On Motion for Rehearing.
■ [8, 9] The appellee calls our attention to an error in our statement of the pleadings in our opinion heretofore filed: That is, that appellee sought, by its answer in this case, “to recover on the notes mentioned in the plaintiff’s petition, and for foreclosure of the mortgage lien.” "This statement is incorrect. We evidently in making the statement had before us the certified copy of the petition filed by appellee in the Dallas court, which was attached to the plea in abatement. The appellee, in its motion for rehearing, asks that we, instead of reversing and remanding the cause, sustain the plea in abatement and dismiss the ease — we presume from the district court docket. This, as we understand the authorities, we could in no event do. If the judgment was void in the court a quo for want of jurisdiction, we, at most, could only dismiss the appeal. The judgment was not void, for the court had jurisdiction of the subject-matter and the parties. All that would oust it of jurisdiction is there was pending a suit for the same matter in another tribunal of competent and . concurrent jurisdiction. The case could be abated, if at all, on the grounds of comity, vexatious litigation, or multiplicity of suits, which would not oust the appellate court of jurisdiction on appeal. Even if the court below had no jurisdiction, it is suggested by the Supreme Court that it is the better practice to reverse and remand. Railway Co. v. Canyon, etc., 102 Tex. 478, 119 S. W. 294; Railway Co. v. Mathews, 169 S. W. 1052.
[10] The appellant contends, inasmuch as-the plea in abatement had attached to it a certified copy of the petition and answer from the district court of Dallas county, that we here have the power to render'judgment, dismissing the case. We find no bill of exception in the record showing that any evidence-was introduced upon the plea in abatement or anything in the statement of facts or record showing such evidence. All that is in the record is the plea with its exhibits and the order of the court overruling the plea reciting that a hearing on the plea was had. A sworn plea of privilege is not prima facie, evidence of the facts alleged, and other proof of the facts must be introduced unless the facts are contained in the plaintiff’s petition. Ragland v. Guaranty Life Insurance Co., 157 S. W. 1187. If it should be held the exhibits to the plea — that is, the petition and answer — were in evidence, they, at most, only showed at a certain time the suit was instituted; this did not prove a then pending suit at the time this ease was instituted, or at the trial. For aught that is shown in this record, the Dallas suit may have been abandoned or dismissed. Red Deer Oil, etc., v. Huggins, 155 S. W. 949; Holland v. Western Bank, 56 Tex. Civ. App. 324, 118 S. W. 218. We held only if the- facts alleged in the-plea are proven the case should be abated. The record in this case does not show such proof.
[11] The costs on this appeal are properly taxed against the appellee. If the case should be abated upon a hearing of the plea, the costs in the district court, of course, would be taxed against,the appellant. Threatt v. Johnson, 156 S. W. 1137.
The motion is overruled.