Reed v. Reed

Decision Date08 January 1958
Docket NumberNo. A-6442,A-6442
Citation311 S.W.2d 628,158 Tex. 298
PartiesLorraine C. REED, Petitioner, v. David G. REED, Respondent.
CourtTexas Supreme Court

Matthews, Nowlin, Macfarlane & Barrett, Lewis T. Tarver, Jr., San Antonio, for petitioner.

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

GARWOOD, Justice.

In this divorce suit brought by our petitioner Mrs. Reed in Bexar County, and of which we have jurisdiction by reason of a dissent in the Court of Civil Appeals, the sole question for decision is whether the trial court properly sustained the plea in abatement of the respondent-defendant husband based on the pendency of a prior divorce suit filed by him against our petitioner in El Paso County. The petitioner's contest of the plea was based largely on the failure of the respondent to request or procure issuance to citation in his El Paso suit for some fifteen months and until after the petitioner's later suit was filed and citation therein served. The Court of Civil Appeals upheld the trial court on 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 view.

The respondent's suit was filed June 6, 1955, and that of the petitioner on February 1, 1956, the respondent's plea in abatement being, of course, directed against the latter. Upon filing the earlier suit the respondent made no request of the petitioner for a waiver of citation at any time, and did not seek issuance of citation for some fifteen months thereafter, when it was finally issued and served in the latter part of August, 1956, following filing of the petitioner's suit on February 1, 1956, and service of process therein on the respondent on August 8, 1956.

The respondent has not contended that the petitioner's suit itself was not filed in good faith or prosecuted with diligence. He does not even contend that his own suit, after filing, was prosecuted with diligence. His position is exactly that taken by the majority of the Court of Civil Appeals, to wit, that the only issue is whether at the time his petition was physically filed he intended to have process issued and served and to prosecute the suit to judgment; and that the implied finding of the trial court to this effect is supported by evidence. Admittedly the only evidence thus referred to is the testimony of the respondent himself in which he answered 'Yes, sir' to a leading question from his own counsel as to whether, at the time his El Paso Attorney filed the earlier suit, he, the respondent, intended 'in good faith to get out service in that case and prosecute that case in El Paso to final judgment.' Everything else in the record tends to contradict rather than corroborate this statement of his intention, except his own further testimony, disputed by that of the petitioner, to the effect that a day or two before his suit was to be filed he told her in San Antonio that it had been filed.

The only cases involving pleas of prior action pending which have been cited to us might seem to assume the basic rule to be as contended by the respondent husband, to wit, that the prior action is or is not a pending action according to whether it has or has not been 'commenced' (see Rule 22, Tex.Rules Civ.Proc.) and that a suit is or is not 'commenced' according to whether it was or was not physically filed with the intention to procure the issuance and service of process and to prosecute the suit to judgment. For example, in V. D. Anderson Co. v. Young, 128 Tex. 631, 101 S.W.2d 798, although we in effect sanctioned the overruling of an otherwise valid plea in abatement on the ground of estoppel arising from fraud in connection with the filing of the earlier suit, we nevertheless stated that '* * * as a general rule, a suit is commenced by filing a petition with the bona fide intention to prosecute it to judgment, * * *.', adding, nevertheless, that 'the mere physical filing of the petition is not sufficient to oust the court in which the same suit is subsequently filed of active jurisdiction.' 101 S.W.2d 800-801. Similar language is found in the similar case of Russell v. Taylor, 121 Tex. 450, 49 S.W.2d 733, 737, although the language in the Russell case is somewhat more specific in describing the necessary intention as including the intent 'to obtain service'. See also Powers v. Temple Trust Co., 124 Tex. 440, 78 S.W.2d 951; Long v. Long, Tex.Civ.App., 269 S.W. 207, 210; Southwestern Life Insurance Company v. Sanguinet, Tex.Civ.App., 231 S.W.2d 727. In the two latter cases, the court, in holding the prior suit to take precedence over the later one, states in broad terms that a suit is deemed to be commenced when filed with intent to get out citation and prosecute the case to judgment. The relevant observation in Powers v. Temple Trust Co., which rather discounts the failure of the plaintiff in the earlier suit to get out citation, may no doubt itself be discounted, since it refers to Art. 2021, R.C.S.1925, imposing a more or less absolute duty of the clerk to issue citation, and that statute has since been replaced by the somewhat contrary provisions of Rule 99, Tex.R.Civ.Proc.

