BURFORD et al. v. SUN OIL CO. et al.
No. 9447.
Court of Civil Appeals of Texas. Austin.
Nov. 22, 1944.
Rehearing Denied Feb. 14, 1945.
186 S.W.2d 306
MCCLENDON, Chief Justice.
Appellee denied the charge of infatuation and denied any charge or inference of wrong doing in connection with her association with the personnel of the Army Air Field where she was employed. The trial judge evidently believed appellee and did not believe appellant and his witnesses, and with that appellant‘s defense of recrimination failed. It is not deemed necessary to detail appellant‘s testimony, since the trial judge did not believe it or did not choose to draw the inferences therefrom which would be necessary to establish appellant‘s defense.
The trial court‘s solemn finding written into the judgment is conclusive upon the phase of the case, viz: “The Court finds * * * that defendant‘s attacks upon the character and good name of plaintiff are unfounded and are inconsistent with his professed affection, respect and esteem for her.”
The judgment of the trial court is affirmed.
Grover Sellers, Atty. Gen., and E. R. Simmons, and W. P. Watts, Asst. Attys. Gen., for appellant Railroad Commission of Texas.
Walace Hawkins, of Dallas, and Dan Moody and J. B. Robertson, both of Austin, for appellee Magnolia Petroleum Co.
J. W. Timmins and Martin A. Row, both of Dallas, and Powell, Wirtz, Rauhut, & Gideon, and J. A. Rauhut, all of Austin, for appellee Sun Oil Co.
MCCLENDON, Chief Justice.
Rule 37 case. The appeal is from a final judgment cancelling two orders of the Commission granting permits to drill four wells on a long (about 2131 feet, north-south), narrow (about 49 feet, east-
The two orders involved were dated respectively March 25 and June 2, 1939, the first authorizing one well and the second three additional wells.
The following general statement is quoted from appellants’ brief:
“This litigation has had a varied course through the state and federal courts. After the first permit, which is attacked in this suit, was granted, the oil companies filed a suit in the state courts to cancel the permit. This cause remained on the docket of the state court until after the second permit was issued and the motion for rehearing was overruled by the Railroad Commission on July 10, 1939. Ten days later, on July 20, 1939, the oil companies dismissed their suit in the state court and refiled their case in the federal court. This case was tried in the Federal District Court and later appealed to the United States Circuit Court of Appeals and to the United States Supreme Court. See Sun Oil Co. v. Burford, 5 Cir., 124 F.2d 467; 5 Cir., 130 F.2d 10; 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424. Judgment was finally entered on the mandate of the United States Supreme Court on July 21, 1943, and on the next day the oil companies filed this their second suit in the state court.
“The principal questions which are raised by this appeal are (1) whether the appellees were not barred from maintaining their second suit in the state courts by reason of limitations, laches, or election of remedies, since their second suit in the state court was filed more than four years after their right of action accrued; (2) whether the validity of the present permit is not made res judicata by reason of a former judgment of the District Court of Travis County, Texas, relating to a permit issued in October, 1934, to Burford‘s predecessor in title; (3) whether the Railroad Commission had jurisdiction to consider granting the present permit because of the pendency of a suit to set aside another permit, granted in February, 1934, to Burford‘s predecessor in title; (4) whether the strip is entitled to be considered as a separate strip in granting an exception to Rule 37 to prevent confiscation; (5) whether the Railroad Commission abused its discretion in granting permits to drill four wells, instead of only one well; and (6) whether the court erred in admitting certain testimony of the witness for the Sun Oil Company as to what a report by a firm of engineers showed.”
We have reached the conclusions that appellees are not barred from maintaining this suit (question 1) and that the strip is not entitled to be considered as a separate tract (question 4). These conclusions are decisive of the appeal, and render unnecessary a consideration of questions (2), (3), (5) and (6). We will, however, make a brief statement regarding questions (2) and (3).
