*1 irregular, we cannot filing motion was appellants were
see in what manner Appellants given more than were
harmed. notice, the mo- days and the fact that
ten filed than ten subsequently less
tion was
days hearing did shorten before the they notice of
period in had been on
Affirmed. COMPANY, & DOOR SASH
HOUSTON al., INC., Appellants, et Trustee, DAVIDSON, Jr.,
William C. Appellee.
No. 7581. Appeals of Beaumont.
May 9, 1974. May 30,
Rehearing Denied *2 Houston, Wright, for Emerson
William appellants. Kuperman, Spivey,
David I. Gibbons & Austin, appellee.
KEITH, Justice. appeal is a wherein 4, Art. relied Subdivision Ann.Civ.St., Vernon’s will des- suit. We parties they ignate appeared state- trial court. A somewhat extensive is re- background ment of the of the suit quired put controversy into focus. this suit Jay Levin instituted
Etta officers corporations, several their claiming suppres- a malicious and directors sought to payments sion dividend recover, derivatively, damages alleged mismanagement. Levins corporate bankruptcy, taken David- refuge son, Bankruptcy, substi- as Trustee was party plaintiff. tuted as a He maintained original claims Levins but, pleadings; in his third amended shortly original be- petition amended filed fore the on he added an additional cause action. alleged The new count in the pleading wrongfully that one R. F. had Michel1 pledge of certain owned foreclosed stocks Levin in the several corporations Mrs. prayer and his for relief “That the read: the shares stock sale of described above be overturned R. F. Defendant compelled Michel be to turn over such stock damages Plaintiff in the event com- awarded and a dividend be not pelled.”
One the individual defendants was a County resident of Travis while one of the corporate defendants was there- domiciled prove any in. Plaintiff made no effort to defendant, against any resi- Louisiana, Michel, pending resident of filed a discloses that matter is still special appearance long-arm challenging the undetermined in the trial court. jurisdiction of the trial court and our record non-resident, except adversary lieves his from making dent save also stock. fact admitted but bars the party disputing (em- himself from it.” hearing on very beginning At phasis omitted) supplied, citations ap- controverting plea, counsel for defendants, acting all of pealing plead entitled *3 court, read into then before the defendants prove and inconsistent of action and causes “stipulation”: a the record Thus, his plea seek to alternative relief. “ the foreclosure sale and his alter overturn pursuant to the Plaintiffs ‘That prayer damages by nate the al caused relief, the sale prayer for leged wrongful properly foreclosure were petition, stock described shares of single combined in Rules and suit. 47 pur- sold at the to-wit, being the shares 48, Procedure; Texas Rules of Mc the securi- ported sale under foreclosure Carte, 520, Kenzie v. 385 526 S.W.2d and Etta ty by Jay agreements executed Christi, 1964, Corpus (Tex.Civ.App., error pleadings, and described Levin e.); Albright Long, ref. n. r. v. on apparently occurred said sale 564, 1969, Amarillo, 2d 566 24, 1971, stipulate September 680, ;writ) Bage, v. 467 Cantu S.W.2d set hereby be is and that foreclosure sale ” Beaumont, 1971, 682 void.’ held null and aside and case, writ). pleaded In plaintiff his unexpected development, being an alternative causes of action and defendants a short plaintiff procured counsel for put to could not him an election thereon the hear- study the before recess matter the venue Texarkana Water Thereafter, plaintiff’s coun- ing resumed. Inc., Supply Corp. Farley, v. L. E. 353 S. stating: proof his claim began the sel Houston, 885, W.2d 889 1962, no writ); Mercer, 414 S. Monroe offering begin by would like to “We Houston, 756, W.2d 760 first an- stipulation into evidence 1967, dism.). error Wright earlier nounced Mr. type Reporter will morning, if remedy The selection of one this, No. 1.” Plaintiff’s this will be where two are available is waiver of of- stipulation previously Whereupon, Brownlee, other. Thrower v. accepted and re- by defendants was fered 184, 186 (Tex.Comm.App., 1929); Bridwell in evidence. ceived Bernard, 981, (Tex.Civ. Worth, App., Fort error o. ref. w. stipula tendered accepting the m.); Employers Corp. Reinsurance. evidence, plain by introducing it into tion Wagner, 250 S.W.2d (Tex.Civ. he had judicial admission tiff made a Galveston, e.). App., ref. error n. r. wrongful foreclo cause of action Plaintiff, remedies, having two inconsistent en sure at the time only one granted, of which made could pleas of overruling the try of the order and, election; his having made the elec hold succinct privilege. Walker’s Justice tion, thereby. he is bound Saner-White- Construction v. Manhattan ing Gevinson Ry. man Lumber Co. v. Texas & N. O. Okl., (Tex. Co. 449 S.W.2d Co., (Tex.Comm.App., S.W. 1969), dispositive: is holding approved). formal judicial “A admission is a true Plaintiff, Stockyards usually citing found Nat.
