Caughan v. Urquhart

• Decision Date: 16 October 1924
• Docket Number: (No. 2940.)
• Citation: 265 S.W. 1097
• Parties: CAUGHAN et al. v. URQUHART et al.
• Court: Texas Court of Appeals

265 S.W. 1097

CAUGHAN et al. v. URQUHART et al.

(No. 2940.)

Court of Civil Appeals of Texas. Texarkana.

October 16, 1924.

Dissenting Opinion, October 23, 1924.

Appeal from Hunt County Court; Olin P. McWhirter, Judge.

Action by Joe Urquhart and another against T. G. Caughan and others. Judgment for plaintiffs, judgment for defendant Caughan against other defendants, and all other defendants appeal. Reversed and remanded.

Appellees Urquhart and Arnold, acting by appellee Caughan, their agent, bet appellant Aycock $275 that Mayfield, a candidate for United States Senator, would receive 50,001 votes more than his opponent, Ferguson, received in the primary election held in August, 1922. Mayfield's majority, it seems, was less than 50,001 according to official returns made, but was greater than 50,001 according to those returns and unofficial returns from counties in which the election officers failed to make returns. Aycock claimed that the official returns controlled, and he had won the bet. Urquhart and Arnold claimed to the contrary, and that they had won the bet. Ignoring the demand of Urquhart and Arnold that he turn over the stakes to them, the stakeholder, appellant Hale, turned them over to Aycock. Thereupon Urquhart and Arnold commenced this suit in the county court of Hunt county. It was against Caughan, Hale, and Aycock as defendants. In their petition, Urquhart and Arnold alleged that they and Caughan resided in said Hunt county, and that Hale and Aycock resided in Collin county; and alleged, as their cause of action, that on August 15, 1922, they placed —

"with the defendant T. G. Caughan the sum of $275, to be returned to them in about 30 days; that said defendant delivered said sum of money, or a part thereof, to the defendant Earnest Hale, and that the defendants Caughan and Hale are refusing to redeliver said money or to account for the sum to the plaintiffs, for the reason that the defendant Prentiss Aycock is claiming some interest therein, or right thereto; that, as a matter of fact, said claim is without any merit whatever; that by reason of the facts alleged the defendants Caughan and Hale have agreed and promised to redeliver and to repay, both expressly and impliedly, said sum of money to the plaintiffs; that the time for the repayment has long since expired, and that, though often requested, the defendants have failed and refused, and still, refuse, to repay or redeliver said sum of money or any part thereof, to plaintiff's damage $300."

The prayer was for judgment against Hale and Caughan for $275, interest and costs. There was no prayer in the petition for relief of any kind as against Aycock. Hale and Aycock, at the proper time, filed a plea conforming to the requirements of article 1903, Vernon's Statutes, as amended in 1917, in which they asserted a right to be sued in Collin county. Urquhart and Arnold controverted that plea by a plea in which they alleged, as reasons why they were entitled to maintain the suit in Hunt count, that:

"One of the defendants resides in Hunt county, and for the further reason that said defendant residing in Hunt county is a proper party to the suit."

It appeared from testimony heard at the trial that Caughan arranged the bet with Aycock in compliance with a request of Urquhart and Arnold, when they turned over the $275 to him, that he bet same for them with some one. It further appeared that Hale, chosen by Caughan and Aycock as stakeholder, was trustworthy, and that, in agreeing he should act in that capacity, Caughan did not fail to discharge any duty he owed Urquhart and Arnold. And it further appeared that Caughan had no interest whatever in the bet, and acted in the matter merely for the accommodation of Urquhart and Arnold.

The court overruled Hale and Aycock's plea of privilege, and rendered judgment in Urquhart and Arnold's favor against them and against Caughan for $275 and interest thereon, and in Caughan's favor over against them (Hale and Aycock) for any part he might pay of the amount adjudged against him. The appeal is by Hale and Aycock alone.

H. L. Carpenter and T. W. Thompson, both of Greenville, for appellants.

Clark & Sweeton, of Greenville, for appellees.

WILLSON, C. J. (after stating the facts as above).

We think the contention of Hale and Aycock, that the trial court erred when he overruled their "plea of privilege" and refused to transfer the case to Collin county for trial, should be sustained.

The statute provides that, except in cases it specifies, "no person who is an inhabitant of this state shall be sued out of the county in which he has his domicile." Article 1830, Vernon's Statutes. One of the excepted cases is "where there are two or more defendants residing in different counties, in which case," it is declared, "the suit may be brought in any county where any one of the defendants resides." Subdivision 4 of said article. Evidently the trial court regarded this case as within the excepted class, because Caughan, one of the defendants, resided in Hunt county. But it is held that the defendant residing in the county where the suit is brought must be "a real defendant, and one against whom the plaintiff has a cause of action." Gambrell v. Tatum (Tex. Civ. App.) 228 S. W. 287; Bingham v. Emanuel (Tex. Civ. App.) 288 S. W. 1015; Shaw v. Stinson (Tex. Civ. App.) 211 S. W. 505. It may be conceded that it appeared from the allegations in Urquhart and Arnold's petition, set out in the statement above, that Caughan was such a defendant, but the contrary plainly appeared from the testimony at the trial, and, the plea of privilege being in conformity to the requirements of the statute, it devolved on Urquhart and Arnold to prove, as well as to allege, facts showing Caughan to be such a defendant. Ray v. Kimball (Tex. Civ. App.) 207 S. W. 351; Murphy v. Dabney (Tex. Civ. App.) 208 S. W. 981; Supply Co. v. Oil Co. (Tex. Civ. App.) 219 S. W. 838; Bledsoe v. Barber (Tex. Civ. App.) 220 S. W. 369; Eyres v. Bank (Tex. Civ. App.) 223 S. W. 268; Hutchison v. Hamilton (Tex. Civ. App.) 223 S. W. 864; Bank v. Sanford (Tex. Civ. App.) 228 S. W. 650; Sargent v. Wright (Tex. Civ. App.) 230 S. W. 781. The proof was that all Caughan did in connection with the bet was for the accommodation of Urquhart and Arnold, and that in doing what he did do he...