Opinion
No. 3982.
March 24, 1931. Rehearing Denied April 2, 1931.
Appeal from Rockwall County Court; C. M. Isbell, Judge.
Suit by T. B. Bowen against the First State Bank of Fate. Judgment of dismissal, and plaintiff appeals.
Reversed, and remanded for a new trial.
This suit, commenced July 11, 1929, in a county court, by appellant, Bowen, as plaintiff, against the appellee bank, as defendant, was to recover $246 on account of usurious interest appellant claimed he paid appellee during the years 1927 and 1928. Appellee, in due order, filed a plea as follows:
"Now comes the First State Bank of Fate, defendant in the above entitled and numbered cause, and says that heretofore, to-wit, on or about the 4th day of May, 1929, same being before the commencement of this suit, this defendant filed suit against the plaintiff in the Justice Court of Precinct No. 5, Rockwall County, Texas, sitting at Fate, Texas, same being cause No. 5 on the docket of said court, for a balance of $21.81 alleged to be due this defendant by the plaintiff, and the plaintiff herein filed a cross-action in said cause in said justice court, alleging that the defendant herein was due the plaintiff herein the sum of $199.79 usury on the notes herein sued on. That said cross-action was the same identical cause of action in that suit as the present action in this suit, and upon a trial of said cause in said justice court a mistrial resulted and said cause of action has never been disposed of and is now pending in said court of Precinct No. 5, Rockwall County, Texas. The defendant further says that the parties in this and the said former suit in said justice court are the same, and not other or different persons, and the supposed cause of action in this and said former suit are the same, and not other or different causes of action. Wherefore defendant prays judgment of the court and that it be discharged with its costs."
The court after a hearing on the plea sustained it, and thereupon dismissed the suit and rendered judgment against appellant for the costs thereof. It appears in the record that it was "agreed by all the parties that a suit between the parties to this suit with defendant in this suit as plaintiff in the other suit, and plaintiff in this suit as defendant in the other suit, was filed in Justice Court Precinct No. 5 of Rockwall County, Texas, on the 4th day of May, 1929, by First State Bank of Fate against T. B. Bowen for the sum of $21.81; that on the 15th day of May, 1929, the cause was tried and a mistrial was declared; that this suit was based on a balance alleged to be due on a note held by First State Bank of Fate, Texas; that on the day of the trial of said cause in said justice court, T. B. Bowen, plaintiff in this cause, filed a counter claim in said cause amounting to the sum of $199.75; that said bank by its attorney filed exceptions to said counter claim, which exceptions were sustained to the extent that no evidence would be allowed on any item not pertaining to the note sued on; that the items ruled out by the court below comprised in the main the items sued on in this cause together with some which were made an issue in the trial in the justice court and upon which evidence was admitted; that no effort was made to bring this cause to trial since said trial in the justice court; that the notes filed in this cause upon which usury is claimed forming the basis of this suit were not offered or admitted in evidence at the trial in Justice Court Precinct No. 5, Rockwall County, Texas. No other evidence was offered upon the hearing of the plea in abatement, except that said cause is still pending in the justice court of Precinct No. 5 as originally filed, and said counter claim has not been withdrawn."
H. M. Wade, of Rockwall, for appellant.
E. D. Foree, of Rockwall, and Carl G. Miller, of Royse City, for appellee.
While confusion has existed in the decisions of courts in this state as to the rule applicable in determining questions like the one here presented, it seems to be now settled, Benson v. Fulmore (Tex.Com.App.) 269 S.W. 71; City Nat. Bank v. Sales Co. [Tex. Civ. App.] 297 S.W. 563; Davisson v. Eastland County [Tex. Civ. App.] 6 S.W.2d 782; Long v. Long [Tex. Civ. App.] 269 S.W. 207, in harmony with the holdings in other jurisdictions, 1 C.J. 45, that "the pendency of a prior action or suit for the same cause, between the same parties, in a court of competent jurisdiction, will abate a later action or suit either in the same court or in another court of the same jurisdiction."
It has been generally held the rule "applies only where plaintiff in both suits is the same person, and both are commenced by himself, and not to cases in which there are cross suits by a plaintiff in one suit who is defendant in the other; in other words, that where," as here, "the party defendant in the prior suit is plaintiff in the subsequent suit, the first suit can not be pleaded in abatement of the second." 1 C.J. 82; Id. 45.
The correctness of the qualification stated of the rule referred to is (we think with good reason and on good authority) questioned in Long v. Long (Tex.Civ.App.) 269 S.W. 207. We are inclined to think the holding in that case is correct, and probably would follow it were it necessary in disposing of this appeal to choose between it and conflicting holdings in cases cited in the opinion of the court in that case.
But, as we view the record before us, it did not appear that the cause of action set up in the instant suit was in all respects the same as that set up in appellant's pleading in the justice court, and on that ground it must be held that the court below erred when he sustained appellee's plea and dismissed appellant's suit. 1 C.J. 61, 62, 66, et seq. It appears in the agreed facts set out in the statement above that the counterclaim filed by appellant in appellee's suit against him in the justice court was for items, not described, aggregating $199.75, whereas this suit by appellant against appellee was for items described, aggregating $246.90. It is obvious, therefore, that this suit is not the same as the former suit so far as it is for items representing the difference of $47.15 between the sum appellant sought to recover in that suit and the sum he sought to recover in this one.
And on another ground it must be held that the action of the court below was erroneous. Appellee's plea should not have been sustained unless it appeared appellant could obtain in the suit in the justice court the full relief available to him in this suit. 1 C.J. 72. That he could not do that is plain, for the simple reason, if there was no other, that the justice court was without power to hear and determine a suit involving a greater sum than $200. Dixon v. Watson, 52 Tex. Civ. App. 412, 115 S.W. 100.
The Judgment is reversed, and the cause is remanded to the court below for a new trial.