*1 rate particular parties. it is not For the same reason directed making. reversed, are judgments courts both below dismissed.
cause is Opinion February 1958. delivered Rehearing April 2, overruled 1958. Reed v. David G. C.
Lorraine Reed Decided 1958. January No. A-6442. Rehearing overruled April (311 628) 2d Series *2 Matthews, Nowlin, Barrett, MaoFarlane & and Lewis' T. Tarver, Antonio, Jr., petitioner. all of for San Appeals refusing Civil erred in Court to hold as a respondent, Reed, matter law that David did not commence County his suit in El Paso to the commencement clearly showed evidence instant suit because uncontroverted request waiver for after he made peti- issue; the suit to did mention nor that citation Reed, any her tioner, exercise have Lorraine nor court, brought into until after had been Co., Temple 124 Texas v. Trust action for divorce. Powers her 951; Long 440, Long, 269 S.W. v. Shoemaker, history; Ricker, Lee no writ & Co. Moursund, Bergestrom Moursund, Ball, & Barrow and H. W. Antonio, respondent. all of San error, petitioner’s Garrity reply points Cited Freight Rainey, Texas Motor East *3 Appeals, Loftus, Moore Texas
Lines v. Dilworth, 538, 2d 940. opinion the delivered the of Court. MR. Justice Garwood brought by petitioner Mrs. Reed in In this suit our divorce by County, jurisdiction of a Bexar and of which we reason have Appeals, the de- of sole dissent the Court Civil properly the sustained is trial court the cision whether respondent-defendant the the husband based on abatement of against prior by peti- him pendency of a suit filed our divorce petitioner’s County. of the in El The contest tioner Paso respondent largely request on the failure of the to was based of in his El procure issuance Paso for some or petitioner’s after later and until the suit was fifteen months Appeals up- of therein served. The Court and citation Civil filed theory on that there was evidence trial court the to sus- held the finding respondent’s implied prior the latter that the of the tain good faith. 303 460. take a con- filed in We suit was trary view. 6, respondent’s 1955, suit was filed and June that of
The 1, 1956, February respondent’s plea the petitioner on the against being, course, Upon directed the latter. respondent request suit the made earlier the any time, at did waiver of citation petitioner for a not seek thereafter, fifteen months for some of citation when issuance finally part August, and served the latter issued it was petitioner’s February suit on following 1, 1956, respondent August on the process therein on service respondent petitioner’s suit The has not contended that diligence. good prosecuted itself was not filed in faith or with filing, suit, He does even that his after was not contend own diligence. exactly prosecuted position taken with His is wit, only majority Appeals, to that the Court of Civil physically issue whether at the time his filed he process prosecute intended to have issued and served judgment; finding implied suit to and that the of the trial court only supported Admittedly this effect evidence. testimony evidence is the thus referred to “Yes, leading question himself in sir” to which answered wehether, from his own counsel as to El Paso time his Attorney suit, he, respondent, filed the earlier intended “in good get prosecute faith out in that service case case judgment.” Everything in El final Paso to else in the record tends to than contradict rather this statement corroborate intention, except testimony, disputed by his peti- his own that of tioners, day effect or two before was to filed he her in had told Antonio that it been filed. San only involving pleas cases pending action might have been cited to us seem to rule to assume basic respondent husband, wit, as contended action is or is not a according action to whether it has (see has or “commenced” been Rule Texas Rules Civ. Proc.) according and that a suit is isor not “commenced” physically whether it was or was not the intention procure the issuance and service of and to *4 judgment. example, the suit to For in D. V. Anderson Co. v. Young, 631, 798, although 128 Texas 101 in S.W. we effect overruling sanctioned an the of otherwise valid in abate ground estoppel arising on the ment tion with of from fraud in connec filing suit, earlier the we nevertheless stated “* * * general rule, filing by peti a a suit is as commenced .prosecute judgment, tion with the bona fide intention it to to ** nevertheless, adding, physical filing that “the mere of petition to the not sufficient oust the in the Court which same jurisdiction.” subsequently suit is filed of active 101 S.W. 2d language is found in the similar of 800-801. Similar case Rus 737, 450, 733, Taylor, although Texas 49 121 sell v. S.W. the language specific in Russell case is somewhat more the in describ ing necessary including as intention the the intent “to obtain Co., Temple 440, also Powers v. Trust service.” See Long Long, 951; Texas 207, v. Company Sanguinet, Life Insurance v. Southwestern cases, court, holding latter the two the In 2d 727. the one, precedence to take the later broad suit over states filed with terms that suit is deemed to be commenced when get judgment. prosecute the to intent to out citation and case Co., Temple in Powers Trust which The relevant observation to discounts the failure the the earlier rather get discounted, citation, may since it re- out no doubt itself be 1925, imposing less or absolute fers to Art. more R.C.S. citation, duty has since been the to issue and that statute clerk contrary provisions of Rule replaced the somewhat Texas R. Civ. Proc. point the facts closely in on of these decisions are
