On Motion for Rehearing.
Appellee in her motion for rehearing insists that we were in error in sustaining appellants’ plea in abatement to her cause of action which seeks the equitable relief of cancellation of the note sued upon by appellants in Oklahoma, and we are cited to Texas Jurisprudence, § 82, page 113, as sustaining this contention.
If the suit brought by appellants in Oklahoma had 'been brought in the district court of som.e county in Texas- other than Red River county, it is the settled law of this state that the plea in abatement should have been sustained (Cleveland v. Ward, 116 Tex. 1, 285 S. W. 1063), and this would be true although appellee’s suit is one in equity to cancel the note and appellants’ suit was one at law to recover on the same note (Thomas Goggan & Bros. v. Morrison (Tex. Civ. App.) 163 S. W. 119). In a case like this where the only relief sought by appellee, which is the cancellation of the note sued upon by appellant in Oklahoma, can be had in the suit pending in the Oklahoma court as fully as it could in a court of this state, we can conceive of no good reason why the plea in abatement should not be available to appellants the same as it would if the two suits were pending in this state. To so hold is only to apply the general rule followed by this court in Wade v. Crump, as follows: “The general-rule is that, where a case may be brought'in either of two tribunals, that court which obtains jurisdiction of the case retains it; and this extends upon principles of comity to cases of conflicting suits brought in the courts of sister states.”
It is also applying a rule laid down by Mr. Freeman in his work on Judgments (5th Ed.) Yol. 1, § 335: “It seems impossible that two courts can, at the same time, possess the power to make a final determination of the same controversy between the same parties. ,If either has authority to act, its action'must necessarily be exclusive, and therefore it is our judgment that whenever either the state or the national courts acquire jurisdiction of an action and the parties thereto, this jurisdiction cannot be destroyed, diminished, or suspended by one of the parties bringing an action in another court, and that any judgment or order of the latter court is void so far as it conflicts with any judgment or order of the court first acquiring jurisdiction.”
This rule was adopted by our Supreme Court in Cleveland v. Ward, supra, and is the law in this state.
The motion for rehearing is in all things ' overruled.