As to these questions: February 1, 1934, permit was granted to drill one well on the strip. May 30, 1934, suit was filed to cancel this permit on the ground (inter alia) that it was granted without notice and hearing. The same day an order was made temporarily (until hearing on application for temporary injunction, set for July 17, 1934) restraining drilling under the permit. No other action was taken in the case until November 29, 1939, when final judgment was rendered decreeing the permit void for want of notice and hearing and cancelling it on that ground; but “without prejudice” to apply for another permit. Meantime (July 30, 1934) verified application was made to the Commission for a hearing on the original application, it being recited therein that the former order had been set aside because of lack of notice and hearing. Attached to this application was an alleged copy of a judgment decreeing the permit invalid for want of notice and hearing, temporarily enjoining drilling under the permit, and authorizing application to the Commission for a hearing upon, the application. Judgment, according to this copy, does not appear to have been entered. It was dated
Considering question (1) we will first state the several contentions of the parties. Appellants contend that appellees’ suit is barred under the doctrine of election of remedies by their first filing suit in the state court and thereafter dismissing that suit and filing suit in the federal court. Clearly this was merely a change in choice of courts, in each of which the same remedies were sought, and since the former suit was dismissed and not prosecuted to judgment there was no election of remedies. Railroad Commission v. Shell Oil Co., Tex.Civ.App., 170 S.W.2d 568. See also 15 Tex.Jur., PP. 830-832, § 8.
Nor does the doctrine of laches apply. The delay in filing the instant suit was occasioned by the pendency of the federal court suit. It may be conceded that appellees had the right to prosecute suits simultaneously in both courts. But they were not required to do so; and their failure to do so, conceding their good faith in bringing the federal court suit (which is not questioned), did not operate prejudicially upon their rights. Moreover there was no showing of prejudice to appellants by reason of delay. Railroad Commission v. Shell Oil Co., Tex.Civ.App., 165 S.W.2d 502, error refused. We should add this further comment in this connection. Federal court jurisdiction was predicated upon both infringement of the due process clause of the Federal Constitution and diversity of citizenship. Federal jurisdiction in these regards is conferred by the Congress. The rights of litigants thus conferred are valuable rights; and this regardless of whether ultimately there eventuate from the federal court choice an advantage to the one making the choice. If, in the exercise of good faith, the choice be in favor of federal jurisdiction no penalty should attach to the mere making of the choice, and the exercise of an honest judgment that one is availing himself of rights to which he is entitled and which (supposedly at least) will work to his advantage.
Upon the issue of limitations: Appellees contend that since this is a special statutory proceeding the general statutes of limitations do not apply. They further contend that if the statutes do apply, limitation was tolled under
As to appellees’ first contention: it is true that this “is a special statutory action to enforce a right which exists only by statute, and not under the Constitution, or at common law.” Alpha Petroleum Co. v. Terrell, 122 Tex. 257, 59 S.W.2d 364. It is also true that the courts generally hold that where there is unreasonable delay, which works to the prejudice of the affected party, the right to maintain the suit is barred under the principles governing laches. See Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73; Midas Oil Co. v. Stanolind Oil & Gas Co., Tex.Sup., 179 S.W.2d 243; Id., Tex.Civ.App., 123 S.W.2d 911 (error dis.); Red Arrow Freight Lines v. Missouri Pac. F. T. Co., Tex.Civ.App., 166 S.W.2d 747 (error ref.). Appellants rely upon expressions in these opinions to the effect that
Independently of the effect of the Supreme Court‘s action, our former holding is authoritative in so far as this court could make it so. And besides we still believe the holding correct; which is embodied in the following quotations [117 S.W.2d 151]:
“The right of individuals given by statute to appeal from orders of the Commission, whether or not such appeal may in any proper sense be classified as a suit against the state, is governed by general rules of law applicable to other suits or causes of action, at least to the extent that such rules may properly and appropriately be applied. * * *
“It is immaterial whether the Commission could have successfully plead limitation * * *. As between appellants and Greer, the latter‘s operation under his permit (if invalid) constituted an invasion of appellants’ rights which appellants were required to protect by suit within the limitation period. * * *
“They were free during the entire limitation period (unless barred by laches) to have the permit annulled by statutory appeal.”
As stated, whether the limitation was tolled during pendency of the federal court suit turns upon the issue whether vel non the final judgment (that of the Supreme Court) was in effect a dismissal “in any way * * * because of a want of jurisdiction of the Trial Court in which such action shall have been filed,” within the meaning of
This Article was passed by the Regular Session of the 42nd Legislature, 1931 Gen.L. p. 124, as Senate Bill No. 67. The Article was drawn by the Judicial Council and recommended in its Second Annual Report (1930) as its Bill No. 6, page 10. The caption reads: “An Act to extend the period of limitation because of filing of any action in the wrong Court, unless opposite party shows intentional disregard of jurisdiction; and declaring an emergency.”
