Johnson v. Avery

Because I am of the opinion that the majority has failed to follow applicable judgments and opinions of the Supreme Court, I respectfully dissent.

In Mitchell v. Allis-Chalmers Mfg. Co., 291 S.W. 1099, Tex.Com. of App., the exact procedural situation was presented as exists here. In holding that the suit last filed had dominant jurisdiction over the parties and subject matter of the suit the Court said:

"The fact that a prior suit is pending in another jurisdiction when a second suit involving the same parties and subject-matter is brought does not automatically deprive the court of jurisdiction of the second suit. Unless the pendency of the suit first filed is set up in the second suit by proper pleading, the abatement of the second suit is waived. Cleveland v. Ward (116 Tex. 1), 285 S.W. 1071, and authorities there cited. We think that, as a corollary of the rule that a party may waive the abatement of the second suit, he may become estopped from urging its abatement, if sufficient grounds are shown upon which to base an estoppel.

If a proposed plaintiff contemplates bringing suit immediately in a given court in which he has the right to bring it, and the proposed defendant, knowing of such intention of the proposed plaintiff, fraudulently induces him to postpone the filing of his suit — the proposed defendant purposing at the time to take advantage of the delay thus fraudulently obtained to forestall the plaintiff's contemplated suit by another suit in different county — the plainest principles of equity and fair dealing require that such defendant be estopped from asserting, as ground for abatement, the pendency of the suit so filed by him in consummation of his fraud. In such a case, when the proposed plaintiff files his suit in the court in which he so contemplated bringing it, such court takes and holds the dominant jurisdiction over the parties and subject-matter of the suit, for the reason the defendant will not be permitted to defraud the plaintiff of the benefits of the full and unhampered jurisdiction of that court which, in good conscience, he is entitled to enjoy.

In the instant suit the notes held by the Allis-Chalmers Company were payable in Potter county. In the absence of the pendency of a prior suit involving the same parties and subject-matter, instituted

by the defendant, Mitchell, in another jurisdiction without deceit having been practiced on the company for the purpose of defeating such right, the said company had the right to bring its suit on the notes in the district court of Potter county. The defendant, Mitchell, undertook to defraud the company of this right in the manner shown. He should not be permitted to avail himself of the fruits of his fraud."

In Russell v. Taylor, 121 Tex. 450, 49 S.W.2d 733, Tex.Com. of App., the same procedural problem was present and the Court stated that it was only necessary to quote from Mitchell v. Allis-Chalmers, supra, to ascertain the correct disposition to be made of the matter . After quoting from such decision, the Court stated:

"In the case at bar it appears that the district court of the 14th judicial district in Dallas county has all the parties in interest before it, though it further appears that the 102d district court in Red River county had filed therein the suit previous to the filing of the suit in the 14th judicial district court in Dallas county, and, under the authority of Cleveland v. Ward, supra, the 102d judicial district court of Red River county would be held to have first acquired jurisdiction of the subject-matter of the suit, but for the situation presented by the filing of the plea in abatement in the 14th judicial district court in Dallas county, and the reply thereto, Which involves questions of fact determinable only by the trial judge in the 14th judicial district court in Dallas county, which questions of fact are necessary to be finally determined by the judge of the latter named court before the question of deminant jurisdiction in one or the other of the said courts can be determined, and in this respect the case at bar differs in its facts from that of Cleveland v. Ward, supra, and Conn et al. v. Campbell, District Judge, supra (119 Tex. 82, 24 S.W.2d 873).

The relator has the right to have his plea in abatement sustained by the trial judge of the 14th judicial district court in Dallas county, unless the respondent corporation, upon the trial before the judge of the 14th judicial district court in Dallas county, shall be able to sustain its allegations of fact, heretofore stated, In which event the law would compel the judge of the 14th judicial district court to overrule the relator's plea in abatement, which would have the effect to give to the 14th judicial district court in Dallas county dominant jurisdiction of the case, though it would not necessarily follow that this action would have the effect to abate relator's suit filed in the 102d judicial court in Red River county, but it would have the effect to postpone any action in that case by the court until the final judgment had been rendered in the case filed in the 14th judicial district court, for the reason that, while the judge of the 14th judicial district court of Dallas county would have the exclusive authority to pass upon these questions of fact, its action would be subject to review upon appeal to the proper appellate court, which appellate court might possibly reach the conclusion that under the facts the district court of the 102d judicial district in Red River county had acquired dominant jurisdiction over the case before the suit was filed in the 14th judicial district court in Dallas county." (Italics mine.)

The Court thereupon issued instructions that further proceedings in the two cases he absolutely controlled by the final disposition of the plea in abatement filed in the second suit.

V. D. Anderson Co. v. Young, 128 Tex. 631, 101 S.W.2d 798, is an identical case in its procedural aspects. There it was contended that the second suit was not filed first due to the fraud of the opposite parties. There Justice Critz, in speaking for the Court said:

"The general rules of law governing cases of this character have been so well settled by the decisions of this court and its commissions that we deem it unnecessary to repeat them here. In the case at bar both the district courts involved have potential jurisdiction of the subjectmatter of this litigation. The real question at issue is which of such courts ought to be allowed to exercise active jurisdiction. In deciding that question, we reannounce the following rules of law:

1. It is the general rule in this state that where a suit has been first filed in a court of competent jurisdiction, and such court has all necessary parties before it, or has the power to bring them before it, it has the prior right to exercise active jurisdiction of such case, and no other court in this state in which such suit is subsequently filed has the right to interfere. 11 Tex.Jur. 787, and authorities there cited; Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063; Conn v. Campbell, 119 Tex. 82, 24 S.W.2d 813.

