Brown v. Neyland

• Decision Date: 07 June 1933
• Docket Number: No. 9083.,9083.
• Citation: 62 S.W.2d 227
• Parties: BROWN et al. v. NEYLAND.
• Court: Texas Court of Appeals

62 S.W.2d 227

BROWN et al. v. NEYLAND.

No. 9083.

Court of Civil Appeals of Texas. San Antonio.

June 7, 1933.

Rehearing Denied July 1, 1933.

Appeal from District Court, Nueces County; W. B. Hopkins, Judge.

Action by O. L. Neyland against Herman Brown and others. From an order overruling defendants' pleas of privilege, defendants appeal.

Reversed and remanded.

Tom S. Henderson, Jr., of Corpus Christi, Edgar Montieth, of Houston, and Boone & Raymer, of Corpus Christi, for appellants.

B. D. Tarlton and L. Hamilton Lowe, both of Corpus Christi, for appellee.

SMITH, Justice.

It appears from the record that Herman Brown and associates constituted a partnership engaged in constructing roads and similar projects, and that, after operating some time as a partnership, the individual partners organized and thereafter operated a corporation under which the business was continued.

The several individual defendants, who constituted the partnership, none of whom reside in Nueces county, where the suit was instituted, and the corporate defendant, having its domicile in Harris county, with an office and agency in Nueces county, filed pleas of privilege to be sued in the counties of their respective residences. All the pleas were overruled, and this appeal resulted.

Venue is sought to be maintained in Nueces county by virtue of subdivision 23 of the general venue statute (article 1995) and subdivision 29a as amended (Vernon's Ann. Civ. St. art. 1995), as follows:

"23. Corporations and associations.—Suits against a private corporation, association or joint stock company may be brought in any county in which the cause of action, or a part thereof, arose, or in which such corporation, association or company has an agency or representative, or in which its principal office is situated. * * *

"29a. (Two or more defendants.)—Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto. (Acts 1927, 40th Leg., 1st C. S., p. 197, ch. 72, § 2.)"

In his petition and in his controverting affidavits, appellee alleged that he was engaged by the individual defendants while operating the partnership business to superintend its various operations upon an agreed profit-sharing basis; that, as succinctly stated in his brief, appellee "had a contract with the individual defendants for a division of profits; that he owned a one-half interest in certain profits earned by them; that he owned a one-half interest in certain road building equipment purchased by such parties; that they owed him an accounting. He further alleged that the appellant corporation expressly assumed the contract he had with the partnership appellants; that it took over the books, records, and assets of the partnership, including the equipment in which he owned a one-half interest; that it became further indebted to him by a continuation of the business he had engaged in jointly with the partnership; that such corporation also owed him an accounting, not only for what was due him for profits earned after its incorporation, but, by virtue of its assumption of the obligation and its custody of the books and records, the only source of the accounting."

We are of the opinion that the facts so alleged were sufficient, if established by the modicum of proof required in testing pleas of privilege, to sustain venue in Nueces county.

The gist of the individual appellants' contention is that the cause of action asserted by appellee is not such a "single joint cause of action" against all the defendants as to render the individuals "necessary" parties within the contemplation of subdivision 29a; that the causes of action asserted against the individuals are separate and severable from that asserted against the corporation, whereby the case is taken out of the class contemplated in subdivision 29a; that, in order to subject the individuals to the jurisdiction of the Nueces court along with the corporate defendant, it must be made to appear by pleading and proof that the individuals are necessary parties to a "single joint cause of action" against both corporate and individual defendants. It is not deemed necessary to pass upon the proposition of appellants in the abstract, for we are of the firm conviction that the case made by the pleadings, if not the...