Both the Act and its caption are worded identically with the Council bill, except that the time for refiling in a proper court was changed from 30 days (Council bill) to 60 days (the Act). A memorandum setting forth the objectives of the bill will be found at page 11 of the report.
It is manifest that the Act is remedial in its every essence. It should therefore be given a liberal construction with a view of effectuating its manifest objective—relief from penalty of limitation bar to one who has mistakenly brought his action “in the wrong court.” See Butler v. Express Pub. Co., Tex.Civ.App., 126 S.W.2d 713. So construed it is clear that the Act was intended to cover every case where the effect of the final judgment or order of the first court was tantamount to a dismissal because the action was mistakenly but in good faith brought in the wrong court. In other words, the effect of the court judgment or order and not its form or the name by which it is called is the determining factor. This is clear from the wording both of the caption and
A statement of the course of the action in the federal courts, made in the light of this construction of
As stated, the Sun case was filed July 20, 1939, in the FDC (Federal District Court) at Austin. Before it was tried the FSC (Federal Supreme Court) handed down its opinions in the R & N cases (Railroad Commission v. Rowan & Nichols Oil Co. opinion in first case, June 31, 1940, 310 U.S. 573, 60 S.Ct. 1021, 84 L.Ed. 1368; modification opinion, October 21, 1940, 311 U.S. 614, 61 S.Ct. 66, 85 L.Ed. 390; opinion in second case, January 6, 1941, 311 U.S. 570, 61 S.Ct. 343, 85 L.Ed. 358). Judgment of dismissal of Sun case in FDC, February 7, 1941. This judgment affirmed by FCCA (Circuit Court of Appeals, 5th Circuit), December 29, 1941 (124 F.2d 467); rehearing denied February 2, 1942; second rehearing granted July 11, 1942, (130 F.2d 10) remanding the cause to FDC for trial on merits (except as to federal question), predicated upon decision in Selby case (Selby Oil & Gas Co. v. Railroad Commission, 5 Cir., 128 F.2d 334), rendered June 30, 1942, by the FCCA. Final judgment on certiorari to the FSC, May 24, 1943, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424; rehearing denied June 21, 1943, 320 U.S. 214, 63 S.Ct. 1442, 87 L.Ed. 1851.
The R & N suits involved proration orders governing the East Texas Oil Field. The administration of Texas oil and gas conservation laws had brought on a flood of litigation, a substantial part of which was in the federal courts, some cases reaching the FSC. No little confusion in state and federal holdings resulted. Prior to the R & N decisions this confusion had not served as a deterrent to the exercise of federal jurisdiction. The Justices were divided in these decisions 6 to 3. The majority opinions were by Frankfurter, concurred in by Stone, Black, Reed, Douglas and Murphy, with dissenting opinions by Roberts, concurred in by Hughes (the Chief Justice) and McReynolds. The majority opinion in the first decision gave a resume of difficulties both legislative and administrative involved in the Texas efforts toward conserving these natural resources, the former it characterized as “as thorny a problem as has challenged the ingenuity and wisdom of legislatures.” [310 U.S. 573, 60 S.Ct. 1023] Federal jurisdiction in those suits was predicated alone on assertion of a federal question—infringement of due process. Upon this issue the opinion reads: “Certainly in a domain of knowledge still shifting and growing, and in a field where judgment is therefore necessarily beset by the necessity of inferences bordering on conjecture even for those learned in the art, it would be presumptious for courts, on the basis of conflicting expert testimony, to deem the view of the administrative tribunal, acting under legislative authority, offensive to the Fourteenth Amendment.”
The concluding paragraph read: “Except where the jurisdiction rests, as it does not here, on diversity of citizenship, the only question open to a federal tribunal is whether the state action complained of has transgressed whatever restrictions the vague contours of the Due Process Clause may place upon the exercise of the state‘s regulatory power.” 61 S.Ct. 66.
Upon rehearing this last paragraph was deleted and the following substituted: “While the presence of a federal question may also open up state issues, Siler v. Louisville & N. R. Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753, the claim here founded on Texas law is derived from a statute requiring proration on a ‘reasonable basis.’
Construing this holding, the court, in the second decision said [311 U.S. 570, 61 S.Ct. 346]: “In denying the petition for rehearing in the earlier cases we held that whatever rights the state statute may afford are to be pursued in the state courts.”
