(concurring).
I agree with appellee that the Trial Court could, in the exercise of its equitable jurisdiction and powers, enjoin appellant from prosecuting the New Mexico suit. 21 C.J.S. Courts § 554, 43 C.J.S. Injunctions §§ 48, 49.
This power of a court should be exercised sparingly, not capriciously, and not unless a clear equity is presented requiring the interposition of the court to prevent manifest wrong and injustice. 21 C.J.S., supra.
In my opinion, there is insufficient equity on the side of appellee to warrant issuance of the injunction under the rule stated above.
The basic facts are:
Appellant's original petition (Cause No. 116,389) complaining of appellee and another was filed in the court below on December 21, 1959. Appellee was alleged to be a resident of Travis County.
On December'22, 1959, the Clerk of the Court issued a nonresident notice for service on appellee in Albuquerque, New Mexico. This notice was served December 24, 1959, and the return of service was filed in the court below February 4, 1960.
Subsequently, the exact date not being shown, appellant requested an interlocutory default judgment against appellee which was refused.
Subsequently, and again the dates are missing, appellant attempted to procure permission from the Federal District Courts in Austin, El Paso and San Antonio, Texas, and in the Circuit Court of Appeals at New Orleans to sue appellee on a pauper’s oath. These efforts failed.
Subsequently, appellant undertook to obtain permission from a Federal District Court in New Mexico to sue appellee on a pauper’s oath. After several unsuccessful efforts, this permission was obtained and the suit was filed on April 18, 1960, in the *174United States District Court, District of New Mexico.
Two days afterwards, April 20, 1960, ap-pellee filed an appearance in the court below. He was served in the New Mexico suit on April 25, 1960.
During the proceeding below, from which this appeal comes, the following occurrence is reflected by the record:
“The Court: Is there anything else, now, Mr. Morris, that you want to tell the Court about what you have done or are planning to do in New Mexico? You have asked the Court here to stop this suit and hold it up until you can try the suit out in New Mexico against ' Dr. Rousos by himself. A. That motion wasn’t granted. I suppose I could dismiss Dr. Rousos in this Court and then there wouldn’t be—
“The Court: But you haven’t dismissed him up to this time, have you? A. No.
“The Court.: No. A. I would have no objection to dismissing him, and . that would be what I would want to do if the motion—
“The Court: That is what you would want to do ?
“Mr. Kerns Taylor: We are asking for affirmative relief, Your Honor.
“The Court: I know what you are asking for. T am just giving this man now a chance to tell me why I should-n’t treat him like any other litigant is treated when he goes to try to set the whole country afire with one little lawsuit.”
One of the grounds upon which appellee sought injunctive relief was to prevent a multiplicity of suits, yet the above colloquy discloses that appellee presented an objection to dismissal of one of the two suits which the record shows have been filed against him. The validity of this objection is not before us.
When I consider that appellee is objecting to being sued in his home State and the fact that he did not file his appearance in the court below, which was essential to a personal judgment against him, as long as appellant was unsuccessful in his attempts to sue him elsewhere, and his objection to a dismissal of this suit, I find myself unable to agree that he is entitled to the equitable relief he .seeks.
I concur in the majority judgment.