Clark v. Dallas Joint Stock Land Bank of Dallas

• Decision Date: 20 June 1941
• Docket Number: No. 13038.,13038.
• Citation: 153 S.W.2d 668
• Parties: CLARK et ux. v. DALLAS JOINT STOCK LAND BANK OF DALLAS.
• Court: Texas Court of Appeals

153 S.W.2d 668

CLARK et ux. v. DALLAS JOINT STOCK LAND BANK OF DALLAS.

No. 13038.

Court of Civil Appeals of Texas. Dallas.

June 20, 1941.

Rehearing Denied July 25, 1941.

Appeal from District Court, Dallas County; Sarah T. Hughes, Judge.

Suit by the Dallas Joint Stock Land Bank of Dallas against W. B. Clark and wife, Lucy V. Clark, for debt, evidenced by a note, and for foreclosure of a trust deed on realty. Prior to the institution of the suit the realty was sold at a trustee's sale, and the plaintiff became the purchaser thereof. To secure possession of the realty, the plaintiff amended its petition, setting up claim on the note and foreclosure of the trust deed, and claim in trespass to try title for the title and possession of the realty. The defendants filed pleas of privilege which were overruled. From an adverse judgment, the defendants appeal.

Judgment affirmed.

Allen & Allen, of Dallas, Mayo W. Neyland, of Greenville, and W. H. Crunk, of Cooper, for appellants.

Lawther, Cramer, Perry & Johnson, of Dallas, for appellee.

BOND, Chief Justice.

The plaintiff (appellee), Dallas Joint Stock Land Bank of Dallas, instituted this suit in a District Court of Dallas County, Texas, against the defendants (appellants), W. B. Clark and wife, Lucy V. Clark, for debt, evidenced by note, and for foreclosure of deed of trust on land located in Delta County, Texas. The note and deed of trust were executed by defendants, the note made payable in Dallas County. It appears from the pleadings that, prior to the institution of the suit, the land was sold at trustee's sale; plaintiff became the purchaser thereof, and received a deed in conformity with such sale. However, to secure possession of the land, which was in dispute, plaintiff amended its petition, setting up claim against defendants in two counts: One, upon said note and foreclosure of the deed of trust, and the second, in trespass to try title for the title and possession of the land.

In due time, and in proper form, the defendants filed pleas of privilege to be sued in Delta County, on the ground that the land in suit is situated in that county (Art. 1995, Subd. 14, R.C.S., 1925). The pleas of privilege were timely controverted, plaintiff contending that the suit in trespass to try title is merely incidental to its original cause of action on the note, payable in Dallas County, hence, the venue of both counts lies in Dallas County.

On hearing in the 95th District Court of Dallas County, June 22, 1939, the pleas of privilege were overruled; the defendants excepted and gave notice of appeal to the Court of Civil Appeals. Thereafter, on November 24, 1939, at a subsequent term, the cause was, in the 14th District Court, duly tried to a jury on its merits, and, on the verdict rendered, judgment was entered in favor of the plaintiff for title and possession of the land in suit; to which judgment, appellants also gave notice of appeal and, on January 26, 1940, filed the following appeal bond: "Whereas, in the above styled and numbered cause pending in the 14th Judicial District Court of Dallas County, Texas, and at a regular term of said court to-wit; on the 24th day of November, A. D. 1939, plaintiff, Dallas Joint Stock Land Bank of Dallas, recovered judgment against defendants, W. B. Clark and wife, Lucy V. Clark for the title and possession of that certain 113.77 acres of land fully described in Plaintiff's Original Petition and First Amended Original Petition in this cause, being situated in Delta County, Texas, and for all costs of suit; and whereas, on the 28th day of December, A. D. 1939, a motion theretofore filed by the said W. B. Clark, and Lucy V. Clark for a new trial, was overruled, to which action and ruling of the court the said W. B. Clark and Lucy V. Clark then and there excepted and gave notice of appeal to the Court of Civil Appeals for the 5th Supreme Judicial District, at Dallas, in Dallas County, Texas. Now, therefore, we, W. B. Clark, and Lucy V. Clark, as principal, and Lloyds Casualty Insurer, a corporation whose domicile and principal place of business is in Houston, Harris County, Texas, and of which Warren P. Castle is its Deputy Attorney in Fact, in Dallas, Dallas County, Texas, as surety, acknowledge ourselves bound to pay to said Dallas Joint Stock Land Bank of Dallas, plaintiff, the sum of One Thousand ($1000.00) & No/100 Dollars, and costs of suit, conditioned that the said W. B. Clark and wife, Lucy V. Clark, appellants, shall prosecute their said appeal with effect, and in case the judgment of the Supreme Court or the Court of Civil Appeals shall be against them, they shall perform its judgment, sentence or decree and pay all such damages as said court may award against them and that appellants, in case the judgment is affirmed, pay said Dallas Joint Stock Land Bank of Dallas, appellee, the value of the rent or hire of such property in any suit which may be brought therefor."

It will be observed from the bond filed that this appeal is from the judgment on the merits of the case, entered on November 24, 1939, by the 14th District Court of Dallas County; and that the judgment overruling the pleas of privilege, entered on June 22, 1939,...