Thomas Goggan & Bros. v. Morrison

• Decision Date: 26 November 1913
• Citation: 163 S.W. 119
• Parties: THOMAS GOGGAN & BROS. v. MORRISON et ux.
• Court: Texas Court of Appeals

163 S.W. 119

THOMAS GOGGAN & BROS. v. MORRISON et ux.

Court of Civil Appeals of Texas. Austin.

November 26, 1913.

On Motion for Rehearing, January 28, 1914.

Error to Milam County Court; John Watson, Judge.

Suit by W. A. Morrison and wife against Thomas Goggan & Bros. Judgment for plaintiffs, and defendants bring error. Reversed, and remanded, with instructions.

James B. & Charles J. Stubbs, of Galveston, for plaintiffs in error. W. A. Morrison, of Cameron, for defendants in error.

RICE, J.

On the 12th of July, 1912, as appears from the pleadings, Mrs. W. A. Morrison, while in Galveston, contracted to purchase from Goggan & Bros., a corporation, an Emerson piano, stool, and scarf for the sum of $332.50, executing and delivering to it in payment therefor her personal check on the Citizens' National Bank of Cameron, Tex., for said sum, payable to the order of plaintiff in error, and at the same time signing and delivering to it a shipping order, promising payment therefor in Galveston county, and containing other stipulations of the purchase. On returning to Cameron the next day, she wired plaintiff in error, countermanding said order, and notified said bank not to pay said check, which said telegram was promptly delivered to plaintiff in error, notwithstanding which it shipped said piano, etc., to her address at Cameron, Tex., which she refused to receive. Payment of said check being refused by the bank, plaintiff in error thereafter brought suit in the county court of Galveston county against her and her husband, W. A. Morrison, to enforce payment thereof, alleging that he had acted with her in said purchase and execution of said check; in which suit defendants in error appeared and urged their plea of privilege to be sued in Milam county, which was overruled and cause set down for trial. Thereafter, on the 25th of September, 1912, Morrison and wife brought this suit in the county court of Milam county against plaintiff in error and the Citizens' National Bank of Cameron to cancel said check and shipping order, and to enjoin plaintiff in error from prosecuting its suit and said bank from the payment of said check.

Plaintiff in error on October 7th filed exceptions to the original petition, because it appeared therefrom that the county court of Milam county had no jurisdiction over it, and that it appeared therefrom that its domicile and places of business were in Galveston and elsewhere, but not in Milam county, when said suit was filed, and because it did not appear that the cause of action or any part thereof arose in said county, nor that its principal office was situated therein, or that it had an agent or representative in Milam county. It further excepted on the ground that said petition failed to show that the cause of action sought to be alleged came within any of the exceptions to exclusive venue in the county or counties designated in clause 24 of article 1830, R. S., or in other clauses thereof, or in article 1834 and article 2308 of the Revised Civil Statutes; and further because it failed to state a cause of action against the Citizens' National Bank, and it did not appear to be a necessary or proper party thereto; and likewise filed its plea of personal privilege to be sued in Galveston county, the county of its residence, setting up also in abatement the pendency of the Galveston county suit.

On October 11, 1912, Morrison and wife filed their first amended original petition, in lieu of their original petition, filed September 25, 1912, and to the averments in the latter added the following: That Goggan & Bros., for the malicious purpose of injuring and harrassing them, on August 21, 1912, sued out a writ of garnishment in the Galveston county case, causing same to be served upon the Citizens' National Bank of Cameron, in which bank both plaintiffs had money on deposit, more than sufficient to pay the sum mentioned in the garnishment, and that by service of said writ plaintiff in error, in furtherance of its purpose to annoy them, procured said sums to be impounded in said bank, and thereby became liable to pay them legal interest thereon from August 22, 1912, to the end of this suit, alleging that the issuance and service of said writ was without probable cause and was maliciously sued out in order to injure them; claiming $500 exemplary damages, which was not claimed in their original petition, together with $75 actual damages, which was $25 more than was alleged in their original petition, and pleaded expense and trouble of having to travel to Galveston as additional grounds for exemplary damages, repeating their prayer for injunction.