None long element of instant case. None of them the the involved filing the prosecuting prior to the earlier suit give one, priority did to the later suit later while those which ground estoppel or similar conduct on so on the for fraud plaintiff. clearly part them indicate of the earlier None of “good the earlier suit the rule of faith” whether applied in cases in- to or is intended same as suit, volving tolling do nor of the statute of limitations dealing ques- any expressly with this latter we know of tion, decision evidently although Taylor, supra, in Russell the court Shoemaker, Ricker, rely Lee & Co. v. did on our decision 22, 16 was a limitations case. However, might language as cited cases such above argued support rule contended readily hardly apply intended could have been various court, imaginable situations not before in which fact intent the filer of the earlier suit the time a mere undisclosed delivering the clerk seem to be rather would determining prevail should test whether dubious opposing party. by the one later filed over filer, filing, example, if the first at the moment of ad For get process mittedly have an intent out or did not suit, days acquired thereafter such an but within few actually had to the intent suit, plea in latter would seem or second dinarily Conversely, appear good. would
to be reasonable originally suit, get an filed with full intent *5 that earlier to hold judgment prosecute the to matter but later in out abandoned, ordinarily prevail should not over later suit effect might said be to have after such abandonment occurred. filed Johnson, in Bevil v. 307 S.W. 2d reflected As Bevil, may reversing properly 304 S.W. 2d Johnson diligence prosecution, past dismissed for lack of its not- be withstanding at plaintiff’s objection to the dismissal hearing corresponding manifestation of his effect a judgment. prosecute (thereafter, It least) intent to at would given justifies of a seem that if a set of facts dismissal suit over it, protest plaintiff that he of the wishes subordinating the justify facts same same would also involving subject opposite party by one later matter. words, pleas pend
In other in the matter of action ing, “good physical filing the test of faith” the time of of the always being apply, earlier suit should not the result plea ing may defeated reason of matters accru
subsequent to the actual earlier suit. From general seems in this it type turn to follow that in cases same case, governing as the instant rule well be sub stantially applied involving tolling the same as that in cases the statute of limitations suit. objection see no,
We serious to a as that rule such last stated. hardly important any There can difference policy between the policy the rule in behind the limitation cases and a which in ef- impose pleas upon fect would kind limitation in abatement may, pending. course, argue for action One reasons the in a social couraged divorce case should not be dis- delaying prosecution from earlier suit. But we hardly say knowledge can as a matter of our own that such an illogical exception otherwise for divorce cases would cause a materially breaking lesser number of lastingly homes to be that would otherwise be the broken case. It would ssem speculative say it would. rather only would arise exceptional spouses in the rather case in reside counties; exceptional and even in cases, in different these gone having original plaintiff, so far as retain counsel and suit, usually has no doubt citation issued and prompt- file regard ly, such to whether is or not necessary without spouse. Moreover, the other a later suit forestall it could be getting requiring that a rule out citation prose- cuting socially itself have the the suit will desirable effect of all suits in instances in postponing the which there is of reconciliation. chance some turning cases,
