Before a prior suit can abate one subsequently filed, the suits must present an identity of parties and of subject matter. 1 Tex.-Jur., p. 106, sec. 76; 1 C. J., p. 61, sec. 80; Cooper v. Mayfield, 94 Tex. 107, 58 S.W. 827, 57 S.W. 481; Langham v. Thomason, 5 Tex. 127; Kansas City, etc., R. Co. v. State, 155 S.W. 561; Keator v. Whittaker, 147 S.W. 606; Rochelle v. Pacific Express Co., 56 Texas Civ. A., 142, 120 S.W. 543; Pullman v. Hoyle, 52 Texas Civ. A., 534, 115 S.W. 315; Mutual L. Ins. Co. v. Hargus, 99 S.W. 580; Rieden v. Kothman, 73 S.W. 425; Orient Ins. Co. v. Moffatt, 15 Texas Civ. A., 385, 39 S.W. 1013; Payne v. Benham, 16 Tex. 364; Kansas City, etc., R. Co. v. State, 155 S.W. 561; Allen v. Burr's Ferry, etc., R. Co., 143 S.W. 1185; Garza v. Jesse French Piano, etc., Co., 126 S.W. 906; Mutual L. Ins. Co. v. Hargus, 99 S.W. 580; Silcock v. Bradford, 40 S.W. 234; Bryan v. Alford, 1 Texas, A. Civ. Cas., Sec. 85. [Between 400 and 500 additional cases cited by counsel are here omitted.] An amended petition introducing new parties and entirely new subject matter can not relate back but is merely the beginning of a new suit, so far as concerns either the new party or the new matter. Ayres v. Cayce, 10 Tex. 99; Haddock, Reed Co. v. Crocheron, 32 Tex. 276, 5 Am. Rep., 244; East Line R. R. R. Co. v. Scott, 12 S.W. 995, 75 Tex. 84; Cotton v. Rand, 51 S.W. 838, 93 Tex. 7; Phoenix Lumber Co. v. Houston
As a general proposition, and without reference to the garnishment proceeding, this assertion of appellants is correct. Rochelle v. Pacific Express Co., 56 Tex. Civ. App. 142, 120 S.W. 543. Before such right can be asserted, however, the stakeholder must show himself entitled to the bill of interpleader, that he does not have an adequate remedy at law, and that it is necessary that he institute the equitable proceeding.
([Durrand v. Carrington] 1 Root [Conn.] 355; 7 Verm R. 124.)" See, also, Miller v. Drought (Tex. Civ. App.) 102 S.W. 145; Red Deer Oil Development Co. v. Huggins (Tex. Civ. App.) 155 S.W. 949 (writ of error refused); Wright v. Wright (Tex. Civ. App.) 235 S.W. 909; Rochelle v. Pacific Exp. Co., 56 Tex. Civ. App. 142, 120 S.W. 543; 1 Texas Jurisprudence, pp. 104 and 105, Abatement and Revival, ยง 75; 1 Corpus Juris, pp 89 et seq., Abatement and Revival, ยง 128; Holt v. Uvalde Co. (Tex.Com.App.) 269 S.W. 73; Wilson v. Avery Co. (Tex. Civ. App.) 192 S.W. 1130 (writ of error ref.). Without further discussion, an affirmance will be entered.
The right of interpleader existing and the equitable power of the court having been properly invoked, the filing of the bill gave the court, in the exercise of its equity jurisdiction, full power to hear and determine the claims and rights of ownership asserted to the fund of money in question by the several disputing claimants, and to adjust all equities involved, and by its final judgment to award and decree to each of the claimants, who established title thereto, whether legal or equitable, the particular portion of said fund belonging to such claimant. Legg v. McNeill, 2 Tex. 428; Rochelle v. Express Co., 56 Tex. Civ. App. 142, 120 S.W. 543; Melton v. Surety Co. (Tex.Civ.App.) 240 S.W. 574; Van Slyck v. Dallas Bank Trust Co. (Tex.Civ.App.) 45 S.W.2d 641; 33 C.J. pp. 461, 466-468. Plaintiff in error complains that the court erred in not sustaining his special exception to the answer and cross-action of defendants Pickett and Richardson wherein they asserted a right to a portion of the fund in controversy.
