Forman v. Prince , 97 S.W.2d 1002 ( 1936 )

On Motion for Rehearing.

We have indicated in the original opinion that the evidence offered on hearing of the plea of privilege and controverting affidavit established venue of the suit in Dallas county, under subdivision 5, art. 1995, R.S., and that it was not incumbent upon appellee to prove other than a written obligation to show liability performable in Dallas county.

The merits of liability evidenced by a written contract are not necessarily involved on hearing of a plea of privilege. The obligation here contracted to be performed, that is, the payment of money evidenced by the note, is conditioned, among other things, that the Lloyds of Texas be an insolvent insurance exchange. We think a reasonable interpretation of the contract is, that the condition of insolvency goes to the merits of the liability, and, only if insolvent, is thereby a liability. Indeed, on the trial of the causeon its merits, if the Lloyds of Texas is shown to be a solvent concern, appellee could not recover on the note sued upon; and, on the other hand, if the Lloyds of Texas is shown to be an insolvent concern, proof of the execution of the note would establish prima facie the liability of the maker. It is clear, we think, that the venue of the suit is not conditioned on the solvency or insolvency of the Lloyds of Texas. That issue goes to the merits of the controversy as to whether the maker is liable on the note and not the place of performance. We can see no good reason to require the plaintiff, on a hearing of a plea of privilege, to go beyond the venue facts.

We have expressed no opinion as to whether the present suit should be abated on account of the pendency of the prior suit in McLennan county, between the same parties and involving the same subject-matter, except we have said that the pendency of the prior suit involves a question of jurisdiction of the Dallas county court, and that issue is determinable on a hearing of plea in abatement and not on a hearing of a plea of privilege. However, we are oljsessed with the idea that the order of the Dallas county district court, under the holdings of our Supreme Court, in Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, restraining plaintiff from further prosecuting the McLennan county suit, is void. Since jurisdiction attached to the McLennan county court by the filing of the suit there, involving the same parties and subject-matter, it cannot be abated by a subsequent proceedings in another co-ordinate court, nor can a co-ordinate court arrest, by writs of injunction, an orderly proceeding of another court of equal dignity. The McLennan district court first acquired jurisdiction of the subject-matter in controversy and should maintain its jurisdiction until a final determination of the issues there involved; and, if the plaintiff in that suit 'is successful and the judgment of the court cancels the note and securities on the alleged ground of in-ceptive fraud, such judgment would be rer adjudicata as against any judgment which the Dallas county court might render on the note and securities; on the other hand, if th,e plaintiff in the McLennan county court should fail and the court render judgment against him, then, in that event, the suit in the Dallas county court may then properly and orderly be tried to final judgrhent.

To sustain appellant’s plea in abatement in this proceeding would mean that appellee would be forced to assert his action by cross-bill, in the district court of McLennan county, or perhaps suffer this suit to be consolidated with the McLennan county suit after the transfer. ’He is nol required to do either. Appellee is not compelled to abandon his suit in Dallas county or have it transferred on a plea of privilege because of the pendency of the prior suit. The Dallas county court, as a court of equity, may, instead of abating the suit, suspend the proceedings therein un(il the termination of the suit having priority and then revive the action, if there be anything to litigate. Long v. Long (Tex.Civ.App.) 269 S.W. 207. It would be inequitable, in view of the record before us, for the Dallas county court to proceed in the case before it while holding in abeyance the suit in McLennan county, by writs of injunction. Until the Dallas county court has acted in the premises, to the prejudice of appellant, and its action is brought to the attention of-this court in a manner prescribed by law, we áre not authorized to direct the course of the trial court, on the issue of abatement.

Appellant’s motion for rehearing is overruled.