Now, to the limitations these themselves some altogether terms not rule in state the clear. holding In times by suit, they tolled been have speak the statute sometimes *6 filing, suit, as if the the at the time of is intent filer exclusively go controls, yet what and to his intent on ascertain filing. and at time of reference to his conduct after the both Shoemaker, supra, example, Ricker, in Lee For & Co. v. intent, the the which filer testified effect his time filing and, indeed, thereafter, case, his but said get year approximately had for been unable out citation costs, pay was held because of lack of funds wherewith to the interrupted, that, law, al- as a matter of statute was not the though referring original his as the also intent test. See Owen However, Eastland, City 2d 178. 78 S.W. prosecution appears expressly now to be settled diligence necessary to toll the Buie order statute. suit with refused; Couch, wr. er. Texas Slattery, In the Buie Adams v. case, delay getting months in citation was in which a of nine out law, tolling statute, held, prevent as a matter of court language quoted approval of an earlier decision to with pro- must fide intention also that that “there bona effect diligence and due exercised that such cess issued and served (emphasis supplied). process issue The Adams and be served” effect, and it involved the statutes of is to the same while case Ricker, land, possession of it cites & Co. v. Lee Shoe- adverse involving maker, than supra, other statutes other and decisions land. those restricted indicated, apply have concluded to rule of
As above we This, pending. limitations cases the matter of action light cited, holding that, limitations decisions entails the filer the first suit at time whatever the intention of original clerk, depositing his lack of his diligence getting out and thereafter otherwise actual ordinarily plea of prosecuting suit will defeat his his against that, second suit. It also follows action case, considerably there was more the instant cited, than in some of the limitations cases requesting citation therefor, respondent’s plea in abate offered excuse law, should, a matter of have been overruled. The above as ment testimony of the as to his intent at the mentioned original petition lawyer with the clerk at left his El time being immaterial, must the rule that he use due Paso use it. merely intend to judgments of Accordingly both courts below must be trial on the cause remanded merits. It is so reversed ordered.
Opinion January 8, 1958. delivered Calvert, Smith, joined by Mr. Justice Justices Walker dissenting. Greenhill, *7 disagree holding that, law, I with the a as matter of plea in abatement should have been overruled in this case. More important, however, disagree I with the on which the basis majority predicate holding application their and their rule pendency limitation cases to based on the abatement involving of a subject and matter. preparing hope In improve and I this dissent cannot to upon majority opinion Appeals; of the I Court Civil can enlarge only on it. involving special Cases limitations of actions fall into ca-
tegory
statutory
and
policy
wholly
involve
and
factors which are
pleas
irrelevant
to
pending.
abatement based on
suits
practically
In
provided
all of the limitation statutes it
prevent
“brought
bar of
limitations
must be both
prosecuted”
given period.
within
undoubtedly
This
accounts
deciding
for the fact
such cases our courts in their
opinions
emphasized
have in some
plaintiff
the intent of the
at the
his
time
suit was
emphasized
filed and in others have
his
subsequent
conduct after the
suit.
if
In such cases
plaintiff
would
only
avoid the bar of the statute he must not
physically file his
awith
fide
bona
intention to have
citation issued and
judgment,
served and to
final
suit to
suit,
and thus commence his
but
must also there-
diligence
prosecution
Diligence
after exercise
in the
of his suit.
prosecution
require diligence
actually
of the suit would
obtaining
very
the issuance and service of citation. This
distinc-
Appeals
tion was made
the Commission of
in Hannaman v.
Gordon,
requiring
S.W.
statute was involved
“brought”
only
prevent
that suit
the bar of limitations
brought
held that
and in which it was
a suit
within the limi-
though
period
tation
was not barred even
was
issued
years after suit
spite
for more than two
was filed and in
jury
negli-
fact
found that
further
gent
was
causing
process.
issuance and
in not
earlier
service of
Gordon, although apparently
overruled,
Hannaman v.
never
controlling
value as
authority
most of its
has lost
in limitation
subsequent
decision of this
cases because
Court in Owen
Eastland,
City
178. See also
McClatchy,
Hughes
writ
policy reasons
refused,
case the
But
in the
n.r.e.
even
Owen
prosecuted
are
given
requiring
that suit be
limitations,
peculiar
to avoid the bar
to suits which seek
prior-suit-pending applicable are not in the least
(78
following quotation
are
pleas.
found
The reasons
179):
early day it
statutes
“At an
held that such
was
[limitation
titles,
suppress
repose
quiet
are ‘statutes of
statutes]
arising
proof
from the
frauds,
supply
and to
the deficiencies of
antiquity
ambiguity, obscurity
transactionsand
such
statutes should ‘receive
rule
interpretation
laid
that limitation
down
terms,
as would defeat
with their
consistent
policy
suppressed, and advance
mischief
intended
designed
promote.’
