On April 16, 1914, the defendant in error, J. M. Blasingame, instituted suit against the plaintiff in error, the Cattlemen’s Trust Company of Ft. Worth, in the district court of Ochiltree county, Tex., alleging that two certain promissory notes, one for the sum of $750, and the other for the sum of $250, executed and delivered by him upon a certain subscription contract for stock in said trust company, were obtained by fraud of the agent of said company, on account of alleged misrepresentations inducing the execution and delivery of said notes. The $250 note was made payable directly to the agent who solicited the subscription contract, and was transferred before the maturity of same to an innocent holder, on account of which Blasingame was compelled to pay the same on presentation. The $750 note was made payable directly to the trust company, and remained in the latter’s possession. The defendant in error sued for the recovery of the money representing the compulsory payment of the $250 note, and interest, on account of the alleged fraud, and for the cancellation of the larger note upon the same ground.
On April 24, 1914, subsequent to the institution of Blasingame’s suit in Ochiltree county upon the fraud as alleged, the Cattlemen’s Trust Company sued Blasingame in the district court of Tarrant county on the $750 promissory note (which, in terms, was payable at Ft. Worth, Tex.), and thereafter, upon proper service, obtained judgment in the district court of said county for the full amount, principal, interest, and attorney’s fees in said note, except a credit of $15 disclosed in said judgment. Blasingame failed to answer the trust company’s petition upon said note in the suit in Tarrant county, but thereafter filed a writ of error bond superseding said judgment, for the purpose of reviewing the same, by petition in error in the Court of Civil Appeals of the Second Supreme Judicial District at Ft. Worth. When this suit by Blasingame against the trust company, based upon the alleged fraud, was called for trial in the district court of Ochiltree county, the trust company, as defendant, in due order of pleading, presented a plea in abatement, setting up the institution of its suit upon the $750 note in Tarrant county, the judgment obtained thereon, exhibiting proper service, and the filing by Blasingame of the writ of error bond as a supersedeas of said judgment, also alleging the failure of Blasingame as to any defense in said suit, and further averring that the $750 note was one of the two notes executed by plaintiff as a part of the same transaction for the stock in defendant company, praying for abatement of this case, or. if not abated, that the trial of the same be postponed until the disposition of the other cause pending on writ of error in the Court of Civil Appeals to the Second Supreme Judicial District.
[1] The first assignment of error in plaintiff in error’s brief is predicated upon the refusal of the trial court to abate or postpone the trial of the cause, as prayed for. Defendant in error asserts broadly that the trial court did not err in refusing to abate or postpone the suit, “because a prior suit for the same cause would not abate another suit in Texas.” He cites authorities where, on account of two causes of action pending for the enforcement of the same right, it is suggested that a litigant will be compelled to elect upon which cause he will continue the enforcement of his rights, and that it is a matter of costs, and it is not a pure matter of abatement as at common law. Upon the suggestions in the decisions referred to that it is not a pure matter of abatement as at common law, but is a matter of election and costs, some of the Courts of Civil Appeals, in several decisions, have extended the doctrine to the extent that a subsequent suit for the same cause of action will not abate a prior suit.
The Austin court, through Justice Rice, in the case of Thomas Goggan & Bros. v. Morrison, 163 S. W. 122, refused to follow the logic of such opinions, stating that:
“If two suits between different parties could be maintained in different courts at the same time, involving the same subject-matter, the anomalous condition would be presented of one court ordering the performance of a certain thing which the other might forbid.”
And the Ft. Worth court, by Justice Speer, in the case of Sparks v. National Bank of Commerce, 168 S. W. 48, referring to the Gog-gan Case, also condemned the consequences of such a position, saying:
“Not only does this rule [announced in the Goggan Case] avoid the evil of a multiplicity of suits, * * * which the law abhors, but it likewise avoids the possibility of conflicting judgments, thus producing interminable confusion and controversy.”
And the Galveston Court, through Justice McMeans, in the case of Miller & Yidor Lumber Company v. Williamson, 164 S. W. 442, reviews practically all the authorities cited in defendant in error’s brief, presenting the following illustration bearing upon the in*576tolerable condition resultant from the logic of such holdings: In that case the plaintiff and defendant in the two suits were reversed, and Justice McMeans, says:
“Suppose both suits should be tried in the respective courts in which they are brought, and the jury upon conflicting evidence should return a verdict for the plaintiff in each court, and a judgment rendered' in accordance therewith should be entered; that thereafter the defendant in each suit should appeal, and the appellate court should bold on each appeal that, as the verdict was rendered oh conflicting evidence, and as the law was properly applied, by the court in its charge, it was not authorized to disturb the judgment. Here we would have a judgment of two courts of co-ordinate jurisdiction, both affirmed, one of which would be for the plaintiff in each suit; or, in other words, both parties to the suit would have recovered a judgment for the same land. Which party then would have the better title? Their difficulties would be no nearer a solution than before the suits were begun.”
