Rieden v. Kothman

• Decision Date: 11 March 1903
• Citation: 73 S.W. 425
• Parties: RIEDEN v. KOTHMAN.
• Court: Texas Court of Appeals

73 S.W. 425

RIEDEN v. KOTHMAN.

Court of Civil Appeals of Texas.

March 11, 1903.

Appeal from Bexar County Court; R. B. Green, Judge.

Action by Frank Rieden against John Kothman. Judgment for defendant, and plaintiff appeals. Reversed. Motion for rehearing overruled.

Geo. Powell, for appellant. Webb & Goeth, for appellee.

FLY, J.

This suit was instituted by appellant against appellee to recover a debt of $301. A plea in abatement, alleging the pendency of another suit involving the same subject-matter, was sustained by the court, and the suit was dismissed.

The plea in abatement is as follows: "Now comes the defendant, and, pleading in abatement to plaintiff's suit, says that before the filing of this suit, to wit, on the 18th day of August, 1900, in this same court, this same defendant was impleaded in a plea of debt in a suit styled `H. Faseler v. John Kothman, Garnishee,' numbered 414 on the docket of this court, involving identically the same matters and issues that are involved in this suit; that said suit was brought against this defendant by reason of the fact that H. Faseler obtained a judgment against Frank Rieden; that, said Rieden being insolvent and not having any property subject to execution, said H. Faseler sued out a writ of garnishment against this defendant, alleging that there was an indebtedness due said Frank Rieden, plaintiff in this case, by reason of the same facts alleged in plaintiff's petition in this case; that a substantial copy of the petition of H. Faseler in said cause No. 414, styled `H Faseler v. John Kothman, Garnishee,' is hereto attached, and marked `Exhibit A,' and made a part of this answer; that said suit No. 414 was tried in the county court of Bexar county, Texas, and that a verdict for the defendant, the garnishee in said suit, was rendered on the 9th day of October, 1901, and that on the same day the court rendered judgment upon said verdict for the defendant, garnishee in said suit, a substantial copy of which judgment is hereto attached, and marked `Exhibit B,' and made a part of this answer; that said cause was appealed to the Court of Civil Appeals for the Fourth Supreme Judicial District of Texas, and that the said cause is there now pending on appeal, styled on the docket of said court, `H. Faseler, Plaintiff in Error, v. John Kothman, Defendant in Error, No. 2,588;' that by reason of said former suit, involving the same matters, this defendant cannot be required to answer or be impleaded in this cause; that by reason of said former suit this defendant, as garnishee therein, may be required to pay to H. Faseler such amount, if any, that this defendant may be indebted to said Frank Rieden. And this the defendant is ready to verify."

The court erred in sustaining the plea in abatement and in dismissing the suit. The rule of law which prohibits the prosecution of two suits at the same time not only requires that they shall be for the same cause of action, but...