they
v. Frank-
remedy
Gautier
were
lin,
It was on the requiring suits the statute the of case that the Owen “brought” years only never- within four judgments be set aside obtaining diligence and issuance required the also theless process. further said: The Court service of suppose that, passing filing hardly this “It is reasonable statute, Legislature considered that the mere the expel prescribed time the evil which the the would suit within designed more to con- to reach. It is far reasonable statute was by the de- was to afford means the intention clude disproving may merits of relieved of in the suit fendant him, against where, through fault of asserted the claim until the dis- called to defend means of plaintiff, he is not through lapse presumably lost of time.” is proving same Slattery, of Adams v. 156 recent case In the again emphasized 859, 872, that to avoid the bar we of commence his must suit and a suitor both limitations diligence. with they have apply “concluded to majority state The pend- matter cases to the action limitations rule of ing.” pronouncement many that this respectfully submit raises I legal many complicated prob- lead and will questions serious contemplated the court. Some of them not now lems anticipated. e.g., situations, limitation one in which the are two
There during expire delay applicable period would not issuance period applicable service one in which rights expire during delay. governing would rules such situations. are not the same the two speak majority applying When the rule of limitation “the holding delay cases” and conclude that a of fifteen months obtaining will, of citation as mat- issuance service law, unavailing they ter of render necessarily reject applied situation, the rule in the first period expire during delay where would of limitation not obtaining diligence issuance and service of citation lack respect consequence. example, is of thereto For if suit promissory years aon note two after its due date and cita- tion the until fifteen issued months thereafter statute of limitation is nevertheless tolled and a in bar setting four-year up statute and based on lack of obtaining good. in Evidently, issuance and service of would not be
therefore, majority apply mean that we will prior-action-pending pleas applicable the rules in the second situation. Where do those rules lead us? period Where a expire during delay, would limitation slightest delay
even the
attorney
directed
or his
prevent
issuance or service of citation will
the mere
tolling
aof
suit from
a statute of limitation. See Reid v. First
Mabank,
National Bank
App.,
Texas Civ.
history (a
;
no writ
days) Higginbotham
of 2
Bros. & Co.
Callaway,
history
no writ
*9
(a delay
;
days)
Smith,
242,
of 13
Bates v.
80 Texas
308 406, App., Wilson, 225 writ re- Phillips Texas S.W. v. completed (delay could not be service ordered because fused ; Hughitt Trent, court) Texas Civ. v. for the next term time history (delay 445, ordered so that App., 209 writ S.W. employ attorney). an plaintiff time to could have delay Furthermore, a in the issuance plaintiff a orders when to run a limitations continues statute of and service though of the issuance has filed a waiver the defendant even McWhorter, of citation. Estes and service v. 887, history.
182 no writ S.W. adopt applied in situations as it is If we the limitation rule during delay period expire issuance or where the would citation, plea a in abatement of a we hold that service of will prior second suit must be overruled when days, irrespective of the delay suit has of from 2 30 ordered though has the defendant reason for the even issuance and service? waiver of
The fundamental involved jurisdiction. is one based on subject involving parties and two suits mat- When jurisdiction are each of ter commenced in courts coordinate subject jurisdiction parties which has matter settled, jurisdiction try courts case. It is well both have however, has first commenced court in which jurisdiction try and the exercise of that active the case jurisdiction may not be interfered with the court 1, Ward, v. 116 285 suit was last filed. Texas Cleveland 813; 1063; Campbell, 82, Way Texas 24 v. v. Conn 419, 1067; Thomp- Bottling Co., Texas Coca Cola Mills, Bag & 286 S.W. son v. Fulton Cotton Lancaster, 2d 303. But 155 Texas 291 S.W. Lancaster v. jurisdic- exercising an active court from prevent the second parties make known to the court try must the case tion prior jurisdiction. court has that another plea in abatement McCurdy Gage, Ward, supra; Cleveland Moreover, contested. 2d 56. The *10 estop and conduct themselves from fraudulent acts their right acquiring juris- in the court first insisting to trial aon Mfg. Co., App., Texas Com. v. Allis-Chalmers Mitchell diction. Taylor, 450, 121 Texas 1099; 49 2d Russell v. S.W. 291 S.W.