Writ of error denied by the Supreme Court.
This record discloses that the defendant 'has procured a judgment upon a petition alleging the liability of Blasingame on account of the execution and delivery of a certain $750 note, the same note .which Blasin-game is attempting to cancel, after having failed to answer in the Tarrant county suit, which, in the event of a final determination upon appeal of the judgment upon the note against Blasingame in the Tarrant county suit, and upon an affirmance of this cause canceling the $750 note, as the Austin and the Galveston courts suggest, we would have the anomalous, and, we will add, • the intolerable, condition of one court rendering a judgment in favor of an alleged right, and another court, in effect, rendering another judgment denying the same right; and, as Justice McMeans further interrogates, which of these judgments prevails? The defendant in error, however, says that the trial court did not err in refusing to abate or postpone the suit, “because the district court of Ochil-tree county, having first acquired jurisdiction of the cause of action between the parties hereto, is entitled to maintain exclusive jurisdiction thereof, undisturbed by any. other tribunal,” citing numerous authorities, declaring the familiar principle. The authorities have no application to the condition of this record. Blasingame should have presented to the district court of Tarrant county a plea of pendency of another suit previously instituted, involving the same subject-matter, and on account of such failure the district court of Tarrant county not having been advised, of course, rendered a judgment upon the allegations of the petition. The Cattlemen’s Trust Company did not perpetrate a fraud upon the jurisdiction of the court; it is more a question of lack of vigilance on the part of Blasingame.
In the case of Cook v. Burnley, 45 Tex. 97, where the holder of a judgment obtained in a suit instituted subsequent to the filing-of a previous suit between the same parties, pleaded the, subsequent judgment, as res ad judicata, agáinst the maintenance of the suit formerly instituted, the contention was made that the bringing of the subsequent suit and the judgment rendered therein was fraud upon the jurisdiction of the court wherein the previous suit was pending and was void. The Supreme Court said:
“This position is certainly not tenable. For, though that might be a good plea if properly pleaded, and at the proper time, in abatement of the second suit, it is no defense to a judgment recovered in a suit brought since this one in a court of competent jurisdiction.”
The principle of superior jurisdiction and dominancy of the Ochiltree district court in regard to the litigation is destroyed by the lack of vigilance of Blasingame ana the rendition of the judgment upon the $750 note in the suit in Tarrant county. The latter court, in proceeding to judgment, becomes dominant in the litigation, at least upon the condition of this record until the determination of that suit in the appellate court upon that appeal. The litigation in Ochiltree county is subservient to that appeal. Of course, on account of the judgment having been superseded by the writ of error bond in the Tar-rant county case, the question here is not one of res adjudicata, except argumentatively as one of future consequence, and of inconsistent judgments which might ensue, presenting anomalous and intolerable conditions where two cases involving the same subject-matter are finally determined.
[2] We take it that it would not be disputed but what the judgment upon the note, adjudicating the liability of Blasingame upon same, obtained in the Tarrant county district court, when made final, is a complete adjudication to the extent that Blasingame could not cancel the same note in another jurisdiction, having failed to present any plea in the former suit.
“The judgment of foreclosure obtained by ap-" pellee against appellant on the notes given for the purchase money of the thresher would operate as a bar of his right to rescission, but not of his remedy for a breach of warranty.” Standefer v. Aultman & Taylor Machinery Co., 34 Tex. Civ. App. 160, 78 S. W. 552.
In the case of Arnold v. Kyle, 67 Tenn. (8 Baxt.) 323, the higher court of chancery of Tennessee specifically held that a judgment at law upon a promissory note, though no defense was interposed, was a complete bar to an original bill attempting the cancellation of the same note in a court of equity on account of fraud, especially where the complainant, attempting to cancel the note, knew the fraud before the rendition of the judgment in the other court.
The following authorities, while not wholly upon the point, upon very similar conditions, though, sustain the principle. White v. Cuthbert, 70 App. Div. 220, 41 N. Y. Supp. 818; Bingham v. Kearney, 136 Cal. 175, 68 Pac. 597; Shaw v. Milby (Ky.) 63 S. W. 577; Cannon v. Castleman, 162 Ind. 6, 69 *577N. E. 486; Le Guen v. Gouverneur, 1 Johns. Cas. (N. Y.) 436, 1 Am. Dec. 121.