The Roberts dissenting opinion is quite brief. Its gist is embodied in the following quotations:
“Although the problem of proration presented technical and difficult questions, and although the Commission was vested with a broad discretion in dealing with them, these facts could not justify the court‘s abdicating its jurisdiction to test the Commission‘s order. * * *
“The opinion of this court, in my judgment, announces principles with respect to the review of administrative action challenged under the due process clause directly contrary to those which have been established.” Citing Brandeis in Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55, 57 S.Ct. 364, 81 L.Ed. 510.
Federal jurisdiction in the Sun (instant) case was predicated both upon federal question and diversity of citizenship. The bill of complaint in the FDC followed the general lines of petitions in Rule 37 cases filed in the state courts under
Upon appeal, the first decision of the FCCA (District Judge Dawkins writing and Circuit Judges Holmes and McCord concurring) was an affirmance of the FDC decree, the opinion giving the same construction to the R & N decisions as that
The FCCA opinion in the Selby suit (Hutcheson, C. J., writing, Foster, C. J., concurring, and McCord, C. J., dissenting) construed the holding in the R & N opinions to relate only to suits, federal jurisdiction as to which is based solely upon federal questions. The Selby suit (a Rule 37 case) was held to embrace two claims for relief: infringement of rights (1) guaranteed by the Federal Constitution (due process), and (2) created by Texas conservation laws (a statutory suit). As to the latter the parties would be relegated to the State courts, where federal jurisdiction was based alone on a federal question (R & N decisions); but where federal jurisdiction was based upon diversity of citizenship all questions, including those asserted under State law, would be adjudicated in the federal courts.
After the Selby decision the FCCA, upon second motion for rehearing, reversed its former decision as to questions of state law and remanded those issues to the trial court for adjudication. The opinion in the Sun case disagreed with that in the Selby case in the holding that the action embraced two suits, a “constitutional suit” and a “statutory suit,” holding [130 F.2d 16]: “We have here only one suit. It is of an equitable nature, and is called a civil action under the Federal Rules of Civil Procedure [28 U.S.C.A. following section 723c.]” The same conclusion was reached, and upon substantially the same ground, as in the Selby opinion. These two decisions were rested very largely upon the holding that the decision of the Texas Supreme Court in the Trem Carr case (Railroad Commission v. Shell, 139 Tex. 66, 161 S.W.2d 1022) rendered after the R & N decisions, had clarified the Texas conservation laws; the Selby opinion in this regard reading [128 F.2d 337]: “* * * The Texas decisions are clear that whether the exception to the rule is granted for confiscation or for waste, a litigant in the statutory suit is entitled to have the independent judgment of the trial court based, not of course upon the evidence offered before the commission,—that is wholly immaterial,—but upon the evidence offered on the trial as to whether the order rests upon a reasonable basis, that is whether it is supported by substantial evidence.”
When the Sun decision (a 5 to 4 one) was rendered by the FSC, Stone had succeeded Hughes as Chief Justice and Jackson and Rutledge had succeeded McReynolds and Stone as Associate Justices. The majority opinion was by Black, concurred in by Douglas, Murphy, Jackson and Rutledge. Dissenting opinion was by Frankfurter, concurred in by Stone (C.J.), Roberts and Reed. Douglas wrote a reply opinion to the dissenting one, in which Murphy concurred. The majority opinion states at the outset [319 U.S. 315, 63 S.Ct. 1099]: “There is some argument that the action is an ‘appeal’ from the State Commission to the federal court since an appeal to a State court can be taken under relevant Texas statutes; but of course the Texas legislature may not make a federal district court, a court of original jurisdiction, into an appellate tribunal or otherwise expand its jurisdiction, and the Circuit Court of Appeals in its decision correctly viewed this as a simple proceeding in equity to enjoin the enforcement of the Commission‘s order.”
The issue upon which the decision was rested is thus stated: “Although a federal equity court does have jurisdiction of a particular proceeding, it may, in its sound discretion, whether its jurisdiction is invoked on the ground of diversity of citizenship or otherwise, ‘refuse to enforce or protect legal rights, the exercise of which may be prejudicial to the public interest‘; for it is in the public interest that federal courts of equity should exercise their discretionary power with proper regard for the rightful independence of state governments in carrying out their domestic policy.”