None of these decisions are closely in point on the facts with the instant case. None of them involved the element of long delay in prosecuting the earlier suit prior to the filing of the later one, while those which give priority to the later suit did so on the ground of estoppel for fraud or similar conduct on the part of the earlier plaintiff. None of them clearly indicate whether the rule of 'good faith' in the filing of the earlier suit is or is not intended to be the same as that applied in cases involving the tolling of the statute of limitations by suit, nor do we know of any decision dealing expressly with this latter question, although in Russell v. Taylor, supra, the court evidently did rely on our decision in Ricker, Lee & Co. v. Shoemaker, 81 Tex. 22, 16 S.W. 645, which was a limitations case.

However, such language in the above cited cases as might be argued to support the rule contended for by the respondent could hardly have been intended to apply to various readily imaginable fact situations not before the court, in which the mere undisclosed intent of the filer of the earlier suit at the time of delivering the petition to the clerk would seem to be a rather dubious that in determining whether that suit should prevail over one later filed by the opposing party.

For example, if the first filer, at the moment of filing, admittedly did not have an intent to get out process or prosecute the suit, but within a few days thereafter acquired such an intent and actually had process served prior to the filing of the second suit, his plea in abatement to the latter would seem ordinarily to be good. Conversely, it would appear reasonable to hold that an earlier suit, originally filed with full intent to get out process and prosecute the matter to judgment but later in effect abandoned, should not ordinarily prevail over a later suit filed after such abandonment might be said to have occurred. As reflected in Bevil v. Johnson, Tex., 307 S.W.2d 85; reversing Johnson v. Bevil, Tex.Civ.App., 304 S.W.2d 953, a suit may properly be dismissed for past lack of diligence in its prosecution, notwithstanding that the plaintiff's objection to the dismissal at the corresponding hearing was in effect a manifestation of his intent to prosecute it (thereafter, at least) to judgment. It would seem that if a given set of facts justifies dismissal of a suit over the protest of the plaintiff that he wishes to prosecute it, the same facts would also justify subordinating the same suit to a later one filed by the opposite party involving the same subject matter.

In other words, in the matter of pleas of prior action pending, the test of 'good faith' at the time of physical filing of the earlier suit should not always apply, the result being that the plea in abatement may be defeated by reason of matters accruing subsequent to the actual filing of the earlier suit. From this it seems in turn to follow that in cases of the same general type as the instant case, the governing rule may well be substantially the same as that applied in cases involving tolling of the statute of limitations by suit.

We see no serious objection to a rule such as that last stated. There can hardly be any important difference between the policy behind the rule in the limitation cases and a policy which in effect would impose a kind of limitation upon pleas in abatement for prior action pending. One may, of course, argue that for social reasons the plaintiff in a divorce case should not be discouraged from delaying prosecution of his ealier suit. But we can hardly say as a matter of our own knowledge that such an otherwise illogical exception for divorce cases would cause a materially lesser number of breaking homes to be lastingly broken than would otherwise be the case. It would seem rather speculative to say that it would. The question would arise only in the rather exceptional case in which the spouses reside in different counties; and even in these exceptional cases, the original plaintiff, having gone so far as to retain counsel and file suit, no doubt usually has citation issued and served promptly, without regard to whether such is or is not necessary to forestall a later suit by the other spouse. Moreover, it could be that a rule requiring diligence in getting out citation and prosecuting the suit will itself have the socially desirable effect of postponing the filing of all suits in instances in which there is some chance of reconciliation.

Now, turning to the limitations cases, these themselves sometimes state the rule in terms not altogether clear. In holding the statute not to have been tolled by suit, they sometimes speak as if the...

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    ...its lack of intent to prosecute the first lawsuit by an unreasonable delay in procuring a citation. Curtis, 511 S.W.2d at 267; Reed v. Reed, 311 S.W.2d 628 (1958).6 The required standard of diligence in procuring citation and service is "that diligence to procure service which an ordinarily......
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