That court having acquired jurisdiction of the subject-matter and of the person of the garnishee, its equity power required it to render such judgment as would protect the garnishee from the claim of conflicting claimants, and for that purpose its jurisdiction extended to the bringing in of all parties necessary to the adjustment of such equities, even though they resided in other counties. In the case of Rochelle v. Pacific Express Co., 56 Tex. Civ. App. 142, 120 S.W. 543, 545, an assault and robbery had been perpetrated upon an agent of the company at Redwater, Bowie county, Tex. The company offered a reward for the capture and conviction of the party committing the crime.
Such character of proceedings, as in ordinary suits, shall be tried in the county of the residence of a defendant against whom substantial relief is prayed. That was the ruling and intended ruling in Rochelle v. Pacific Express Co., 56 Tex. Civ. App. 142, 120 S.W. 543. In that case J. F. Rochelle, a rival claimant to the fund, resided in Bowie county, where the express company filed the proceedings, and consequently that county was the proper county, or "proper forum," for the express company to have filed a complaint of interpleader.
If the residences of the claimants are in different counties, a petition for an interpleader may be filed in the county of the residence of either." Millsap v. Waco Mercantile Co., 145 Ga. 95, 88 S.E. 673; Bank of Tifton v. Saussy Huxford, 127 Ga. 457, 56 S.E. 513; Rochelle v. Express Co., 56 Tex. Civ. App. 142, 120 S.W. 543. The suit of the interpleader in this cause is one governed by the rules relative to equity practice, and such interpleader may under such rules select the proper forum having jurisdiction of all the parties and subject-matter in which to file his interpleader; that is, a forum within a county where one of the defendants has his domicile; but it would be unlawful, as well as inequitable, to permit an interpleader to prosecute his suit in a forum of a county situated several hundred miles from the county and domicile of all of the defendants, over their plea of privilege.
We think appellant was, under the undisputed evidence in this case, entitled to interplead the several claimants of the proceeds of said policy, as it did do. In addition to the authorities above cited, we refer to the following: Nixon v. Malone (Tex.Civ.App.) 95 S.W. 577; Rochelle v. Pacific Express Co., 56 Tex. Civ. App. 142, 120 S.W. 543; Melton v. American Surety Co. (Tex.Civ.App.) 240 S.W. 574, 575 (writ refused). The judgment of the trial court is reversed, and judgment is here rendered that Mrs. Lily Kinney, in her capacity as guardian of the minor, Johnie June McCrory, do have and recover of and from the appellant, Great Southern Life Insurance Company, a corporation, the sum of $805.90, being the amount due on said policy and tendered into court by appellant, less an attorney's fee hereinafter allowed appellant for filing its bill of interpleader in this case.
"The remedy of interpleader is allowed as a substantial right to the complainant, and he can seek the proper forum, to the end that in one principal action claimants might settle the contest among themselves, and not with him." Rochelle v. Pacific Express Co., 56 Tex. Civ. App. 142, 120 S.W. 543; Nixon v. New York Life Ins. Co., 100 Tex. 262, 263, 264, 98 S.W. 380; Melton v. Surety Co. (Tex.Civ.App.) 240 S.W. 574; Williams v. Simon (Tex.Civ.App.) 235 S.W. 257; Pulkrabeck v. Griffith (Tex.Civ.App.) 179 S.W. 282; Williams v. Wright, 20 Tex. 500; 5 Pomeroy, Eq.Jur. ยง 39; Bank v. Palmer (D.C.) 256 F. 680; Baber v. Bank (Tex.Civ.App.) 218 S.W. 156; Platte Valley State Bank v. National Live Stock Bank, 155 Ill. 250, 40 N.E. 622; Foy v. East Dallas Bank (Tex.Civ.App.) 28 S.W. 137, 10 L.R.A. (N.S.) 755, note. In Nixon v. Insurance Company, supra, it is said:
This should not have been, but the right to the fund should have been settled in the county court. Therefore the court erred in dismissing Lary from this proceeding. Rochelle v. Express Co., 120 S.W. 543; Westmoreland v. Miller, 8 Tex. 168; Iglehart v. Moore, 21 Tex. 501; 23 Cyc. 10. The second assignment of error is: