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., *463269 S.W. 207; 1 Tex.Jur. 102, § 72. See also, Owen v. City of Eastland, 124 Tex. 419, 78 S.W.2d 178; Southwestern Life Ins. Co. v. Sanguinet, Tex.Civ.App., 231 S.W.2d 727, 731; Klemm v. Schroeder, Tex.Civ.App., 204 S.W.2d 675, 678; Rule 22, Texas Rules of Civil Procedure; Cameron v. Cameron, 235 N.C. 82, 68 S.E.2d 796, 31 A.L.R.2d 442. These cases clearly draw the distinction between the mere filing of a suit and the diligence required to toll the statutes of limitation.
Appellant’s motion for rehearing is overruled.