2. In spite of the above general rule a party may be guilty of such conduct relating to the matter as to estop himself from asserting the prior active jurisdiction of a court in which a suit is first filed over another court in which a suit is subsequently filed involving the same subjectmatter and parties. Russell v. Taylor, 121 Tex. 450, 49 S.W.2d 733; Mitchell v. Allis-Chalmers Mfg. Co. (Tex.Com.App.) 291 S.W. 1099.

* * * * * *

In the case at bar it appears that the district court of Dallas county has all the necessary parties before it to determine the issue of abatement raised in that court. Also, it has all the necessary parties before it to finally try the case in the event the plea in abatement should be overruled. On the other hand, the reply to the plea in abatement has raised fact issues on at least three very important questions, viz.: (a) Whether the Wheeler county district court can subject all necessary parties to its jurisdiction; (b) whether the Wheeler county suit was filed in good faith; and (c) whether the plaintiffs in the Wheeler county suit were enabled to first file the suit in that court by fraud or deceit . The plaintiffs in the Wheeler county case filed plea in abatement in the Dallas county case. Surely they had the right to file such plea and have it passed on, and equally as surely the plaintiffs in the Dallas county case had the right to reply to and contest such plea in abatement, and have such reply and contest passed on. The reply and contest raised pertinent issues of fact. If the Dallas county district court had the power, and was burdened with the duty, to pass on such plea in abatement and reply and contest, it had the power, and was burdened with the duty, to hear and determine the pertinent facts. McCurdy v. Gage, 123 Tex. 558, 69 S.W.2d 56; Powers v. Temple Trust Co., 124 Tex. 440, 78 S.W.2d 951.

The district court of Dallas county did properly exercise its power and jurisdiction to pass on and determine the above plea in abatement, reply thereto, and contest thereof, and all pertinent facts. Such court, in exercising its jurisdiction, overruled such plea in abatement, and its order in such matter, being purely interlocutory, can only be reviewed by an appellate court when a final judgment is rendered in the case. It follows, under the circumstances of this record, that the district court of Dallas county should not be interfered with until it has finally tried the case, and until it has been finally determined whether it was in error in its action in overruling the plea in abatement. Of course this will have the effect of postponing any action in the Wheeler county case until final judgment in the Dallas county case. It may be that on appeal, should there be one, the appellate court will determine that the district court

of Wheeler county should be allowed to hear and determine the litigation in preference to the district court of Dallas county. We do not decide that question, but leave it for final decision when, and if, the Dallas county case is appealed. Russell v. Taylor, supra. (Italics mine.)

The Court thereupon issued appropriate instructions to implement its decision.

That these decisions are currently respected one needs to read only the opinion in Wheeler v. Williams, 158 Tex. 383, 312 S.W.2d 221. See also Darsey v. Darsey, Tex.Civ.App., 196 S.W.2d 524, Galveston, n.w.h. and McCurdy v. Gage, 123 Tex. 558,69 S.W.2d 56, where Judge Sharp for the Texas Commission of Appeals held that the judgment of the second court in ruling on a plea in abatement pleading pendency of a prior suit "will be respected until vacated or set aside by proper procedure, where an effective legal remedy is available."

The majority distinguishes these cases saying, in part, "The injunction was brought under the equity power of the court to protect the appellees, temporarily, from irreparable injury where his remedy at law was inadequate."

The essence, as I understand it, of appellees' complaint is that appellant has brought an unjust, unfounded suit against them. Conceding, but as to which I express no opinion, that such be the case, still equity has no power to intervene for the reason that the legal remedy of defense to the suit is adequate.

The rule is stated in 43 C.J.S. Injunctions § 40, p. 481 as follows:

"Matters that will constitute a defense of which complainant may avail himself in an action pending or threatened against him cannot be made the ground of an injunction to restrain proceedings in such action, unless he alleges and proves special circumstances showing that he may suffer irreparable injury if he is denied the preventive remedy, * * *."

This is the rule in Texas, Lancaster v. Lancaster, 155 Tex. 528,291 S.W.2d 303, and cases therein cited. In Gibson v. Moore, 22 Tex. 611, Chief Justice Wheeler for the Court stated the law to be, 'It is very clear, that matter which will constitute a defense, of which a party may avail himself in a suit pending against him, cannot be made the ground of an injunction to restrain proceedings in the suit .'

There is no suggestion that appellees may not make any defense they desire to make in the suit filed by appellant in the 53rd District Court. The court below, 126th District Court, recognized that there could be a trial of appellant's claims because he expressly provided that appellant could litigate, in His court, 'defensively or affirmatively, such bona fide causes of action, if any they have, as against plaintiffs, arising out of the controversy between the parties hereto.'

The only question presented here is whether this litigation should be in one court or the other. Under the decisions cited above and accepting the findings made on the plea in abatement proceedings in the 53rd Court, trial of this controversy must be held in the 53rd Court to the exclusion of any present right of the 126th District Court to interfere with it, such trial, of course, to be the subject of an appeal if desired.

I would dissolve the injunction and issue instructions to the trial court similar to those found in the cases as above indicated.