Wilson v. Gass, No. 9059.

No. 9059. | Tex. App. | Mar 8, 1924

This suit was instituted in the district court in Dallas county, Tex., by appellee H. C. Gass against Campbell Wood and G. A. Devein, and appellant, L. F. Wilson. It was alleged in the petition that appellee resided in Dallas county, Tex.; that Wood and Devein each resided in Dallas county, Tex.; and that appellant resided in Kansas City, Mo. It was further alleged that appellee had purchased from the parties made defendants in the lower court an oil and gas lease on 120 acres of land in Archer county, Tex., for which he had paid the sum of $4,800; that appellee was not present at the consummation of the transaction, but had been notified by the parties from whom the lease was purchased that the lease was prepared and executed in due form. Appellee also discovered that by mutual mistake of all the parties the name of A. G. Wood was written in said lease instead of the name of appellee, which was the agreement and intention of all the parties. The suit was for a reforming of the lease or, in the alternative, a decree for the cancellation of the lease to A. G. Wood and the issuance of a lease on the land to appellee.

Appellant, Wilson, seasonably filed his plea of privilege, alleging his residence in Wichita county and his right to be sued in said county. Omitting the formal part and the verification of the plea, which was in proper form, this plea of privilege is as follows:

"This defendant, L. F. Wilson was not at the time of the institution of this suit, nor at the time of a service of process therein, nor at the time of filing this plea, a resident of Dallas county, Tex., in which this suit was instituted, and he was at the time of the institution of this suit, and at the time of the filing of this suit, and is now, a resident of Wichita county, Tex., and none of the exceptions to the exclusive venue in the county of one's residence mentioned in article 1830 or article 2308, of the Revised Statutes exist in this cause, and all these things the said defendant, L. F. Wilson, is ready to verify."

Appellee duly filed his controverting affidavit, which is as follows:

"Now comes the plaintiff, H. C. Gass, and controverts the plea of privilege heretofore filed herein by L. F. Wilson, and plaintiff shows to the court that it is not true that the said L. F. Wilson was residing in Wichita county, state of Texas, or at any other point in the state of Texas at the time of the filing of plaintiff's suit herein, nor at the time of the filing of said plea of privilege, but in truth and in fact the said L. F. Wilson was at all of said times and now is residing in Kansas City, in the state of Missouri, and the other defendants then resided in Dallas county, Tex."

After a hearing on the merits of this plea, the court entered an order overruling same, to which appellant excepted and has duly perfected his appeal and presented the question to this court for review.

There are a great many assignments of error, but, in our view of the case, there is only one question to be determined, and that is whether or not venue was properly laid in Dallas county, Tex., by reason of the residence of the other two defendants being in said county when the suit was filed. As will be noted, both the plea of privilege and the controverting affidavit are formal and as general as such pleas can be prepared. Appellant is specific in the denial that he is a resident of Dallas county, Tex., and as to his allegation that he is a resident of Wichita county, Tex.; but in reference to all other exceptions to article 1830 of the Revised Statutes the allegation is in general terms.

The controverting affidavit is likewise as formal and in as general terms as could well be framed, though specifically denying the allegation of the plea of privilege as to appellant's being a resident of Wichita county, Tex., and in reasserting that he is a resident of Kansas City, Mo. There is in this plea an allegation that the other defendants at the time of the filing of the suit resided in Dallas county, Tex.

The allegations in the petition place venue in Dallas county on two valid grounds: The first, that appellant is a nonresident of the state, and therefore can be sued in Dallas county, the county of appellee's residence. Second, that a joint cause of action exists in his favor against appellant and his codefendants, and all parties can be sued in Dallas county where appellant's codefendants reside. The attention of the court was specifically directed by the plea of privilege only to the first of these two grounds of venue.

Subdivision 4 of article 1830 of the Revised Statutes of Texas, in so far as it applies to this case, is as follows:

"Where there are two or more defendants residing in different counties, in which case the suit may be brought in any county where any one of the defendants resides. * * *"

The courts have held, where this exception is relied upon for the asserted right to sue a defendant outside of the county in which he resides, that the cause of action alleged against the defendant not residing in the county in which the suit is instituted must be a joint cause of action against the defendant, or defendants, who do reside in the county in which such suit is instituted.

The petition shows a joint cause of action against the appellant and his two codefendants. The proof heard in the court below upon the trial of this plea was sufficient to show a joint cause of action. Appellant contends, however, that because the controverting affidavit did not make the petition a part of such plea, and because it was not alleged in the controverting affidavit that a joint cause of action did exist against appellant and either or both of his codefendants, such issue was not before the trial court for determination and is not before this court. We cannot agree to this contention. The statute above quoted says, in effect, that where there are two or more defendants residing in different counties, it is proper to lay the venue of the case in the county in which any of the defendants reside.

As against a special exception a plea merely in the language of the statute might not be good, but, in the absence of such special exception, we think the plea of appellee in his controverting affidavit alleging that two of the defendants resided in Dallas county is sufficient and will warrant the reception of all evidence by a trial court necessary to establish venue under this exception. One of these necessary elements was to show that the cause of action alleged against the defendants residing in Dallas county and against appellant as their codefendant was a joint cause of action.

As the evidence is undisputed that appellant's codefendants resided in Dallas county at the time the suit was instituted, and as the evidence is sufficient to show that there was a joint cause of action alleged against appellant and his codefendants, there was no error committed by the trial court in overruling the plea of privilege.

It therefore follows that all those assignments of error in reference to the admission of evidence tending to show that the cause of action alleged against the three defendants was a joint cause of action are not well taken and are overrruled. The other assignments of error have been examined, with the result that we consider them either harmless or not well taken.

The case is therefore affirmed.