Camellia Diced Cream Co. v. Chance

• Decision Date: 20 October 1960
• Docket Number: No. 13613,13613
• Citation: 339 S.W.2d 558
• Parties: CAMELLIA DICED CREAM COMPANY et al., Appellants, v. Ferman J. CHANCE, Appellee.
• Court: Texas Court of Appeals

Page 558

339 S.W.2d 558

CAMELLIA DICED CREAM COMPANY et al., Appellants, v. Ferman J. CHANCE, Appellee.

No. 13613.

Court of Civil Appeals of Texas, Houston.

Oct. 20, 1960.

Rehearing Denied Nov. 10, 1960.

Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, L. S. Carsey, Houston, for appellants.

Red, Kemp & Fahey, Pat N. Fahey, Houston, for appellee.

Chance, Butler, Binion, Rice & Cook, W. N. Blanton, Jr., Houston, for amicus curiae, estate of Mrs. Saul Hungerford.

WERLEIN, Justice.

This appeal is by Camellia Diced Cream Company and Anthony Black from the order of the District Court of Harris County transferring the whole case to the District Court of Galveston County upon sustaining the plea of privilege filed by only one of the defendants in the case, namely Lawrence M. Coughlin, as Administrator of the Estate of Lucille Hungerford, Deceased. Neither of the appellants, who are residents of Harris County, filed a plea of privilege.

The suit was originally brought by appellee, Ferman J. Chance, a resident of Galveston County, Texas, against appellants, 'and the Estate of Mrs. Saul Hunderford, Deceased, upon whom service may be had upon her legal representatives, Alta Loma, Texas, * * *' to recover damages to appellee's building in Galveston County, as a result of a collision between a car driven by Mrs. Saul Hungerford and a truck of Camellia Diced Cream Company driven by its employee, Anthony Black. In both appellee's original petition and in his first amended original petition, he pleaded various acts of negligence on the part of the decedent, Lucille Hungerford [Mrs. Saul Hungerford] and of appellant, Anthony Black, and prayed for damages against the defendants jointly and severally.

Saul Hungerford, a resident of Galveston County, was not named in either the original or amended petition. He was not sued as executor or administrator of the estate of his wife or as her surviving spouse, nor was he sued in any capacity for the recovery or protection of community property. The citation was not directed to him but to 'Estate of Mrs. Saul Hungerford, Deceased, upon whom service may be had upon her legal representatives, Alta Loma, Texas.' The sheriff's return shows that Saul Hungerford was served on March 17, 1959. It does not show that he was served in any capacity other than that of an individual.

On April 10, 1959 a plea of privilege was filed on behalf of Saul Hungerford for transfer of the cause as to him to Galveston County, stating: 'Now comes Saul Hungerford, who was served with citation herein as the alleged legal representative of the Estate of Mrs. Saul Hungerford, Deceased, Defendant, and files this his plea of privilege * * *.' Although it is alleged in such plea of privilege that Saul Hungerford was served with citation as the alleged legal representative of the estate of Mrs. Saul Hungerford, Deceased, his name appears nowhere therein. The court sustained the plea of privilege and decreed that the cause be severed as to said defendant, and as to him transferred to the District Court of Galveston County. Appellee herein appealed from such order to the Court of Civil Appeals at Houston. Thereafter, upon motion of appellee, such appeal was dismissed.

On August 22, 1959 appellee filed his first amended original petition in which he made Lawrence M. Coughlin as Administrator of the Estate of Lucille Hungerford, Deceased, under orders of the County Court of Galveston County, a party defendant. Thereafter the said Lawrence M. Coughlin as such administrator filed a plea of privilege alleging that the venue of this suit is controlled by Subdiv. 14 of Article 1995, Vernon's Ann. Civil Statutes of Texas, it being a suit to recover damages to land. At the hearing of such plea of privilege, which was not controverted, the District Court of Harris County transferred the entire cause to the District Court of Galveston County, although neither of the appellants herein had filed a plea of privilege to be sued in Galveston County.

Appellants assert that the trial court, having previously sustained the plea of privilege of Saul Hungerford as the representative of the estate of Mrs. Saul Hungerford, had no further jurisdiction as to the portion of the cause relating to the estate of Mrs. Saul Hungerford, and therefore erred in acting on the plea of privilege of the administrator of her estate. We do not agree. From what has been said hereinabove, it clearly appears that the District Court of Harris County had no jurisdiction over the estate of Lucille Hungerford, Deceased, or any representative of her estate, prior to the filing of appellee's amended petition. An estate of a deceased person is not a legal entity and cannot sue or be sued as such. Neblett v. Butler, Tex.Civ.App., 162 S.W.2d 458, writ ref., w. o. m.; Crowe v. Di Manno, 1 Cir., 1955, 225 F.2d 652; Heuschel v. Wagner, 73 Colo. 327, 215 P. 476.

No party was named in the original petition as the legal representative of the estate of Mrs. Saul Hungerford, and no properly qualified representative of her estate appeared in the suit until the duly qualified and acting administrator of her estate, Lawrence M....