200 S.W.2d 843 | Tex. App. | 1947
This appeal is from an order overruling appellant Jack Pinkston’s plea of privilege. The parties will be designated as in the trial court.
On April 3, 1946, plaintiff Mrs. H. W. Wills, in her individual capacity, joined pro forma by her husband, H. W. Wills, filed suit in the District Court of Henderson County, Texas, against Jess Sweeten, sheriff of that county, vouching into the suit The Employers Liability Assurance Corporation, Ltd., surety on the sheriff’s official bond, and Jack Pinkston of Dallas County, jointly and severally, for damages growing out of a levy of execution on property alleged to have been owned by Mrs. Wills as her separate estate and sold to satisfy a judgment obtained by Transportation Insurance Agency against her husband H. W. Wills. '
In limine, and without notice to the defendant, the court overruled defendant’s motion for transfer of the cause, granted plaintiff leave to file her belated controverting affidavit and set the time for filing of such pRa for June 13, 1946. On June 10, 1946, the plaintiff in her individual capacity, joined pro forma by her husband, filed a controverting affidavit averring therein “that they have good reason to believe and they do believe, and so allege that defendant’s said plea is not correct, and that this court has venue of this cause and of the person of the defendant Jack Pink-ston on the following grounds and reasons, to-wit: * * Then they set out the grounds on which plaintiff relies for venue in Henderson County: (1) Under section 4, Article 1995, R.S., in that, plaintiff’s suit is against Jess Sweeten of Henderson County and Jack Pinkston of Dallas County and that they, as joint defendants, on March 23, 1946, took charge of and sold certain merchandise belonging to Mrs. H. W. Wills and did unlawfully convert same to their own use and benefit; and (2) under section 9 of the statute, that the defendants jointly committed a trespass in Henderson County against the property of plaintiff. Attached to the controverting plea was the following affidavit, eliminating formal facts: “Plaintiffs * * * say that the above controverting plea is true in substance and in fact.” Signed and sworn to before a notary public.
It will be observed that the plea and affidavit are based on affiants having “good reason to believe and they do believe” and so allege that defendant’s plea is not correct; and so, on such belief, affiants allege that the district court in Henderson County has venue of the suit under the related statutes. It may be altogether true that the affiants had “good reason to believe” and “do believe” and “so believing” defendant’s plea is untrue; and, yet, their promptings may have been such as not to be direct and unequivocal as to the facts sworn to. As indicated by our Supreme Court in the Belo-Blanton case, 133 Tex. 391, 129 S.W.2d 619, the affidavit purporting to controvert such plea of privilege must be direct, unmistakable and unequivocal as to the facts sworn to. The affidavit must be sufficiently definite that, if untrue, the affiants would be subject to prosecution for perjury. “The allegations of fact in the ordinary affidavit must be on the knowledge of the affiant. In other words, the af-fiant must swear to the truth of his statements and not according to his knowledge and belief.” 2 Tex.Jur. 363, sec. 23. In Graham v. McCarty, 69 Tex. 323, 7 S.W. 342, 345, an affidavit that the allegations are true “to the best of his knowledge [or information] and belief” was held fatally defective.
In’ due order the defendant challenged the sufficiency of plaintiff’s controverting plea and the evidence as raising an issue of fact to maintain venue as to him in Henderson County, and presents the necessary points for review. We think the points urged should have been sustained.
The rule seems to be well settled in this State that, in order to maintain venue of a suit against an out-of-county defendant on the gróund that a codefendant resides in the county where the suit is pending, it must be shown, at least prima facie, that the plaintiff has a cause of action against the resident defendant and that the
Furthermore, the statute, R.S. art. 1983. authorizes the husband to bring suit for the recovery of the wife’s separate property, or damages for the conversion of the wife’s property, or damages for the destruction of the wife’s property; hence plaintiff, a married woman, seeking judgment against all of the defendants for $1,267.20 with interest and costs of suit as actual damages for the value of her property sold under execution, and for loss of her income in operation of her feed store, and praying that she alone “have judgment against Jess Sweeten, Jack Pinkston and The Employers Liability Assurance Corporation, Ltd., jointly and severally, for all of her damages as alleged” she is not a sui juris. Therefore, neither of the defendants is liable in the suit of Mrs. H. W. Wills for damages, if any, arising out of conversion of her separate estate and loss or destruction of her business. “Whatever loss of credit and standing as such merchant or destruction of business that may have been sustained, the damages therefor were community property, and recoverable only by her husband, with whom she was living at the time the goods were levied on by the sheriff as his property.” Ainsa v. Moses, Tex.Civ.App., 100 S.W. 791, 792. See R.S.1925, Art. 1983.
