Moreland v. Hawley Independent School District, 2453-8074.

• Decision Date: 17 February 1943
• Docket Number: No. 2453-8074.,2453-8074.
• Citation: 168 S.W.2d 660
• Parties: MORELAND v. HAWLEY INDEPENDENT SCHOOL DISTRICT.
• Court: Texas Supreme Court

168 S.W.2d 660

MORELAND v. HAWLEY INDEPENDENT SCHOOL DISTRICT.

No. 2453-8074.

Commission of Appeals of Texas, Section A.

February 17, 1943.

Certified Questions from Court of Civil Appeals of Eleventh Supreme Judicial District.

Original proceeding by H. J. Moreland for a writ of mandamus to compel the Court of Civil Appeals to certify a question as to venue of an action by the Hawley Independent School District against relator and others.

Order granting the writ, unless the Court of Civil Appeals conforms its decision to that of the Supreme Court, and the Court of Civil Appeals certifies such question and other questions to the Supreme Court.

Questions answered.

McMahon, Springer & Smart, of Abilene, for appellant.

Wiley L. Caffey, of Abilene, for appellee.

BREWSTER, Judge.

This case has been here before. On petition for a writ of mandamus filed by Moreland, it was submitted to the members of the Court and both sections of the Commission, sitting as a nine-judge court, and an opinion was handed down on December 16, 1942. Moreland v. Leslie, Chief Justice, et al., Tex.Sup., 166 S.W.2d 902. A sufficient statement of the facts appears there. The question which was ordered certified is there stated and answered.

The order was that the writ of mandamus issue unless the Court of Civil Appeals should conform its decision to ours. That court chose to certify the question already answered, as above related, as well as the following questions:

"Question No. 1: Has this court, whose term expired about October 3, 1942, prior to the action of the Supreme Court in awarding the writ of mandamus, such control over said judgment as empowers us to change it if necessary to comply with the opinion of the Supreme Court upon receipt of the answers to the questions herein certified?

"Question No. 2: In a suit against at least two defendants to recover of them, jointly, damages for a tort; neither defendant being a resident of the county in which the suit is brought; if the venue, as to one of the defendants, is authorized under exception 9 to the general rule of venue (R.S.1925, Art. 1995) because such defendant committed a trespass in such county, upon which the suit is based, is the other defendant, who by the suit is sought to be adjudged liable, only in accordance with the doctrine, principle or maxim of respondent superior, a necessary party to the suit within the provisions of exception 29a to said general rule of venue?

"Question No. 3: In a suit the venue of which is proper as to one or more defendants under some exception to the general provisions of R.S.1925, Art. 1995; and another defendant, a non-resident of the county, asserting a plea of privilege is sought to be held under exception 29a on the ground that he is a necessary party to the suit, do the allegations of plaintiff's petition determine whether or not he is a necessary party?

"Question No. 4: In a suit brought against an alleged master and servant seeking to establish a joint liability of both and where the venue of such suit is sought to be sustained under exception 9 to the general rule, in that the suit is one based upon a trespass committed in the county where the suit is brought, is the plaintiff's petition...