A jury having been waived, judgment was rendered in the case on the same day the amended petition was filed, against plaintiff in error for $67.15 actual and $100 exemplary damages, and the injunction against it and the bank was perpetuated, and the writ of garnishment declared canceled, as well as the check and contract, and the bank enjoined from answering the garnishment or from paying the money mentioned in the check or any other amount, relieving the plaintiffs from all liability by reason of said contract, check, and garnishment, and enjoining plaintiff in error from transferring both said check and said contract, and requiring that it deposit both in said court for cancellation, from which judgment this writ of error is sued out.

It is urged by plaintiff in error that the court erred in rendering judgment against it for various reasons: First, on the ground that its objections to the jurisdiction of the court and its plea of privilege were not sustained; and second, that it erred in not sustaining its plea in abatement; and likewise contended that neither plaintiffs' original nor amended petition showed any cause of action against it; and further erred in rendering judgment against it on said amended petition, for the reason that the same set up new causes of action, in addition to those alleged in the original petition; and that it nowhere appears in the record that plaintiff in error had notice of the filing of said amended petition, or appeared and answered thereto.

We will now discuss these questions, not, however, in the order named. First, Did the court err in overruling the plea in abatement, setting up the pendency of the Galveston suit? We think so. It clearly appears from the pleadings of defendant in error that another suit was pending in Galveston county between the same parties, involving the same subject-matter, and in which the defendants in error could have asserted, as a defense, the same cause of action set up in the Milam county suit. This being true, we think, as a matter of comity and public policy, it ought to defeat their right to prosecute this suit.

Two courts of concurrent jurisdiction will not, at the same time, entertain a suit between the same parties over the same subject-matter; but the court first obtaining jurisdiction will hold it to the exclusion of the other. 11 Cyc. p. 985, subd. 2; Bonner v. Hearne, 75 Tex. 242, 12 S. W. 38; Texas Trunk Ry. Co. v. Lewis, 81 Tex. 1, 16 S. W. 647, 26 Am. St. Rep. 776; Arthur v. Batte, 42 Tex. 160; Stone v. Byars, 32 Tex. Civ. App. 154, 73 S. W. 1086; McCorkle v. McCorkle, 25 Tex. Civ. App. 149, 60 S. W. 434; State v. Burnett, 9 Tex. 43; Clepper v. State, 4 Tex. 245.

In Cyc., supra, it is said: "Where two actions between the same parties on the same subject, and to test the same rights, are brought in different courts having concurrent jurisdiction, the court which first acquires jurisdiction, its power being adequate to the administration of complete justice, retains its jurisdiction and may dispose of the whole controversy." Again, in 1 Cyc. 21, it is said that: "It is a general principal of the law that the pendency of a prior suit for the same thing; or, as is commonly said, for the same cause of action between the same parties in a court of competent jurisdiction will abate a later suit. The principle on which pleas of another action pending are sustained is that the law, which abhors a multiplicity of suits, will not permit a debtor to be harrassed and oppressed by two actions to recover the same demand, where the creditor can obtain a complete remedy by one of them." It is said further, in the same work (page 22) that: "The rule, however, is not one of unbending rigor or of universal application; nor is it a principle of absolute law. It is rather a rule of justice and equity generally applicable, and always so, where the two suits are virtually alike and in the same jurisdiction." But it is said in 1 Cyc. p. 34, subd. 5, that: "The plea of a prior action pending applies only where plaintiff in both suits is the same person and both are commenced by himself, and not to cases where there are cross-suits by plaintiff in one suit, who is a defendant in the other," citing cases from various states in support of the text. An examination of these cases discloses that some are not applicable, for the reason that they were between different parties; others because the points raised were different in character; some on account of the fact that one was a suit in equity, whereas the other was in a court of law; while others amply support the text. It is contended, however, by defendants in error that this general doctrine does not obtain in Texas, citing in support of their insistence Garza v. Piano Co., 126 S. W. 906; Gin Co. v. Mill Co., 152 S. W. 856; Ins. Co. v. Hargus, 99 S. W. 580. The first two cases are in accord with their contention and should be followed, if announcing the correct doctrine; but to do so, in our opinion, would likely result in such confusion and conflict as justifies us, we think, in declining to follow them. The earlier cases in Texas where the question is discussed seem to hold, as stated in the syllabus in Payne v. Benham, supra, that: "A plea of former suit pending for the same cause of action, if sustained, will not abate the latter suit,...