309 733; 631, Young, Texas V. D. Anderson Co. v. 128 101 S.W. 2d 798. plea setting up prior
A in abatement another has court jurisdiction requires taking filing party evidence. If grounds estopped urging only not from it overruling plea, supported by cases, are, the decided broad- ly, (1) prior that a suit has not fact law been commenced or jurisdiction; (2) another court coordinate or that it is not pending; (3) still or parties; does not involve (4) subject matter; or (5) it does not involve the same or parties may substantially in the obtain they See, all of the generally, relief to which are entitled. 1 93-126, Revival, Texas Jur. Abatement and secs. 67-91. None foregoing grounds overruling exist for in the instant case unless it the first one. The narrow is, then, by respondent this case had a suit been commenced the El Paso District Court? only controlling relevant and applied rule in deter-
mining 22, when suit is commenced is Rule Texas Rules of Procedure, formerly 1971, Civil Article It R.C.S. states that county suit in the district or court is commenced petition my with the clerk. In so far as research has dis- closed, the jurisdictions courts this state hold, and of other similarly statutes, under worder that a suit is commenced petition with pro- a bona fide intention to have issued cess and served and judg- the suit to final Young, 631, ment. See Anderson v. Co. 128 Texas 2d 798; 450, Taylor, Russell 733; v. 121 Texas Powers Co., Temple 440, Long Trust Long, pp., history; 269 S.W. no writ South- Sanguinet, western Life Ins. Co. v. history, Actions, no writ (2). C.J.S. sec. 129b Thus the true test of whether suit has been commenced good in time in another court is the of the suitor at faith physically petition the time he filed his clerk and not subsequent prosecution his of the suit. Of course testimony good or his statement of his faith or of his in- tention at the time he filed his does not foreclose the good faith, it, matter. His or lack is to be drawn from all the relevant facts circumstances and is to be established good as a fact as faith and intent are established in all other of the law. fields *11 a lack of evi- that there is find or hold majority not do The finding respon- implied that support the trial court’s
dence having- good of faith intention his suit with dent had filed to final prosecuting the suit of and issued entirely as immaterial. Indeed, they that matter treat judgment. holding finding upon a entirely They judgment their base has prior in time if commenced that even negligent it. overly prosecution of been nevertheless and additional opinion thus two new majority adds The abatement, overruling plea in grounds prior-suit-pending a for express- holding by way dictum. It is by express and one one though prior suit may even ly plea that a overruled held be good rules the limitations filed in if was faith within obtaining negligent issuance has cases suitor been a by way of dictum or service of citation. It is indicated good may though if plea filed in faith also even be overruled negligent opinion has is of the the suitor the court been recently Only obtaining setting prior a and trial of the suit. grounds the add as we declined to new in Wheeler Williams overruling plea a in abatement there advanced for reasons pending. prior suit hearing holdings foregoing authorize the court
Both of the plea question rightfully to decide a which should a in abatement pending, that suit is decided court which be negligent is, in the suit has been so whether prosecution of his suit that he should be from barred for prosecuting it further and his suit should be dismissed want prosecution. properly is a That reached motion prosecution filed the court in for want of which to dismiss pending, is addressed which motion invokes the case is Johnson, discretionary powers that court. Bevil the broad right The to exercise discretion usurped by ruling- a deciding second court in it should plea prior-suit-pending a in abatement. merits of on the holdings a a stride from the in this case to short It but example, prior-suit pending a holding, in which a court may ground it filed overrule on the plea in abatement it rather than with court in properly lies with which venue subject involving matter a suit though first court has even before prior in time it has not acted. on which If decision of plea privilege from the first removed court sim- questions such pie expedient of a contest objects its its are defeated.
