The opinion
On Appellant’s and Appellees’ Motions for Rehearing.
HUGHES, Justice.
All parties complain of our action in refusing to decide the issues presented on their merits.
In addition, appellant suggests that our judgment of dismissal will permit him to pay nothing and plead the statute of limitations when later sued. To forestall this possibility we ■ have concluded to modify our judgment by abating the suit until final disposition of the condemnation suit or until the parties by agreement dispose of this controversy.
Appellees assert that we are without authority to abate the suit because neither party filed a plea in abatement. We disagree.
In our opinion, the parties cannot, by failure to plead in abatement, compel us to bring ourselves in unseemly conflict with another local court of coordinate jurisdiction.
We quote from Cleveland v. Ward, 116 Tex. 1 , 285 S.W. 1063, 1071 , as follows:
“Mr. Freeman, discussing the very question here involved (in Volume 1, § 335), says:
*308 “ ‘It seems impossible that two courts can, at the same time, possess the power to make a final determination of the same controversy between the same parties. If either has authority to act, its action must necessarily be exclusive, and therefore it is our judgment that whenever either the state or the national courts acquire jurisdiction of an action and the parties thereto, this jurisdiction cannot be destroyed, diminished, or suspended by one of the parties bringing an action in another court, and that any judgment or order of the latter court is void so far as it conflicts with any judgment or order of the court first acquiring jurisdiction.’
“This extract from Freeman we believe states the sound rule, and the only rule which will prevent races from court to court by vigilant counsel, such as this record discloses, and that conflict in the exercise of judicial power in evidence here, which we believe was never contemplated under our judicial system. Courts are erected to settle controversies, not to multiply them. At any rate, the rule announced by Freeman is the one we adopt, and is consistent with that declared by Justice Lipscomb in 1852 in the Burdett case [Burdett v. State, 9 Tex. 43 ], cited above.
“What has been said is not in conflict with the doctrine of various cases that the pendency of a suit in another jurisdiction must be seasonably pleaded in abatement, that the plea may be waived, and that final judgment by default, or, in the absence of pleading and proof of the pendency of a prior suit will be sustained. See the cases of Cook v. Burnley, 11 Wall. 659 [ 11 U.S. 659 ], 20 L.Ed. 29 ; Cook v. Burnley, 45 Tex. 97 ; Blassingame v. Cattlemen’s Trust Co. [Tex.Civ.App.], 174 S.W. 900 ; Cattlemen’s Trust Co. v. Blasingame (Tex.Civ.App.) 184 S.W. 574 ; McCoy v. Bankers Trust Co. (Tex.Civ.App.), 200 S.W. 1138 ; see also 1 Ruling Case Law, pp. 19, 20.
“These opinions are authority for the proposition that, since the penden-cy of a prior suit is predicated upon a state of facts, the facts must be seasonably alleged and proved, and, unless this is done, the judgment of the subsequent court is conclusive on the fact of jurisdiction as upon any other fact. Freeman on Judgments (5th Ed.), Vol. 2, §§ 660, 662. This does not militate against our conclusion that, once the necessary facts are pleaded and admitted or proven, or shown by the undisputed record, as in this cas'e, the subsequent suit is abated and its orders void for want of jurisdiction.”
In McCurdy v. Gage, Tex.Com.App., 123 Tex. 558 , 69 S.W.2d 56, 59 , it was stated:
“In this state, as well as in courts of other jurisdictions, both federal and state, we have courts of co-ordinate jurisdiction, and it is highly important that the spirit of comity should at all times exist between such courts and a conflict of jurisdiction should be avoided. In order to maintain an orderly procedure and prevent unseemly conflicts between two courts when an action has been brought in one court and thereafter another action is filed in another court of coordinate jurisdiction, if it is thought that the two actions involve the same subject-matter, it is the duty of those engaged in the suit first filed to deal frankly with the court in which the second action is filed and in good faith make a full disclosure to the court with respect to what are the facts and issues involved in the case first filed in the other court.”
The facts were fully disclosed by this record, and our duty is clear, whether the parties pray for abatement or not.
*309 It is also suggested that the issues in this case are not the same as in the condemnation case.
The principal issue in this case is whether or not the lease obligation to pay rent will remain intact after- a portion of the demised premises have been condemned. All other issues are collateral to this issue.
In W. T. Carter & Bro. v. State, 139 S.W.2d 661, 662, 663 , writ ref., this Court said:
“Though the identical issues may not be involved in the two suits, if the is-, sues involved in the suit last filed are entirely dependent upon and concluded by the issues to be adjudicated in the suit first filed; then the second suit should be held in abeyance until the first suit is disposed of.”
The principal issue here will, or should be, determined in the condemnation suit.
We believe that judicial courtesy, comity .and the law require us to defer, for the present at least, to the County Court of Travis County.
We desire to add to the authorities cited in our original opinion, Tex. Pipe Line Co. v. Ennis, 127 Tex. 470 , 93 S.W.2d 148, 150 , where a suit for damages filed in the District Court was held to present issues involved in a condemnation proceeding, the ■Court saying:
“It appears from the statement of the case that the issues presented by Ennis’ trial petition, as well as the special issues submitted to the (jury), were necessarily involved in the condemnation proceeding pending in the county court when the present suit was filed, and were determinable in .that proceeding. Its jurisdiction had already attached. It is not contended that the county court proceedings were void. In fact their regularity was admitted upon the trial in that court. The district court erred in assuming jurisdiction and in hearing the case. Gulf Coast Irr. Co. v. Gary, 118 Texas, 469 , 14 S.W. (2d) 266 , on rehearing 17 S.W. (2d) 774 ; International & G. N. R. R. Co. v. Pape, 62 Texas, 313 .
“For lack of jurisdiction of the district court to hear the case the judgments of that court and Court of Civil Appeals are reversed, and the case is dismissed.”
Despite any legal pronouncement made herein, out actual decision is limited to holding that this is not a proper case for a declaratory judgment.
Both motions for rehearing are overruled. Our previous judgment is modified, however, to eliminate dismissal of this suit and, instead, we order it abated until final disposition of the condemnation suit or until disposed of by the parties.
Motions overruled.