Statement of the Case.
MONROE, O. J.It appears from the application herein and the returns thereto made by the judge of the district court and the West Louisiana Bank, made respondents:
That relator is a resident of Texas; that on March 8, 1920, the bank applied to the district court for the parish of Ascension for a writ of seizure and sale, directing the sheriff of that parish to seize certain immovable property belonging to relator, and therein situated, in satisfaction of relator’s past-due note for $25,000, interest and attorney’s fees, secured by mortgage thereon; it being alleged in the petition for the writ that the note was held as collateral security for the payment of other past-due notes of relator held by the bank, as follows, to wit:
(a) Note for $10,000, with interest and attorney’s fees, dated July 17, 1919, due September 1, 1919.
(b) Note for $18,800, with interest and attorney’s fees, dated July 17, 1919, due September 1, 1919.
(cj Note for $1,500, interest and attorney’s fees, dated June 21, 1919, due four months after date.
(d) Note for $4,500, interest and attorney’s fees, dated July 17, 1919, due October 1,1919.
(e) Note for $500, interest and attorney’s fees, dated June 21, 1919, due on demand.
That relator obtained an injunction, without bond, from the court in Ascension, prohibiting the seizure, upon the allegations that the note for $10,000 above mentioned as item (a), was secured by his mortgage note for the same amount and the note of the Pelican Construction Company for $7,800, and that the other notes above mentioned were secured by other collaterals; that the note of $25,000 sued on was obtained by the bank through fraud, in that it was given to one of the directors, upon his advice, for purposes well understood by him, and was by him delivered to the bank without relator’s knowledge or consent, and that relator would not have consented that it should be used as security for the notes above itemized; that said notes have been paid and extinguished by the foreclosure on, and sale and conversion of, the collateral attached thereto, and that relator is not indebted to said bank in any amount whatever; and that the issues thus presented are still pending and undecided in that court.
It further appears that on or about March 24, 1920, the bank obtained from the district court for the parish of Beauregard a writ directing the sheriff to seize and sell immovable property belonging to relator in that parish, in satisfaction of his past-due note, secured by mortgage thereon, for $10,000, with interest, etc., and that relator obtained an injunction, without bond, prohibiting the *207execution of tliat writ, upon the sworn allegation “that the original debt for which said mortgage note had been given as collateral had been paid and extinguished”; and that the bank, in answering the petition for injunction, set up a demand in reconvention for a personal judgment against relator for the whole amount represented by said original notes, aggregating $35,300, to which demand relator pleaded an exception to the jurisdiction, on the ground that, being a resident of Texas and having come into the court of necessity, for the protection of his property, and not voluntarily, he was not subject to its jurisdiction for the purposes of the demand in reconvention, and, should that plea be overruled, he pleaded lis pendens, relying upon the pendency of the suit in the parish of Ascension. Both exceptions having been overruled, he made the application, now being considered, to this court, for a writ of prohibition.
Further facts disclosed by the evidence seem to indicate that plaintiff is trifling with the courts in order, it is to be presumed, to gain time. The answer and demand in re-coa-vention was fixed for May 28 and refixed for June 30, whereupon relator took a non-suit on his petition for injunction; and the seized property was advertised to be sold under the original order. On August 5, however, relator obtained a second injunction staying the sale, and, after further pleadings, the case was set for October 8, when it was continued, on motion of relator’s counsel, to October 23, when he again took a nonsuit, and the property was again advertised; and on December 3, relator obtained a third injunction, on the same plea (of payment) and without bond. The case was then set' for December 17, when another continuance was granted, to give relator time to get his witnesses, or their depositions; and upon January 10, the day then fixed, it appeared that relator had not caused the orders for the taking of testimony to be executed. All of which, though, so far as we know, within the law, appears to be a mere travesty upon the administration of justice.
Opinion.
[1] As to the ruling of the district court, which has been brought here for review, we find no error therein. Relator being plaintiff in injunction, alleging that the instrument sued on had been paid by reason of the payment of the other obligations, for which it had been given as collateral security, the reconventional demand for a personal judgment on those other obligations was most intimately connected with the main demand. But, even if that were not so, the court was vested with jurisdiction, since the law declares that—
“When' the plaintiff [meaning, in this case, plaintiff in injunction] resides out of the state, * <! * or * * * in a different parish from the defendant, said defendant may institute a demand in reconvention against him for any cause. * * * ” O. P. 375, amended and reenacted by Act 50 of 1886.
The law thus referred to draws no distinction between those who go into court through necessity to protect or to assert their rights and these who go in for other reasons, if such other there be; the idea being that, if each of two persons has a claim against the other and they reside in different places, the one who is sued shall have the right to assert his claim at the same time and in the same forum that he is compelled to defend against the claim of the other. State ex rel. Pflug v. Judge, 35 La. Ann. 767.
[2] The plea of lis pendens was properly overruled, because, in the first place, it was not asserted at the proper time, i. e., when, by his petitions for injunction in the district court for the parish of Beauregard, plaintiff himself presented to that court the issue of payment vel non of the note sued on. Píe could not thus invoke the jurisdiction of the *209court for the decision of that issue, and then defeat it by setting up the pendency of the same issue in another' court. In the second place, the question of relator’s personal liability, presented by the reconventional demand, had not been put at issue in the district court for the parish of Ascension, and the plea was not sustainable by the suit relied on to sustain it.
The rule nisi and staying order herein issued are therefore recalled and rescinded, and this proceeding is dismissed, at the cost of the applicant.
PROVOSTY, J., dissents. DAWKINS, X, concurs in the decree.