The opinion again reviews, and with even more elaboration than that in the opinion in the first R & N decision, problems and questions arising under our conservation laws, and concludes:
“These questions of regulation of the industry by the State administrative agency, whether involving gas or oil prorationing programs or Rule 37 cases, so clearly involve basic problems of Texas
“The state provides a unified method for the formation of policy and determination of cases by the Commission and by the state courts. The judicial review of the Commission‘s decisions in the state courts is expeditious and adequate. Conflicts in the interpretation of state law, dangerous to the success of state policies, are almost certain to result from the intervention of the lower federal courts. On the other hand, if the state procedure is followed from the Commission to the State Supreme Court, ultimate review of the federal questions is fully preserved here. Cf. Matthews v. Rodgers, 284 U.S. 521, 52 S.Ct. 217, 76 L.Ed. 447. Under such circumstances, a sound respect for the independence of state action requires the federal equity court to stay its hand.”
The trial court‘s decree was affirmed, and the cause was remanded to that court “to be dismissed without prejudice to such proceedings as a state court may consider appropriate.”
It is clear that the FSC grounded its decision upon the holding that federal courts would not exercise their “discretionary extraordinary equitable jurisdiction to grant an injunction,” where to do so would not be in furtherance of “the harmonious relation between state and federal authority” in matters involving the public policy of the state and where adequate and speedy remedy was afforded in the state courts. Our concern with the opinions in these cases is their bearing as determining factors upon the question whether the judgment of the FSC in the Sun case was, as to issues under Texas conservation laws, tantamount to a dismissal “because of a want of jurisdiction” of the Federal District Court, within the meaning of
There is of course a distinction between equitable rights—rights cognizable only in equity—and equitable remedies for the enforcement of legal rights. It is the latter alone (injunction) with which we are dealing here. And it should be noted, in this connection, that originally equity concerned itself chiefly, if not entirely, with remedies.
“English equity as a system administered by a separate tribunal originated at an early date as the result of the inability, and to some extent of the unwillingness, of the common-law courts to meet all the requirements of justice by granting relief in all proper cases.” 30 C.J.S., Equity, p. 321, § 2. See also 19 Am.Jur. pp. 40, 41, § 4.
Where equitable remedy was sought it was necessary to bring the action in a court of equity, and the lack of adequate remedy at law furnished both the ground and limit of equity jurisdiction. “The adequacy of a remedy at law, as a line of demarcation between courts of law and equity, is strictly preserved.” 30 C.J.S., Equity, p. 338, § 19. “As a general rule, the inadequacy of the remedy at law is both the foundation of, and conversely a limitation on, equity jurisdiction.” Id. § 20. Manifestly therefore a dismissal because of adequate remedy at law is technically as well as essentially dismissal for “want of jurisdiction.” It may well be that generally and in the abstract there is a distinction between want of equity jurisdiction and refusal on discretionary ground to exercise such jurisdiction. But where the asserted ground of such refusal is in essence the same as want of equity jurisdiction, the distinction in substance disappears. If a court should say: you have an adequate remedy at law and therefore we dismiss your suit, clearly this would be a dismissal for want of jurisdiction. This would be equally true had the court said: you have an adequate remedy at law, therefore we refuse to exercise our “discretionary” jurisdiction to
Appellants also suggest that “It is doubtful whether
The only remaining question is whether the strip is entitled to be considered as a separate tract for development purposes under the voluntary segregation rule. The facts in this regard are without dispute. The strip was a part of a tract of 102½ acres, the mineral title to which had been severed by lease. The east 50 acres of this lease had been conveyed to the Magnolia and thereafter the west 50 acres were conveyed to the Sun. This left the 2½-acre strip. The contention that the voluntary segregation rule does not apply is predicated solely upon the ground that at the time of segregation from the Sun lease the spacing rule applicable to the field required a minimum of 300 feet between wells and 150 feet from property lines; which provided a pattern of drainage area of 300 feet square or approximately 2.1 acres; and since the strip exceeded this acreage it was entitled to one well as a matter of law. The only cases cited in support of this view are Humble Oil & Refining Co. v. Railroad Commission, Tex.Civ.App., 94 S.W.2d 1197 (error ref.) and Wencker v. Railroad Commission, Tex.Civ.App., 149 S.W.2d 1009. These decisions were predicated upon the holding that there had been a substantial compliance with the rule because the configuration of those tracts was such that the deviation from the rule was so slight as to be inconsequential. These cases present no analogy to that here where the strip is only about 49 feet wide and about 2131 feet long. To authorize its development as a separate tract would entirely upset the spacing pattern and circumvent the objectives of the spacing rule.