waiver of
stipulation
Maples,
or in a
Bank
pleadings
* *
*
rule,
(1936), recognizes
indeed
parties.
vital feature
must,
seeking
he
that in
is its conclusiveness
judicial admission
only re-
It
under
party making it.
subdivision
he must
on the
tain
hearing:
at least one defendant
venue under
(1)
subdivision Art.
suit;
par-
plaintiff
(2)
resides in
the existence of a
asserting
is at least
cause of action at the time of the
ty
proper party
Although
res-
to the claim
defendant?
defendant;
opinion
we are
(3)
ident
has
that the modern au-
require
a bona
the res-
thorities
an affirmative answer
fide cause
posed,
ident
we turn first
a con-
defendant.2
sideration of the authorities which
contends that
dis
requires negative
claims
answer.
charged
proving
a cause of
burden
Plaintiff relies
a series of cases of
offer
precedential
doubtful
value
we de
ing proof that such
“ex
a cause of action
cline to
Primary
follow in this
reli
case.
Appel-
isted as a matter of law at the time
*4
placed upon
ance is
Logan Ludwick,
v.
lee
Third
filed his
Amended Petition.”
Worth,
(Tex.Civ.App.,
S.W. 548
Fort
Recognizing that he had no cause of action
1926, writ).
cursory
no
Even a
examina
wrongful
accepted
he
foreclosure after
opinion
tion of this
reveals
the deci
stipulation
the
setting aside the foreclo
upon
sion turned
the applicability
subdi
of
sure, plaintiff argues: “The cause of ac
vision
not
has
subdivision 4.3 It
against
required
tion
a resident defendant
authoritatively
since been
determined that
by
only
Subdivision 4 need exist
plaintiff
pleads
who
a lien and
the
shows
time the plaintiff files his suit.”
property
location of
county
the
of
by
suit need not establish
extrinsic evi
In order to meet the
so ad-
contention
dence that he has a lien enforceable
vanced,
we will
the
in-
concede that
against
See, Morgan
the defendant.
hearing
troduced at the
was sufficient to
Murray,
Farms v.
233 S.W.
establish
of
existence
a cause of action for
2d 123 (1950), approving
holdings
the
wrongful foreclosure at the time of the fil-
nom.,
the underlying
reported
case
sub
ing
pleading. But,
plaintiff
when
Brown,
Morgan Farms v.
