A. J. Trawick v. Martin Brown Company, 74 Tex. 522

Stayton, Chief Justice. This action ivas brought by appellee on December 8, 1886, to recover from appellant a sum due on open account, and a writ of attachment was sued out and levied on lands belonging to appellant. On September 15, 1887, appellant filed an answer and a plea in reconvention seeking damages for an alleged wrongful use of the writ of attachment. The justice of appellee's claim was admitted.

Appellee pleaded in abatement of the action set up in appellant's re-convention that he had instituted an independent action in the same court on the same cause of action pleaded in reconvention, which was pending when the plea in reconvention was filed, and demurrers to the plea of appellant were subsequently filed. These exceptions were heard before the plea in abatement, and one of them sustained, but the others overruled.

After this was done the parties by agreement, as is shown by the bill of exceptions, submitted to the court the plea in abatement on the matters of law and fact involved in it, and upon an inspection of the record and the admissions of the parties the court found that the averments of the plea in abatement were true, and no question is made as to the sufficiency of the averments. It was, however, further admitted that though pending when the plea in reconvention was filed the former action was dismissed before the hearing of the plea in abatement.

So standing the matter, the court below sustained the plea in abatement and refused to hear the matters set up in the plea in reconvention, and on hearing judgment was rendered in favor of appellee for sum claimed, with foreclosure of attachment lien. It is now urged that the court erred in acting on the plea in abatement after action on exceptions to the plea in reconvention. These several pleadings were filed in due order and should have been so disposed of (Sayles' Civ.

Stats., arts. 1262, 1268); but if the court in its discretion heard them out of their order, this would not deprive a party of the right to have a pleading passed upon out of due order, unless it was one in its. nature such as the plea acted upon would raise. It appears, however, that the plea in abatement was heard by consent-of parties after the exceptions were acted upon, and the only objection made was to the ruling on the plea.

On this state of facts, were the rule otherwise than as stated, the agreement of parties and want of objection in the court below would preclude appellant from raising such a. question for the first time in this court. It is urged that the court erred in sustaining the plea in abatement for that the former suit had been dismissed before the plea was heard.

There are elementary writers and adjudicated cases which hold that if the first action is pending when the second is instituted the latter, on proper plea, and proof of that fact, will be abated, notwithstanding the former action may have been dismissed before the plea in abatement is filed or acted upon. In the case of Payne v. Benham, 16 Texas, 367, this rule was not followed. In that case it was said: “We are aware that by the strict rules, of practice in the courts of common law the facts so pleaded would have abated the suit last commenced.

We, however, regard it as a question of costs, not at all involving the merits of the cause of action.

If the; two suits had been still pending at the time the plea in abatement was-filed, we would have required the party to dismiss one and pay the costa before proceeding to trial on the other. * * * If the costs of the first suit had not been paid when it was dismissed, and that fact had been made known to the court, a rule could have been obtained requiring the cost to be paid or secured before the party would have been permitted to proceed with the suit.” This seems to us the better rule, and it seems to be in accordance with the weight of recent cases. Beals v. Cameron, 3 How. Pr., 414; Schmidt v.

Brown, 10 La. Ann., 26; Marston v. Laurence, 1 Johns. Cases, 397. Ho suggestion as to costs was made nor objection to the substance of the plea urged, and we are of the opinion that the court erred in sustaining it upon the facts declared to have been shown by the record and admitted by the parties. Appellee insists that it was not true that the first action was dismissed before the plea was acted upon, and attaches to his brief a certificate of the clerk of the court to that effect.

The bill of- exceptions shows that the dismissal of the first suit, before the plea was acted upon, was a fact admitted by appellee on the hearing, and the fact thus shown can not be controverted in this court in the manner attempted. It is suggested that the court below erred in overruling the exceptions to the plea in reconvention, and that for this reason the judgment should he sustained, even though the court below may have erred in its ruling on the plea in abatement.

The ruling of the court on the exceptions is not so presented as to entitle appellee to have it now revised; but if it be true that the exceptions should have been sustained, it would have been the right of appellant to amend, and he could not be cut off from that right by a decision of this court affirming the judgment against him on Ui point decided in his favor by the court below, not now presented for revision, and relating to matter which possibly may be made good by amendment if now subject to exception.

For the error of the court in sustaining the plea in abatement its judgment will be reversed and the cause remanded, and it is so ordered. Reversed and remanded. Delivered October 18, 1889.