Childress v. Brooks

• Decision Date: 26 June 1924
• Docket Number: (No. 8545.)
• Citation: 265 S.W. 224
• Parties: CHILDRESS et al. v. BROOKS et al.
• Court: Texas Court of Appeals

265 S.W. 224

CHILDRESS et al. v. BROOKS et al.

(No. 8545.)

Court of Civil Appeals of Texas. Galveston.

June 26, 1924.

Rehearing Denied October 9, 1924.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Suit by R. E. Brooks and others against P. L. and W. W. Childress and others. From the judgment, the two named defendants appeal. Affirmed.

Baker, Botts, Parker & Garwood, of Houston, and Blanks, Collins & Jackson, of San Angelo, for appellants.

Woods, King & John, of Houston, for appellees.

GRAVES, J.

Appellees agree that appellants make a correct statement of the nature and result of the suit as follows:

"On February 23, 1923, R. E. Brooks sued J. C. Boyd, W. R. Wells, J. M. Boyd, P. L. Childress, W. W. Childress and the Board of Regents of the University of Texas in the district court of Harris county, alleging: (a) That J. C. Boyd was a resident of Tarrant county, Tex., the other individual defendants residents of Crockett county, Tex., and that the Board of Regents was comprised of Lutcher Stark of Orange county, Tex., and others whose names are not given; (b) that the two Boyds and Wells owed him $7,500 on a $5,500 promissory vendor's lien note, which they had executed in favor of the Brooks Live Stock Company, in part payment for a certain University lease on Crockett county lands; (c) that P. L. and W. W. Childress had purchased all claims of the defendants Boyd, Wells and Boyd in the above-mentioned lease and were claiming to own the same, but that as a matter of fact their claim was subordinate to the vendor's lien which had been retained to secure payment of the aforesaid note; and, in the alternative, should he be mistaken as to the nature of the claim of the Childresses; (d) that they had purchased the lease in question, with knowledge of the fact that he was the owner of the vendor's lien note; had conspired with the Boyds and Wells to procure a new lease from the Regents, and had converted the lease and all improvements to their own use.

"He sought judgment for amount due on his note against all defendants, together with foreclosure of the vendor's lien, and, in the alternative, for damages in the sum of $7,500 against P. L. and W. W. Childress.

"The defendants P. L. and W. W. Childress, residents of Crockett county, seasonably filed and presented their plea of privilege; as did W. R. Wells, then residing in Tarrant county, Tex., and the Board of Regents, claiming Travis county as its domicile.

"The pleas were heard under the following stipulation:

"`It is stipulated that on the hearing of the pleas of privilege in this cause that the plaintiffs shall be considered as having filed a controverting affidavit setting up that the defendants, J. N. Boyd, J. C. Boyd and W. R. Wells resided in Tarrant county from prior to the filing of the suit to the date of the hearing of the pleas; that at all of said times the defendants P. L. and W. W. Childress resided in Crockett county; and that at all of said times the Board of Regents of the University of Texas had its legal domicile at Austin, Tex. And it is further stipulated that such facts with reference to residences as above stated are true.

                           "`Woods, King & John
                              "`Attys. for Pltff
                           "`B. B. P. & G., by H. L. Bruce
                              "`Attys. for Defts. Childress.'
                

"The trial court sustained all pleas, but decided that Tarrant county was the most convenient county, where venue should lie, and transferred the whole case there.

"P. L. and W. W. Childress excepted to this judgment of the trial court and gave notice of appeal to this court."

On appeal appellants complain only of the refusal of the trial court, after so sustaining pleas of privilege of all the defendants below, to transfer in accord with their prayer at least so much of the cause as affected them to the district court of Crockett county, on these grounds:

"(1) Because it is manifest from an inspection of the plaintiff's petition that the cause of action, if any, alleged against the appellants, is wholly distinct and separable from that urged against the other defendants, and not only so, but that such cause of action concerns lands located in Crockett county, Tex., and is controlled by section 14, art. 1830, R. S. 1911, which fixes the venue in that county.

"(2) Because the statutes only authorize such a transfer where a plea of privilege is sustained, and nowhere do they clothe the trial court with power to select the tribunal in which such a case shall be tried.

"(3) For the reason that the cause of action, in so far as it relates to them, falls within section 14, art., 1830, and can only be adjudicated in that county.

"(4) Because the cause of action, if any, asserted against them, is wholly separable and distinct from that asserted against the other defendants, and can be tried and disposed of without the presence of such other defendants.

"(5) Because it is manifest from the pleadings and proof that such jurisdiction contains the only forum where all issues can be adjudicated over the defendants' pleas of...