(concurring).
This is an original proceeding in which we granted leave to file the petition of Re-lators, Mrs. Elizabeth Frances Parr and her attorneys, who seek a writ of mandamus against Honorable George Hamilton, Judge of the Court of Domestic Relations of Nueces County, Texas, commanding him to proceed with the trial of a divorce case and other matters therein involved filed by Relator Elizabeth Frances Parr on April 5, 1968 against Respondent Archer Parr, and for a writ of prohibition against Honorable John H. Miller, sitting as Judge of the 79th Judicial District Court of Duval County, and Honorable Woodrow C. Laughlin, the regular Judge of said Court, commanding them to cease and desist in a subsequent divorce suit filed in the latter court by Respondent Archer Parr from further interfering with the jurisdiction of the Court of Domestic Relations of Nueces County by orders in the Duval District Court overruling Mrs. Parr’s plea in abatement or for injunctive or other relief. Archer Parr and his attorneys were also named as respondents in this proceeding.
Judge Hamilton refused to proceed in the Nueces County suit after Judge Miller, sitting in the Duval County suit, conducted a hearing and entered an order overruling a plea in abatement filed therein by Mrs. Parr. That plea, among other things, contended that her suit filed in Nueces County was a prior action pending; that the parties, subject matter and issues were the same as in the Duval County suit; and that the Duval suit filed by Respondent Archer Parr should be “abated and dismissed.” In the Duval suit Mr. Parr filed a reply to the plea in abatement of Mrs. Parr, alleging several grounds in support of his position that her plea should be overruled. One of such grounds was that “When Elizabeth Frances Parr filed cause No. 96899, Elizabeth Frances Parr v. Archer Parr, in the Court aforesaid in Nueces County, Texas, she did not then and does not now possess or have a good faith intention to prosecute said suit to judgment.” The fact issues raised by the plea in abatement and the reply thereto were required by law to be tested in the Duval suit. Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, 305 (1956). The order of the Duval District Court overruling the plea in abatement filed by Mrs. Parr, impliedly resolved the tendered fact issues in favor of Mr. Parr, and in effect found, among other things, that Mrs. Parr *33did not have a good faith intention to prosecute the Nueces County suit to judgment. The legal effect of that finding was that the suit filed by Mrs. Parr in Nueces County was never legally commenced. V. D. Anderson Co. v. Young, 128 Tex. 631, 101 S.W.2d 798, 800 (1937), followed in Johnson v. Avery, 414 S.W.2d 441 (Tex.Sup.Ct.1966). Accordingly, under such finding, the Duval Court had the right to exercise active jurisdiction and had the dominant jurisdiction to decide the Parr divorce case. The order of the Duval Court overruling the plea in abatement, being interlocutory and non-appealable in character, is subject to review by the appellate court having jurisdiction of the case when a final judgment is rendered therein. Pending final disposition of the Duval County suit, the suit filed by Mrs. Parr in Nueces County is postponed by operation of law. Anderson v. Young, supra; Lancaster v. Lancaster, supra; Russell v. Taylor, 121 Tex. 450, 49 S.W.2d 733, 737 (1932).
The order of the Duval District Court (in addition to overruling the plea in abatement filed by Mrs. Parr) also temporarily enjoined Mrs. Parr and her attorneys from pursuing and prosecuting the Nueces County suit pending final disposition of the Duval suit. Relators here could have challenged that portion of the order, which was an appealable interlocutory order, by appealing to the Fourth Court of Civil Appeals, sitting at San Antonio, but they failed to do so. Instead, they elected to collaterally attack the entire order of the Duval District Court in an original proceeding in this Court. Upon the record now before us it is apparent that Judge Hamilton properly declined to proceed in the Nueces suit filed by Mrs. Parr after her plea in abatement was overruled by the Duval District Court. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, 1073 (1926).
Relators are not entitled to relief in this proceeding either by writ of mandamus or prohibition and their petition must be denied.