The trial court‘s judgment is modified so as to eliminate therefrom the provi-
Modified and affirmed.
On Motion for Rehearing.
The motion states that our construction of
In support of the latter statement three of the four cases listed in our original opinion (Binge v. Gulf; Chalmers v. American; Garrett v. Hartford) are cited. In view of the statement we will briefly review these cases.
In the Binge case the suit had been filed in 93rd district court for $500 plus interest. It was later voluntarily dismissed and another suit on the same claim was filed in the 92nd district court within 60 days after dismissal. Each of these courts manifestly had jurisdiction, and the dismissal from the 93rd being voluntary and not for want of jurisdiction, it was plain that limitation was not tolled by its pendency under the Article.
In the Chalmers case the two suits were filed in the same court. The first was dismissed for improper joinder of parties and causes of action, the issue being raised by plea in abatement. The decision appears to be in conflict with the earlier case of Wood v. Dittmar, where the dismissal was of a cross-action on account of improper joinder. However that may be, and regardless of one‘s views as to which decision is correct, there is a clear distinction between dismissal for improper joinder in the same suit of parties or causes of action and dismissal upon declination to take jurisdiction because another court for reasons of comity or otherwise is the appropriate tribunal; the distinction being between the manner in which suit was brought in a proper court, on the one hand, and the court (an improper one) in which the suit was brought, on the other. In neither of the two cited cases was writ of error applied for; and the question they present can hardly arise again, since under Rule 41, Texas Rules of Civil Procedure, dismissal may be avoided by severance in improper joinder cases.
The Garrett case is clearly not in point here. That was a suit to set aside an order of the Industrial Accident Board, the time limit for filing which was 20 days after notice of appeal from the Board‘s order. The first suit was for an amount in excess of $3,000, and was removed to the federal court upon application of defendant on the ground of diversity of citizenship. Plaintiff voluntarily dismissed the suit in the federal court, and refiled it in the state court within 60 days after dismissal for an amount below $3,000, for the manifest purpose of defeating federal court jurisdiction. The federal court evidently had jurisdiction of the original suit, otherwise the proper procedure was to move to remand to the state court.
Appellants have also cited Fielder v. Hansborough, 195 Ky. 574, 242 S.W. 832, 833. That was a damage suit for false arrest occurring June 27, 1918, as to which a one-year limitation statute applied. Two suits were filed, one on June 9, 1919, in J. circuit court, and the other on June 10, 1919, in S. circuit court. The S. court had jurisdiction and after issue was joined on the merits in that court, plaintiff voluntarily dismissed the suit October 9, 1919. The J. court suit was dismissed for want of jurisdiction November 15, 1919. A third suit was filed in the F. circuit court December 9, 1919. In construing the Kentucky statute, somewhat differently worded than our own, the court held: “* * * if it is made to appear, as in this case, that the litigant has already proceeded in the proper court, and of his own motion has dismissed the suit after the action was barred by limitation, the statute does not apply, and the bar is complete, although another action in another court was dismissed for want of jurisdiction.” (Emphasis added.) The point is made that the same principle applies here, where suit was first brought in the state court and voluntarily dismissed, and a second suit brought in the federal court. As stated the Kentucky statute is differently worded than ours, which may call for a different construction. An inquiry into that question we regard as unimportant here. The two statutes do have the same general objective, that is, to toll limitation during the period of pendency of a suit brought in good faith in the wrong court. Independently of the wording differences of the two statutes, there are two essential factual differences in the two cases: (1) in the Kentucky case the first
But aside from the effect of applying the reasoning in the Kentucky decision to the Texas statute and case at bar, we are clear in the view that the filing and voluntary dismissal of the state court suit could have no bearing upon the case other than upon the issue of bona fides in bringing the federal court suit, an issue which under
As to the first above-quoted statement in the motion—that our interpretation is “contrary to the ordinary and accepted meaning of the words used in the statute“—our views thereon are quite elaborately expressed in the original opinion. There is, however, one phase of the subject that was not therein directly touched upon.
As therein stated, in so far as concerns state law questions, the FDC suit was modeled along the same lines as Rule 37 cases in the state courts under
The motion is overruled.
Overruled.