
    Allen v. Menard and others.
    'The 152d section of the act of 1846, to regulate proceedings in the District Courts, does not. authorize nor require an injunction which is properly ancillary to a suit pending to her returned to a county other than that wherein such suit is pending.
    Appeal from Galveston. Tiie appellant brought suit against Eeed, Menard, and Butler. lu his petition he alleged that he had brought a suit against Eeed iu Harris District Court, returnable to the next term of that court, for fraudulent negligence in not having collected a debt owned by plaintiff' against one Richardson, which debt was placed in the bands of Eeed for collection; that Menard is indebted to Eeed, which indebtedness has been secured by a certain ■conveyance made by Menard to Butler; that Eeed is a non-resident of the State; that he knows of no property belonging to Eeed from which lie could •obtain satisfaction of such judgment as he may obtain against Eeed. Ho prays writs of injunction against Menard and Butler, restraining them from paying over the debt so described to the said Eeed, and prays that Eeed, Menard, and Butler be cited to answer tiiis petition. Writs of injunction and citation were ■ordered agreeably to the prayer of the petition, and issued. The defendant Eeed demurred and answered, and assigned for exceptions in support of his demurrer, first, that it is not competent for the court to sustain jurisdiction of the suit by injunction, as it appears there is another suit pending in Harris District Court for the same cause of action; second, this court will not sustain a suit in this district ancillary to one in another district; third, that a plain, ■adequate remedy was provided by the laws of the land, and an injunction was not necessary; and, lastly, that one suit, properly instituted, would have given plaintiff adequate remedy, and this multiplicity of suits is illegal and vexatious. The answer denied all the facts alleged in the plaintiff’s petition from which any equity or legal liability could arise against him in favor of the plaintiff. The defendant Butler demurred and answered. In his answer he admits that he holds as trustee the debt in favor of Reed, and secured to him by a deed of trust; denies having any effects in his hands besides. The demurrers were sustained by the court and the suit dismissed. The plaintiff appealed, and the order sustaining the demurrers and dismissing the suit are assigned as error.
    Franklin, for appellant.
    
      J. B. Jones, for appellee.
   Lipscomb, J.

If the correctness of the judgment of the court below is to be decided independently of any statute on the subject, the exceptions would seem so clearly to be well taken as not to require any illustration of their soundness. The plaintiff, however, supposes that his suit can be sustained by the last clause-of the 152d section of our act of 1846, to regulate proceedings'in the District Courts. The section referred to reads as follows: “That writs- of injunction granted by any judge of the Supreme Court, if to stay proceedings in a suit or execution ou a judgment, shall be returnable to and tried in the District Court of the county where the suit is pending or the judgment was rendered. Writs of injunction for other causes, where the defendant is an inhabitant of the State, shall be returnable to and tried in the District Court of the county where the defendant, or if there be more than one, where either of the defendants has a domicile.” To sustain this suit is so repugnant to the well-settled practice and sound policy which forbids the cutting up and deciding a case piecemeal in different suits, that to make us feel authorized to do so' would require that we should believe that such was the intent of the Legislature, to be deduced from a fair construction of the language employed in the statute.

It is not believed the act referred to will bear the construction claimed for it by the plaintiff’s counsel. The allegations contained in the petition-show that Reed is a non-resident. He is really the defendant in the suit, and the only one, it would appear, in the suit in Harris District Court. The statute would not applied to the case, and could have interposed no impediment to his asking and obtaining any ancillary process from that court against Menard and Butler that was thought necessary to the enforcement of his rights, returnable into the same court where the suit was pending. The defendant being not an inhabitant of the State excepted the case from the part of the section relied on.

But suppose a construction should be given to the law more indulgent to the-views of the plaintiff, and that it might apply to the nominal defendant as well as to the defendant who really had the only interest to be contested in the suit. The application of such a construction would only be that as this defendant was a non-resident, the first suit should have been brought in the county where the nominal defendants were domiciliated, and would have furnished no reason in support of splitting and making two suits. The real defendant, being a non-resident, could not claim the privilege of being sued in any particular county. Hence, if the statute would have borne this last construction, the plaintiff would have only been compelled to bring the first suit in the county of Galveston. In any aspect in which the statute is to be viewed it would not liave authorized two suits. The remedy sought in this suit was accessory to and growing out of the suit in Harris county, and could not constitute a distinct suit with any regard to the regularity of judicial proceedings.

Judgment affirmed.  