loses much of force and beneficial principles I have referred are illustrated and *12 recognized by Wheelis, App., court in the Wheelis v. 2d also In that case it is made to divorce case. appear custody that the husband had filed a divorce child against County. suit in his wife the District of Court Smith Thereafter, against the wife filed a similar suit the in husband County, prayer of District Tarrant Court with for an in- junction prevent prosecution the of the suit in husband’s County. prior-suit-pending Smith The husband filed a in County abatement in Tarrant suit. The was contested ground and overruled on the that the husband had not been County of preceeding resident filing Smith for six next months required by reversing of his suit as judg- statute. In ment of the trial Appeals court the Court of that Civil observed the existence or statutory non-existence of the husband’s resi- qualifications dential “for was the determination of the court sought,” in is (226 227) which the relief and continued : “* * * In the case before us County the Smith Court has had no opportunity pass upon jurisdiction pending its own case it; before nor has it had an occasion to determine whether or appellant’s made; not qualification residential fraudulently was nor any indeed has that subject. court heard evidence on presumption prevails The properly that that will act court when appellant’s County arises. When case in the Smith necessarily Court on for trial comes the court will called upon to jurisdiction determine whether or it not has subject matter and will hear evidence the truth allegations concerning plaintiff’s qualifications. made But appears judgment it from in entered the case us that before County already the Tarrant District Court has decided those questions adversely enjoined in that case and him trying acquiring from jurisdic- those issues in the court first proceedings.” tion. Our laws not do sanction such lacking so also in Just this case. If been has so prosecution County of his El suit Paso pending that amounts to no suit at all the District Court county proper adjudicate proper court to that fact on prosecution. motion filed to dismiss for want majority opinion problem leaves another unsolved. A prior-action-pending plea filed in a suit unavailing. Asher, Hillmer v. first was commenced Land App., Dallas Joint Stock 29 S.W. Texas Com. writ Sutherland, Bank v. respon- County may set El Paso history. The District Court trial petitioner’s suit is set for for trial before suit dent’s holding majority County Are the District Court.
the Bexar respondent’s try jurisdiction to not have El Paso Court will suit? light of
Coming case in the to a of the instant discussion controlling rules, prepared I to concede proper am particularly evidence, facts and circumstances process, obtaining and service of the issuance fifteen months County suggest respondent’s strongly El Paso procuring the fide intention of commenced the bona final prosecuting the and service issuance plea in 22, as a for his judgment, required Rule basis as *13 noted, testimony subjective of his As heretofore his abatement. state, if, controlling, majority there were as the is not intent judg- support the court’s record to trial other evidence in the long agree delay, ment, con- I would be inclined process on was issued with the fact sidered process petitioner only respondent had served with after been negatived good suit, conclusively his faith com- petitioner’s County. But there is other his suit in El Paso mencement of support judg- favorably which, viewed most evidence finding implied ment, support the trial court’s will Respondent good faith. testified respondent’s suit was he had in- petitioner his been filed after suit had that he told lawyer to file and when he had reason believe his structed respondent told her testified filed. Petitioner it had been going get were more or a Thereafter there divorce. he was negotiations parties, personally and sporadic less between attorneys representing correspondence, and between usually children, parties, agree upon custody a matter finally up suit bitterness if unsettled when calculated ready stir discussed, at least one for trial. On occasion accomplish, These facts cir- but failed to a reconciliation. cumstances, my support trial opinion, for the furnish some delay procuring issuance and court’s refusal hold that conclusively negatived process the bona fide inten- service of judgment suit to tion his when filed it. will, delay issuance and of citation as
If mere service law, plea prior in abatement on á matter of defeat based litigants pending, penalized withholding will be citation being while compromise honest efforts of settlement and are hand, made. On other if in the issuance and service bearing good as treated on the circumstance faith of the suitor he continue honest of set- his efforts good protecting tlement at while time in faith rights venue, etc. right majority they But if the even in the conclusion reach, theory; I submit that it has an been reached on erroneous that pending plea to test the merit aof in abatement on based hour, many should
we this late de- theory us, cisions adopt based on sound before new rule drawn wholly from a class different of irrelevant of a cases. merit diligence solely abatement should not be tested or procuring lack of of the suitor in the issuance and service of as is the merit of a in bar based on a statute of limitation.
Opinion delivered, January 8, 1958.
Rehearing April 9, overruled 1958. Mill, Feed Edwards Inc. v. Johnson William Warren January No. A-6427. Decided 1958. Rehearing April 9, overruled (311 232) S.W. 2d Series