Then, too, where there is a valid judgment and issuance of process for its enforcement, the plaintiff in execution is not liable in the manner in which the sheriff executes the process, unless such judgment plaintiff, or its managing officers direct a wrongful execution or participate therein. Longcope v. Bruce, 44 Tex. 434; Miller et al. v. Dunagan, Tex.Civ.App., 123 S.W.2d 363;. Ainsa v. Moses, supra.
It will be seen from the record here presented that plaintiff does not in pleadings or proof challenge the validity of the judgment or writ of execution under which the property was seized; there is no contention that defendant Pinkston was present when the plaintiff’s place of business, if it was her place of business, was closed and her property seized, or that Pinkston participated in or authorized the sheriff of Henderson County to levy on property now claimed to have been the separate property of the plaintiff Mrs. H. W. Wills. The only allegation connecting Pinkston with the seizure transaction is that the plaintiff “has reason to believe and does believe” that Pinkston “caused” the writ of execution to issue, without stating any particular fact on which such conclusion is based. The evidence and findings of the trial court are of similar import. The defendant Pinkston was not present and he did not participate in the levy and seizure of the involved property, other than, as manager of the judgment plaintiff Transportation Insurance Agency, he caused the judgment to be entered in favor of his principal in a justice court of Dallas County, and caused +he issuance of the execution thereon and delivered to the sheriff of Henderson County with specific instructions for the sheriff to levy on property belonging only to H. W. Wills. To that end, the defendant Pink-ston wrote to the sheriff under date of March 8, 1946, pertinent here: “On Octo
In appellant’s first three points of error, which shall be treated together, he contends in effect that the court erred in permitting plaintiff to file her belated controverting affidavit and overruling his motion to sustain his plea of privilege and transferring the cause as to him to the county of his residence, as required under Rule 86, Vernon’s Texas Rules of Civil Procedure. It is evident that this Rule, standing alone, seems to be mandatory. “If the plaintiff desires to controvert the plea of privilege, he shall within ten days after appearance day file a controverting plea under oath, setting out specifically the grounds relied upon to confer venue of such cause on the court where the cause is pending.” However, Rule 72 makes provision that “Whenever any party files * * * any pleading, plea, or motion of any character which is not by law or by these rules required to be served upon the adverse party, he shall at the same time either deliver or mail to the adverse party or his attorney of record a copy of such pleadings, plea, or motion.” And Rule 5 makes still another enlargement of Rule 86: “When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion * * *; (b) upon motion permit the act to be done after the expiration of the specified period where good cause is shown for the failure to act * * Thus it will be seen that the rules, Texas Rules of Civil Procedure, do not impost the duty upon a defendant to furnish copy of his plea of privilege to his adverse party and they do not make the provision of Rule 86, requiring plaintiff to file a controverting plea, nugatory. But the power of the court is so enlarged to permit the court in the exercise of its sound discretion in order to “obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law” (Rule 1), to permit the filing of a belated controverting plea, where the plaintiff shows that he had no notice of the filing of the plea within the designated time.
In Texas-Louisiana Power Co. v. Wells, 121 Tex. 397, 48 S.W.2d 978, it has been settled by our Supreme Court that a controverting affidavit may be filed late if plaintiff’s attorney shows good cause. In the case at bar, plaintiff and her attorney not having been furnished with a copy of defendant’s plea of privilege, or notice of the filing of defendant’s plea of privilege, since notice is thus necessarily implicit when Rule 72 is complied with, we conclude that it was not an abuse of discretion for the trial court to permit plaintiff to file her belated controverting plea. See 5 Texas Bar Journal 426 ; 8 Texas Bar Journal 24.
