
    HAILEY v. FENNER & BEANE.
    (No. 8712.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 25, 1922.
    Rehearing Denied Jan. 13, 1923.)
    1. Words and phrases — “Duress.”
    Any coercion of another, either mental, physical, or otherwise causing him to act contrary to his own free will, or to submit to a situation or conditions against his own volition, or interests, constitutes “duress.”
    [Ed. Note. — Eor other definitions, sée Words and Phrases, First and Second Series, Duress.]
    2. Courts <©=^511 — Relief from duress accomplished by action in court must be sought in tribunal wherein such action pending.
    Where plaintiff whose property had been attached in a foreign jurisdiction was apprehensive of injury thereto, and therefore deposited a certain sum in a .bank to the credit of the attaching creditors on condition that they would release the impounded property in the foreign jurisdiction, and thereafter immediately commenced suit against them to recover the deposit as made under duress, held, that the plaintiff’s proper legal remedy was in the foreign court and not in the state where the deposit was made, since, where the form of duress complained of is accomplished by action in court, the aggrieved party must resort to the very tribunal in which the cause of action constituting the duress is pending.
    Appeal from ICaufman County Court; W. P. Williams, Judge.
    Suit by W. B. Hailey against Fenner & Beane. Judgment for defendants on general demurrer, and plaintiff appeals.
    Affirmed.
    Wynee & Wynee, of Kaufman, for appellant.
    Terry & Brown, qf Kaufman, for appellees.
   SERGEANT, C. J.

During tbe year 1919, appellees, Fenner & Beane, instituted suit against W. B. Hailey, appellant, in the civil district court of Louisiana at New Orleans, for tbe sum of $940.59, with interest from June 12, 1919, and as ancillary thereto sued out writs of attachment and garnishment wbicb were levied upon certain goods and property of appellant and wbicb impounded $3,000 in money in tbe bands of John F. Clark & Co. at that place. Appellant, being apprehensive of injury to tbe property and goods so seized, agreed with appellees to deposit tbe sum sued for ($940.59) in the First National Bank of Forney, Tex., to tbe credit of appellees upon condition that the latter would release tbe impounded property in New (Orleans. This was done. Immediately thereafter appellant instituted tbe present suit in tbe district court of Kaufman county, Tex., against appellees, alleging that be did not at any time owe appellees any part of the claim upon wbicb tbe New Orleans suit was based; that tbe deposit in tbe bank at Forney bad been made under duress and sought to recover it back. Simultaneously with tbe filing of this suit, appellant garnished tbe deposit in tbe bank at Forney before it could, be remitted to New Orleans. On trial of the main case at Kaufman, appellees presented their general demurrer and special exception to the petition of appellant, which were sustained by tbe court on the ground that tbe facts set out in appellant’s petition failed to show duress. Appellant declined to amend and tbe cause was dismissed. From tbe judgment of tbe court sustaining the general demurrer, appellants have appealed to this court.

Tbe action of tbe court on tbe general demurrer is tbe sole question involved in tbe appeal. If tbe petition failed to allege facts constituting duress, tbe general demurrer should have been sustained; otherwise, it should have been overruled. Any coercion of another, either mental, physical, or otherwise, causing him to act contrary to bis own free will or to submit to a situation or conditions against his own volition or interests, constitutes “duress.” Especially is this true where one possessing and exercising the power of mind or of physical position or of financial advantage over another compels him by any of such means to do or to refrain from doing some act which would place him in a worse position than if he submitted. The law condemns and the courts will grant relief against all character of duress. The injured party in all instances has his remedy by resort to the tribunal of his choice properly having jurisdiction. A long line of decisions define, illustrate, and uphold this right. Smith v. Houston Nat. Exch. Bank (Tex. Civ. App.) 202 S. W. 181; Caldwell v. Auto Sales & Supply Co. (Tex. Civ. App.) 158 S. W. 1031, and cases cited therein; Clark v. Pearce, 80 Tex: 146, 15 S. W. 787; Ladd v. Southern Cotton Press & Mfg. Co., 53 Tex. 172.

But by pronouncement equally clear the courts in an exception to this general rule have said that, where the form of duress complained of is accomplished by an action in court, the aggrieved party must resort to the very tribunal in which the cause of action constituting the duress claimed is pending. Resort cannot be had to another and a different court in such instance. Ward v. Scarborough (Tex. Com. App.) 236 S. W. 434, and cases cited therein; Phoenix Land Co. v. Exall (Tex. Civ. App.) 159 S. W. 485.

Applying this distinction to the case at bar, it is clear that appellant’s proper legal remedy was in the court at New Orleans in which the injury complained of took place. The petition did not state a cause of action showing him entitled to relief elsewhere than in the Louisiana court. There was therefore no error in sustaining the general demurrer and the action of the court in such respect is here affirmed.

We are not unmindful of the fact that sustaining the demurrer, in its practical effect, results in appellant’s being compelled to pay over to appellees the sum impounded without a hearing on the merits in any court to determine the latter’s right to it. But the law cannot permit the perpetration of a greater injustice by allowing a litigant to repudiate the voluntary settlement of a pending case and to apply to a second tribunal for the relief he could have received from the first one. 
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