278 S.W.2d 318 | Tex. App. | 1955
Appellants are insistent that we write further with reference to this suit. We are admonished to heed Rule 451, Texas Rules of Civil Procedure, which enjoins upon Courts of Civil Appeals the duty to “decide all issues presented to them by proper assignments of error by either party, whether such issues be of fact or of law, and announce in writing their conclusions.” Such insistence presents the paradox between abstraction and realities in opinion 'writing. In the abstract, the clamor is for short opinions; but in the real, the specific lawyer wants his specific cáse to be burdened by an opinion which discusses each point- seriatim, carefully distinguishes each cited authority, and generally encumbers the advance sheets. While we are of the opinion that appellants, judging from their two motions for rehearing, are not left in doubt as to our conclusions of fact or law, we shall comply with their request to enlarge upon the opinion. 275 S.W.2d 956.
The Bank, as stakeholder, interpleaded all interested persons for the purpose of obtaining á declaratory judgment about the meaning of words in a will which was admitted to probate in Nueces County. The stakeholder is concerned - only with performing its duties' and does not claim to own any lands involved in the controversy. The original opinion wás written on the basis only of points which were presented, to quote again from Rule' 451, ‘‘by proper assignments.” Those points' and that brief in no way suggested that venue should be changed from- Nueces Gounty on the grounds1-that the'suit falls within Section 14 of Article 1995, which places venue for land .suits and to remove cloud irt the county of the property.-
■Rule 418 provides that appellants’ brief shall state the points upon-which the appeal is predicated. Unless that rule means what it says, each time some new -point may occur, the briefer would write about it in another brief and impose upon ‘his adversary the duty to rebrief. After appellee filed its brief, appellants filed what they denominate “Written argument — Replying to Appellee’s Brief and Additional .Point of Error.” Appellants state .their reason for making the new point is that "it clearly now appears to be an action for the recovery of lands or to quiet the title to lands in Wharton County.” In other words, after the case was tried and after appellee filed its brief, appellants started in an entirely different direction to urge a change of venue. The case was tried below and our opinion was written upon the question of whether appellants, who are residents of Brazoria County, could be sued in Nueces County when joined with persons who reside in Nueces: County. Sections 4 and 29a, Article 1-995, were and are the '-sections concerned. Appellants, by. their original
For these , reasons, we have not considered appellants’ point which so lately ;bringst-Section 14, Article 1995, into this case. Perry v. City of Gainesville, Tex.Civ.App., 267 S.W.2d 270. Whether Renwar Oil Corporation v. Lancaster, Tex., 276 S.W.2d 774, or Goodrich v. Superior Oil Co., 151 Tex. 46, 245 S.W.2d 958, 237 S.W.2d 969, should control this case is not in the. case. Those cases discuss Section 14 of. Art 1995.
'Appellants by their plea of privilege sought to ■ change venue from Nueces County to- Brazoria County, the county of their residence. They solemnly swore in their plea of privilege that no exception to that exclúsive venue in Brazoria County is present in this case. They now insist that there 'is ah exception and the case should be. tried'in. Wharton County. No suggestion" to the trial court, no pleading and no evidence, hinted that appellants wanted the .case transferred to Wharton County. Not until appellee had filed its brief in reply to appellants’ brief, did the idea to transfer the case to Wharton County and.'th'e possible application of Section 14, occur to appellants. The suggestion to move tii'e case to Wharton County, for the first time came into this case on the date the cause was submitted in this Court. Certainly, it would be a perplexed district judge who learned that we had reversed his judgment' under. Section 14, Article 1995, and had transferred the cause to Wharton County, When he had been called upon' neither to ppnsider such exception nor to transfer the cáse to that county.
Appellants are not entitled to transfer the case to Wharton County. Tunstill v. Scott, 138 Tex. 425, 160 S.W.2d 65; Phillips v. White, Tex.Civ.App., 272 S.W.2d 743. For the reasons stated in our original opinion, which discussed'the only theory upon which appellants could rely, they are .not entitled to transfer the case from Nueces County.
These are our conclusions'of-:fact''and of law with reference to' 'appellants’ point, designated as number nine' in'their-motion for rehearing.' We pretermit discussion of the other ten points. - - ' v’
The second motion for rehearing is overruled.
