Calder v. Cass, 15393

• Decision Date: 31 January 1958
• Docket Number: No. 15393,15393
• Parties: Bruce CALDER, Appellant, v. Frank W. CASS, Appellee.
• Court: Texas Court of Appeals

Page 649

310 S.W.2d 649

Bruce CALDER, Appellant, v. Frank W. CASS, Appellee.

No. 15393.

Court of Civil Appeals of Texas, Dallas.

Jan. 31, 1958.

Rehearing Denied March 7, 1958.

Golden, Croley, Howell, Johnson & Mizell and Robert E. Price, Dallas, for appellant.

Witts, Geary, Hamilton & Brice and William C. Koons, Dallas, for appellee.

DIXON, Chief Justice.

Frank W. Cass, appellee, filed an application to perpetuate testimony under Rule 187, Texas Rules of Civil Procedure, naming ten persons as parties adversely interested in the suit he anticipates instituting. He obtained service on all but one of the named persons.

Bruce Calder, appellant, one of the persons on whom service was obtained, filed suit asking for an injunction to restrain appellee from taking the depositions of the witnesses named in the petition. The trial court issued a restraining order, but after a hearing, dissolved the restraining order and refused to grant appellant a temporary injunction.

In his brief appellant attacks the court's refusal on two grounds. He says that (1) appellee's petition to perpetuate testimony is insufficient to satisfy the requirements of Rule 187, T.R.C.P.; and (2) the record discloses that appellee's petition was not made in good faith. At the injunction hearing no evidence was introduced. We must look to the pleadings alone in passing on the points raised by appellant.

We agree with appellee that the petition in substance alleges these to be the facts in regard to his contemplated suit: (1) The parties entered into a joint venture. (2) The venture was entered into in the summer of 1956. (3) The venture was for the purpose of exploring for oil and natural gas. (4) Each person involved was to make certain contributions to the venture. (5) The parties agreed on the interest and profits that each would hold. (6) The compensation for services rendered by each was agreed upon. (7) The amount of money that the adversely interested parties have failed and refused to pay is in excess of $100,000. (8) The adversely interested parties have refused to pay to appellee the money and things of value to which he is entitled by virtue of his contribution. (9) One Earl Smith was not originally a joint venturer. (10) On information and belief, petitioner alleges that his interest in the venture was or may be transferred to Earl Smith in violation of the rights of petitioner.

We believe appellee's petition meets the requirements of Rule 187, T.R.C.P. It names the parties, and states their residence to be in Dallas County, Texas. So far as the record shows, such allegations are sufficient to establish that Dallas County is the proper county 'where such suit could be instituted * * *.'

Moreover the petition informs appellant of the general nature of the suit which appellee anticipates filing. True, it does not measure up to the requirements of pleading which appellee may have to meet in the face of exceptions, after he files his original petition in his contemplated suit. But that is not the test under Rule 187, T.R.C.P. Our Supreme Court has said: 'Rule 187 contemplates that the statement will include such information regarding the nature of the anticipated suit as will fairly enable the adverse party to crossexamine the witness. It does not require or contemplate that the statement will show the testimony which the moving party expects to elicit from the witness. The allegations of the statement in the present case as to the nature of the anticipated suit are...