapse of time. Notice to the defendant is therefore of vital importance, for otherwise receipts and other physical evidence might be destroyed, or his witnesses might die, or their memories fail before he had notice of the necessity of preserving the testimony. This object is not accomplished by the mere filing of the suit.' (Emphasis added.)

There is nothing in any of these authorities to indicate that in an abatement hearing the suit is not commenced and pending, as against a suit subsequently filed. They hold that failure to promptly and diligently cause process to be issued does not toll the statutes of limitation. In these cases involving the statutes of limitation, could it be said, in the event the defendant failed to plead the statute, that the case was not filed and pending? We think not. On the other hand, in cases where a plea in abatement is urged against a suit subsequently filed, all that is required in that connection is that the first suit be filed with the bona fide intent to prosecute the same. This is a question of fact to be determined by the trier of the facts, whose findings, supported by the evidence, are binding on the appellate court. Powers v. Temple Trust Co., 124 Tex. 440, 78 S.W.2d 951; Ricker v. Shoemaker, 81 Tex. 22, 16 S.W. 645; Long v. Long, Tex.Civ.App. 269...

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4 cases
  • Reed v. Reed
    • United States
    • Supreme Court of Texas
    • 8 Enero 1958
    ...the theory that there was evidence to sustain the implied finding of the latter that the respondent's prior suit was filed in good faith. 303 S.W.2d 460. We take a contrary The respondent's suit was filed June 6, 1955, and that of the petitioner on February 1, 1956, the respondent's plea in......
  • Royal Indemnity Company v. H. E. Abbott & Sons, Inc.
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • 23 Junio 1965
    ...believed that Landers did not intend to steal the truck, could have found no implied permission, such testimony is not conclusive. Reed v. Reed, 303 S.W.2d 460, rev'd. on other grounds, 158 Tex. 298, 311 S.W.2d The witness' own idea of what he had authority to do in a particular instance wa......
  • Fain v. Texas-Hanover Oil Co.
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • 14 Febrero 1962
    ...as to his intent when such becomes a material point of inquiry, such evidence is not conclusive. 17 Tex.Jur. p. 406; Reed v. Reed, Tex.Civ.App., 303 S.W.2d 460, reversed on other issues Reed v Reed, 158 Tex. 298, 311 S.W.2d 628; Tex.Jur. Vol. 10-A, p. 406; Wigmore, Vol. 1, pp. Appellant's f......
  • David Berg & Co. v. Ravkind, 16
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • 30 Enero 1964
    ...the testimony called for a subjective intent of the witness. Such testimony has expressly been held to be admissible. In Reed v. Reed, Tex.Civ.App., 303 S.W.2d 460, reversed on other grounds, 158 Tex. 298, 311 S.W.2d 628, we find the following 'A party may testify as to his own intentions. ......

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