228 S.W. 595 | Tex. App. | 1921
Lead Opinion
Subdivision 4 of article 1830, R.S., provides that, when there are several defendants residing in different counties, suit may be filed in any county where one of them resides. Cobb v. Barber,
A further question, though, is as to the disposition or order to be made of such plea of privilege, in view of the statutes and the pleadings in this particular case. The answer of the insurance company to the plaintiff's original petition and this cross-bill against Martin and Bonner on their obligation of the indemnity bond and the prayer for relief was all a part of one paper, and not detachable. Also the cross-bill sought a recovery against Martin and Bonner on their bond conditioned upon a recovery of the plaintiff against the insurance company. The trial court determined, and properly so, that the cross-bill was based upon an independent and separate contract from that declared on in the plaintiff's petition, and was in effect a suit between the insurance company and Martin and Bonner only. Apparently upon the ground that the cross-action was an independent controversy severable from the suit and controversy between the plaintiff Littlejohn and the insurance company, the court transferred "this suit in so far as it applied to F. L. Martin and W. H. Bonner." The plea of privilege of both Martin and Bonner asked the court "not to have or take further action or cognizance of this suit as to him as set out in said answer and cross-bill than to have the same transferred to the county having jurisdiction of the person of this defendant." Some cases seem to direct an order of dismissal of the parties to the cross-action instead of transferring the cross-action. But it is thought that such order has peculiar application to those cases and are not intended to lay down a rule decisive of the point here considered. The following cases go to support the trial court's order as made: McClure v. Pair,
The statute expressly provides that, if the plea of privilege be sustained, the cause shall not be dismissed, but transferred to the court having jurisdiction of the person of the defendant therein. Article 1832, R.S. Article 1833, R.S., makes it the duty of the clerk of the court to make up a certified transcript of all the orders made in the cause and "transmit the same, with the original papers in the cause, to the clerk of the court to which the venue has been changed." The first article supra is remedial legislation, and is intentionally made restrictive of the power of the court as to disposition to be legally made of the plea of privilege if sustained in providing that "the cause shall not be dismissed." The court is required under the article only to determine whether or not the plea shall be sustained. The granting of a plea of privilege results in itself in having the legal effect under this article of transferring the cause. Hickman v. Swain,
The judgment is affirmed.
Dissenting Opinion
This suit was filed by Littlejohn, as plaintiff, against the insurance company in Harrison county. The petition alleged that the plaintiff resides in Harrison county; that the defendant is a foreign corporation having a local agent upon whom service could be had in Harrison county. We construe the petition as a suit upon a contract entered into between the plaintiff and the defendant, alleging a breach of that contract by the insurance company alone. The amount sued for is claimed as the damages sustained by the plaintiff as the result of that breach. After denying the material facts alleged in the plaintiff's original petition, the insurance company upon other averments sought to have Martin and Bonner, parties to an indemnity bond, made parties defendant in this suit. The prayer for relief was that, if the plaintiff recovered a judgment against it, the insurance company, that e the latter have corresponding judgment over against the defendants Martin and Bonner. This answer was filed apparently before the a case was called for trial. The plaintiff interposed no objections to that effort to bring into the case the new parties mentioned. Martin and Bonner after being cited each appeared and filed a separate plea of privilege. Martin alleged that he resided in Jefferson county, and Bonner alleged that he resided in Angelina county. Each claimed the right to be sued in the cross-action of the insurance company in the county in which one of them resided. Each plea was in due form and verified as required by statute. The plaintiff made no reply to those pleas. The insurance company filed a controverting affidavit which alleged that Martin and Bonner were necessary parties to that controversy. As evidence of that fact the pleadings of the plaintiff and the defendant insurance company were referred to. That Martin and Bonner did not reside in the county of Harrison was not disputed. The controverting affidavit repeats, in substance, the facts stated in the cross-bill. It was agreed by the parties interested that the issues raised upon the pleas of privilege and the facts stated in them and the controverting affidavits were true. Upon that agreement as to the facts the court below entered a judgment sustaining the pleas of privilege of Martin and Bonner, and ordered the suit as to them to be transferred to Angelina county. It was further ordered that "the clerk of the court immediately make out a correct transcript of all the orders in that cause, certify thereto officially, and transmit them with all the original papers which relate to the defendants Martin and Bonner to the clerk of the district court of Angelina county."
Under the provision of article 1848 of the Revised Civil Statutes either the plaintiff or the defendant may bring in new parties to the suit at any time before the case is called for trial, upon such terms as the court may direct. Conceding that Martin and Bonner were necessary parties to this suit, they could not be brought into it over their objection. St. L. S.W. Ry. Co. v. McKnight,
It also appears from an inspection of the pleadings filed in this case that Martin and Bonner are not even proper parties to this suit. They are in no way involved in the controversy between the plaintiff and the insurance company. The most that can be said is that the insurance company is claiming a reimbursement from them in the event it is held liable to the plaintiff for the breach of the contract alleged. That is not sufficient. U.S. F. G. Co. v. Fossati,
My conclusion is this: The "cause" is one and inseparable; the court has no authority to divide it and make two "causes." Martin and Bonner cannot over their objection be held in Harrison county. Their right to be eliminated from the suit in that county cannot be prejudiced or defeated by either the plaintiff or the defendant.
I conclude that this judgment should be reversed, and the cause remanded, with directions to either dismiss Martin and Bonner from the suit, or transfer the entire case to another county. If this is not done, it will be interesting to know how the clerk of the trial court can comply with the order that has been there made. *599