Reed v. Reed , 303 S.W.2d 460 ( 1957 )

BARROW, Justice.

This suit for divorce, hereinafter referred to as second suit, was filed by appellant, Lorraine C. Reed, against appellee, David G. Reed, in the 45th Judicial District Court of Bexar County, Texas, on February 1, 1956. Appellee answered by plea in abatement, alleging in substance, that prior to the commencement of second suit, on June 6, 1955, he filed his petition against appellant for divorce in the 65th Judicial District Court of El Paso County, Texas, hereinafter referred to as first suit, which involves the same cause of action, the same parties, the same subject matter and the same issues as second suit; that first suit is still pending, and that trial thereof and judgment therein will finally dispose of the issues presented in second suit. Appellant, answering said plea in abatement, denied that first suit was commenced on June 6, 1955, or at any time prior to the filing of second suit, alleged that appellee did not file such suit with a bona fide intention to obtain service and prosecute his suit, and denied knowledge or notice of the filing of first suit prior to the filing of her suit.

Upon a hearing of the plea in abatement, both appellant and appellee introduced evidence tending to prove their respective contentions. The court, after hearing such evidence, sustained the plea in abatement and dismissed the second suit for divorce. This appeal is from that judgment.

It is not disputed that appellee filed suit for divorce in the 65th District Court of El Paso County, Texas, on June 6, 1955, that appellant filed the second suit in the 45th District Court of Bexar County, Texas, on February 1, 1956, nor that each party plaintiff, at the time of filing the respective suits, had the requisite domicile and residence qualifications to maintain such suits. It is not disputed that both suits involve the same parties, subject matter and issues, that the suit filed by appellee in the 65th District Court of El Paso County is still pending, and trial of that case would be determinativé of all controversies and issues involved in second suit filed by appellant against appellee in Bexar County. Appellant contends that the evidence shows as a matter of law that appellee did not file the first suit and exercise diligence to have process issued, that he did not request a waiver of citation, and gave no notice of the suit to appellant; that the great and overwhelming preponderance of the evidence shows that appellee did not file his petition in El Paso County in good faith, or with the intent to prosecute the same; and that the great and overwhelming preponderance of the evidence shows that ap-pellee, after filing the first suit in El Paso County, exercised no diligence to have process issued or to otherwise give appellant notice of the filing of same.

In passing upon appellant’s first contention we are to credit all evidence favorable to the trial court’s implied finding, and disregard all evidence adverse thereto. Springall v. Fredericksburg Hospital and Clinic, Tex.Civ.App., 225 S.W.2d 232; Henwood v. Neal, Tex.Civ.App., 198 S.W.2d 125; Mortensen v. Mortensen, Tex.Civ.App., 186 S.W.2d 297.

Viewing the evidence in the light of the above rules, we find, in addition to the above undisputed facts, that appellee testified he filed the first suit in good faith with the bona fide intent to prosecute the same; that he informed appellant that he had done so. The testimony of both parties shows that during all the time material to this controversy they contemplated a divorce. On at least one occasion they discussed, but failed to accomplish, a reconciliation. That during the pendency of appellee’s suit they negotiated, personally and by correspondence, and through their respective attorneys, in an effort to agree upon the custody of the children. Appellant testified that appellee told her that he was going to get a divorce. A party may testify as to his own intentions. His testimony, however, is not conclusive, but it may be considered along with the other evidence in the case. Tuerpe v. George Saunders Live Stock Commission Co., Tex.Civ.App., 245 S.W. 741 (writ dismissed).

Where, in a hearing before the Court, the evidence favorable to the judgment rendered by the court raises a question of fact on which reasonable minds might differ, the appellate court is not authorized to set aside the findings of the trial court. Poynor v. Varner, Tex.Civ.App., 266 S.W.2d 462; Springall v. Fredericksburg Hospital and Clinic, Tex.Civ.App., 225 S.W.2d 232.

We have concluded that the trial court’s judgment has support in the evidence, and that the judgment and implied findings are not contrai-y to the great and overwhelming preponderance of the evidence.

The judgment is affirmed.