Brundige v. Rutherford

• Decision Date: 10 April 1882
• Docket Number: Case No. 3154.
• Parties: B. A. BRUNDIGE ET ALS. v. R. A. RUTHERFORD.
• Court: Texas Supreme Court

57 Tex. 22

B. A. BRUNDIGE ET ALS.

v.R. A. RUTHERFORD.

Case No. 3154.

Supreme Court of Texas.

Apr. 10, 1882.

APPEAL from Bastrop. Tried below before the Hon. J. P. Richardson.

This suit was brought March 3, 1874, in the district court of Bastrop county, by B. A. Brundige and his wife, L. A. Brundige, John N. Cartwright, Charles W. Cartwright, William Cartwright, David Cartwright, Ellen Cartwright, and John and Isabell Smithwick, minors without guardian, by their next friend, B. A. Brundige, alleging that they were the children and heirs at law of C. W. Cartwright, deceased, late of said Bastrop county; that said C. W. Cartwright, their ancestor, was a devisee under the will of Edward Daniels, of a league and labor of land which had been granted by the republic of Texas to the father of said testator. The petition made as parties defendant, W. D. Daniels and Virginia Daniels, who were alleged to reside in Williamson county, state of Texas; John Gray and wife, Ida Gray, of the county of Bastrop; and R. A. Rutherford, of the county of Travis, in said state; alleging that W. D. Daniels, Virginia Daniels, and John Gray and wife, Ida, claimed an interest in the lands mentioned in the will by virtue of heirship; and that R. A. Rutherford also claimed by purchase from certain of the heirs of the original grantee, to wit, the father of Edward Daniels, the testator.

The original petition alleged that Edward Daniels, the testator, died in Williamson county, Tennessee, in the year 1854, leaving a will, which was duly probated in that county and state; a duly authenticated copy of the same, with the probate thereof, was attached as an exhibit to, and was made a part of the petition, from which it appeared that the will was thus probated in the same year. The devises under which the plaintiffs claimed were in substance the following, viz.: To John N. Cartwright, son of C. W. Cartwright, the testator's interest in a six hundred and forty acre tract of land granted to testator's father (whose name was the same as that of the testator) by the republic of Texas; and to Charles W. Cartwright the testator's interest to one league and labor of land, granted by said republic to his father. The petition alleged that the testator's interest in these lands was one-sixth. Neither the petition nor the copy of the will identified the locality of the lands, nor in anywise described them more definitely than as has been already stated.

Upon these premises the plaintiffs prayed that the defendants be cited “to show cause, if any they have, why the last will and testament of the said Edward Daniels, deceased, should not be duly established, for costs, and for general and special relief.”

The defendant Rutherford filed a plea to the jurisdiction of the court over him, because it is shown that he is a citizen of Travis county, and it is not alleged that any of said lands are situate in Bastrop county; and because that, if any cause of action has ever accrued in favor of the plaintiffs against him, the same accrued in Travis county, where defendant resides.

Upon the hearing of the cause the court sustained the plea, and adjudged “that the plaintiffs take nothing by this suit as to the said R. A. Rutherford, but that said R. A. Rutherford do have and recover, of and from the plaintiffs, all costs in this behalf expended, for which execution may issue.” The order also recited that the cause be dismissed as to Rutherford, but it does not appear that any further action was taken by the court as to the cause in reference to the interests of the other parties to the suit, nor that the merits of the case were disposed of definitively.

Of the same date of the above recited judgment, viz., the 31st day of July, 1875, was filed an amendment to the petition, to the effect that administration is then still pending in Bastrop county on the estate of Edward Daniels, who died in said county possessed of property, real and personal, and that C. W. Cartwright departed this life in the year 1856 in said county of Bastrop, and that all of the testator's relatives resided in Bastrop county. The Edward Daniels here referred to must refer to the ancestor of the testator. There does not appear to be in the record any order granting leave to amend to plaintiffs, nor can it be seen from the record whether this amended petition was filed before the ruling was made by the court, or that it was the subject of the court's attention or action.

The plaintiffs excepted to the judgment rendered by the court on the plea to the jurisdiction, and on their appeal assign as error the judgment sustaining said plea and dismissing this suit as to the defendant R. A. Rutherford.

Jones, Sayers & Russell, for appellants.

I. The only point to be considered by this court is the judgment of the district court sustaining the plea of jurisdiction and dismissing the suit as to the defendant R. A. Rutherford. Unquestionably the court erred in rendering such a judgment. We would respectfully call the attention of this court to the fact that the petition alleges that two of the defendants reside in Bastrop county, two in Williamson county, and one (R. A. Rutherford) in Travis county. It is provided by statute that, in cases where there may be two or more defendants residing in different counties, the plaintiff may institute suit in any county where any of such defendants may reside. Pasch. Dig., art. 1423. We can see no reason why the statute referred to should not apply to and control the case at bar, as well as all others. Indeed, we think there can be none.

II. The amended petition further shows that Edward Daniels (the father of Edward, the testator, whose will is sought to be established) died in Bastrop county, and that administration was commenced and is still pending in Bastrop county upon his estate; and further, that C. W. Cartwright, the devisee, died in Bastrop county. We ask that the judgment of the district court be reversed and the cause remanded.

Chandler & Morris, for appellee.

WALKER, P. J. COM. APP.

This proceeding seems to have been intended by the plaintiffs to serve the single purpose of establishing as valid and genuine the will of Edward Daniels, in order that it should thereby, when thus established, constitute their initial link of title, and an essential muniment thereof, to the land referred to in the petition. There does not appear in the plaintiffs' petition any allegation of fact, or prayer for relief, indicating that the plaintiffs sought to either procure an administration on the estate of said Edward Daniels, or to recover possession in this suit of the land in question, or to try the title thereto....