if plaintiff failed in county his residence is to be sued the of de- against the resident a of cause lege from McDonald, 4.02, p. in different supra, sued § See pending sustained, jurisdiction in that which the suit is between distinction a definitive approach near of the close of the used and the in it was which in context venue the Legislature emer session of the creates an Allison, supra. gency . . . .” legislature changed when rule was pre- Acts, indulge procedure do an unreasonable 30th 7.We not adopted our modern Judge sumption Smed- when attribute Gammel’s Leg., CXXXIII Ch. portion ley knowledge quote “has” is the word We of Texas Laws “Whereas, person present of the word third indicative emergency thereof: clause present “have”; and he used the now that when this State of the laws fact the provide tense, past changing or intend the tense did not means privi plea “had”. abatement of case where must be defendant resident a doubtful because of not to be denied reference hearing without made exception. The construction of a of the cause of the existence the time of clearly exception must application of the Bank National Stockyards Co., action. The Superior appear. Oil Goodrich v. upon in the case relied primary is the Case (1951). Tex. word is not one There Plaintiff, dissent. burden of laboring under the issue is decisive indicate it case to hearing the existence proving at the venue the cause before us. Whether against the resident of cause privilege plea at the time defendant, isted may deny the defendants not hearing, time of filed and not at the by showing the exis- right their valuable any of the case, inor simply is in that at the time of tence of a cause of action dissent. other cases cited none at the filing pleading but time of the there apparently here that It is conceded the existence of being There passing are no recent de- against the resident a cause of action I have however, of the cases point; all court hearing, fendant at the trial filing read that it is the time hold overruling erred in time rather than privilege, judgment of of the defendants. The con- is re- court is reversed and trial Ludwick, Logan trols. instructions to transfer manded with Worth, 1926,no writ), (Tex.Civ.App., Fort cause, appellants all of the entire as to any in- disclaimed the resident defendant herein, the District Courts of to one of being sued personal property terest in the County. Harris At the ven- to be dismissed. asked dis- sustained ue the trial court instruc- Reversed and remanded with privi- pleas of claimer and overruled tions. defendants. lege non-resident two that venue appeal contended it was On *6 STEPHENSON, (dissenting). under subdivision Justice not be maintained could 4, against the because All respectfully of the dissent. I longer no ex- (Brock) resident defendant read, sup- do not this state that I have Appeals af- isted. The Court of majority port the conclusion reached firmed this statement: with opinion. Brock, plaintiff’s “If at the institution as opinion, In that the issue is drawn proper suit, necessary even a follows: was, it would be as think he party, under subdi- “In order to maintain venue dis- permitted to that he was immaterial 4, 1995, vision Art. the date of discharged upon claim the existence of a cause of action his in- the trial of the time was, having at it right, terest or such as defendant ?” court, ended, time for the originally acquired jurisdiction under apparent susceptible 1830, re- ception 4 would of article entirely meanings. different Does two jurisdiction throughout, tain that proof it mean of a cause of allegations absence of a that the made at the must be jurisdic- plaintiff’s showing petition Or, privilege? does it mean that made, fraudulently tion had been cause of the time of action must exist at plea. there was no Brooks v. such hearing? such Chatham, 31; Na- 57 Tex. Ablowich v. Bank, All dissent sim- of the cases cited tional 95 Tex. S.W. Bank, 881; Grayson ply Ry. Co. Natl. hold that of a cause of Co. v. 431; Ogburn-Dal 100 Tex. 93 S.W. Taylor,
chau Lumber Co. v. 59 Tex.Civ.
App. 48.” S.W. 126 S.W.
550) cases,
Other under subdivision Allison,
follows: Harris v. Antonio,
(Tex.Civ.App., San Davidson,
writ); and Lewis v.
(1879). are: subdivisions other
Cases under of Hus- Land Bank v. Federal
Boettcher
ton, Gal-
veston, 1940, dism’d)(subdivision writ Ogburn-Dalchau Lumber Co.
29a); Tex.Civ.App.
Taylor, 59 S.W. writ) Texarkana, 1910, no Wheelock, 331 Beer v.
(subdivision 12); Waco, (subdivision See also Slaton
writ)
Anthony,
Amarillo, 1911, writ).
Harris, Cook, Barker, Browning & Cor- Christi, pus appellant. CONSTRUC- W. RICHARDSON LOYD COMPANY, Appellant, Lattimore, Gen., Atty. R. L. Aus- Asst. TION tin, appellee. Comptroller CALVERT, Public S. Robert State of STEPHENSON, Justice. Accounts *7 Appellee. by Loyd This suit Rich- brought was D. No. 7582. Company (herein- ardson Construction Company) against after called Robert S. Texas, Appeals Calvert, Comptroller of Public Accounts Beaumont. for a refund of State of 2,May paid Trial was monies in state sales taxes. May Rehearing Denied ren- judgment before court nothing. take dered question court sole before the trial is and here lease transaction whether provisions exempt under the Taxation-General, V. Article 20.04(V), A.T.S., which reads as follows:
“Transfers Without Substantial Ownership. are ex- Change There