[3] The condition is presented upon this record as to the proper disposition of the case in this court. Some of the assignments in plaintiff in error’s brief, upon a consideration of them alone, exhibit error. Plaintiff in error, however, submitted a requested instruction, which was given by the trial court, requiring the jury, in effect, to find every ground of fraud alleged in plaintiff’s petition as true before they could find a verdict against defendant. The presumption is that the jury followed the charge of the court, and, that being so, there is one ground, at least, in plaintiff’s petition, with evidence sufficient to sustain it, which the jury under this charge evidently found to be true, and which is not affected by plaintiff in error’s assignments. In an ordinary case this condition would sdggest the procedure by this court of an affirmance of a part of the case, and a definite disposition of another part, if the trial court had jurisdiction when it acted upon the whole case. It is suggested by plaintiff in error that we would be unable to affirm that part of the judgment of the trial court permitting the recovery by defendant in error of the sum of $250, and interest paid by him, on account of the question of jurisdiction. We do not decide that question. Aside, however, from this question of jurisdiction, upon mature consideration of this whole case, we are convinced that the district court should not have permitted the litigation over the $750 note merged in the judgment of the Tarrant county district court, and, if we attempted to affirm that part of the judgment based upon the payment of the $250 note, and should order the district court to suspend the hearing of that part of the case involving the $750 note, we would be ordering something which the district court originally could not have ordered. Such a judgment would not have been a final judgment. It might be said that, if the whole case in Ochiltree county is a more enlarged cause of action than that adjudicated in Tarrant, the pend-ency of another suit in which judgment has been rendered should not avail the plaintiff in error. We still, however, have the problem, left of the court’s sitting and rendering two judgments, exemplified in this case (if the motion presenting the final determination of the Tarrant county judgment could be regarded), wherein one court cancels the very note upon which judgment has been rendered by the other and the first judgment finally determined and affirmed by the appellate court.
Plaintiff in error insists that, the merger into judgment of the $750 note being a part of an entire transaction, also producing the $250 note, said judgment, if finally determined, would not only be a bar to any litigation in Ochiltree county upon the $750 note, but further would be' a bar to any procéeding involving the $250 note arising out of the same contract of subscription and the same transaction. We do not care to go that length without going into an extended discussion upon the point. If, however, the district court should not have litigated and adjudicated a part of plaintiff’s cause of action set up in his petition, it would follow that it would have been its duty to have postponed the whole case on account of the condition produced by the lack of vigilance of Blasingame in not answering the suit in Tarrant county. It might be suggested that this court slnpuld reform that part of the judgment based upon the $250 note, and change the same into an interlocutory judgment for that amount If the question of jurisdiction could be overcome in order to reach such a procedure, and upon the suggestion that this court could and should do what the district court should have done, we can find no precedent for such a course. It would be a precedent permitting a district court to carve out of a petition and litigate a part of same for the purpose of entering an interlocutory judgment, and then postpone the balance of the cause, retry the same at some other time upon the same' issues upon the remainder of the cause of action, and then render a final judgment upon the whole case, whatever the disposition by the Court of Civil Appeals at Ft. Worth. Courts do not sit to try a case in “piecemeal.”
Plaintiff in error presents a motion in this court exhibiting the final determination for the appeal from the Tarrant county district court’s judgment, praying for a dismissal of the whole suit in Ochiltree county, on the theory that the subject of controversy between these parties has ceased to exist; that, the main part of this suit having been eliminated, it is shown to this court that the Ochiltree county district court has nothing to litigate, for the reason that the remainder of the demand is not within the jurisdiction of that court. A proposition of this character brings in its train an extended investigation upon our part into a question not briefed here, whether, upon any supposable theory, by amendment, setting up facts as allegations of excuse for not answering the suit in Tarrant county, the plea of res ad-judicata could be avoided, and whether such a proceeding should be remitted to the court in which the judgment was rendered. We overrule the motion. This same motion does show, however, if we could regard it, that since this case has been brought here this plaintiff in error has attempted to execute his judgment; another suit has been filed by Blasingame; the Court of Appeals at Ft. Worth has issued a writ of prohibition against the district judge of the Thirty-First judicial district from interfering with the judgment in those forums; and we have the almost “interminable confusion and contro*578versy” spoken of by Justice Speer, wbicb concretely exemplifies tbe rule contended for by appellee in producing results.
With tbe lights before us we think the proper disposition of this case is to reverse and remand upon the whole case. It may be that the final working out of the rights of the parties will operate as a hardship. If so, the condition, as presented upon this record, is one created by defendant in error. We are convinced that the rule declared, upon the condition of record here, is the safe rule, grounded upon a sound public policy. The whole case, upon plaintiff in error’s plea in abatement, should have been postponed until the determination of the case in the Court of Civil Appeals at Ft. Worth upon the Tarrant county judgment.
A discussion of plaintiff in error’s other assignments is probably unnecessary.
The cause is reversed and remanded.
<§uwFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes