Langham v. Thomason
Texas Supreme Court
Appeal from Leon. This suit was brought by the appellees against the appellant upon a promissory note made by the latter for the payment to Enoch and William Grigsby of $1,000, find by them indorsed to the appellee, Theresa A., wife of Moses Thomason. The defendant pleaded in abatement a former action pending between the same parties for the same cause of action, and at the same time answered to the merits.
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Appeal from Leon. This suit was brought by the appellees against the appellant upon a promissory note made by the latter for the payment to Enoch and William Grigsby of $1,000, find by them indorsed to the appellee, Theresa A., wife of Moses Thomason. The defendant pleaded in abatement a former action pending between the same parties for the same cause of action, and at the same time answered to the merits. In support of liis plea in abatement he exhibited the record of the former suit, which appears to have been an action against the defendant by the wife alone for the same canso of action…
1Opinion of the CourtWheeler, J.
The former action pleaded in abatement in this case was an action brought in the name of the wife alone, without the right or authority thus to sue. It appears to have been an action which, as brought, the plaintiff could not have maintained. It did not dispense with the necessity of the present suit, and was not., therefore, such an action as could bo effectually pleaded in abatement of a subsequent suit by a party entitled to maintain the. action. The pendency of a prior suit will not abate the second if the first is so defective that the second is necessary to secure the demand. (1 Root…
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