Commonwealth Bank & Trust Co. v. Heid Bros.

• Decision Date: 19 July 1932
• Docket Number: No. 1567-5913.,1567-5913.
• Citation: 52 S.W.2d 74
• Parties: COMMONWEALTH BANK & TRUST CO. v. HEID BROS., Inc.
• Court: Texas Supreme Court

52 S.W.2d 74

COMMONWEALTH BANK & TRUST CO. v. HEID BROS., Inc.

No. 1567-5913.

Commission of Appeals of Texas, Section A.

July 19, 1932.

Certified Questions from Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by the Commonwealth Bank & Trust Company against Heid Brothers, Incorporated, and another. From an order sustaining named defendant's plea of privilege, plaintiff appealed to the Court of Civil Appeals, which certified a question to the Supreme Court.

Question answered.

Henry, Bickett & Bickett, of San Antonio, and L. B. Wiseman, of Floresville, for appellant.

Templeton, Brooks, Napier & Brown, of San Antonio, for appellee.

Statement of the Case.

CRITZ, J.

This case is before us on a certified question from the Court of Civil Appeals at San Antonio. The certificate shows that the Commonwealth Bank & Trust Company sued D. D. Marley and Heid Brothers, Inc., in the district court of Bexar county, Tex., upon an indebtedness which arose out of a joint business enterprise of the defendants, and for which they were jointly and severally liable to the bank. D. D. Marley resided at all times here involved in Bexar county, Tex. Heid Brothers, Inc., a corporation whose corporate residence is in El Paso county, Tex., properly pleaded its privilege to be sued in El Paso county. This plea was duly controverted by the bank, and on trial of the plea same was sustained, and the cause, as to Heid Brothers, Inc., ordered transferred to the district court of El Paso county. The bank appealed from this order to the Court of Civil Appeals at San Antonio, which court originally affirmed the judgment of the district court, but on motion for rehearing has certified the following question to the Supreme Court.

"Question: Was this suit of appellant maintainable in Bexar County against appellee, Held Brothers, a corporation domiciled in El Paso County, by virtue of the exceptions to exclusive venue prescribed in Sections 4 and 29a, Art. 1995, in the face of said appellee's timely plea of privilege to be sued in said county of its domicile?"

Opinion.

As we understand this case, it is contended by Held Brothers, Inc., who we hereafter refer to as Heid Bros., that venue does not lie in Bexar county, Tex., in this case as to it because it is a nonresident of such county, and not a necessary party to the suit. In this connection it is noted that Heid Bros. further contend that subdivision 4 of article 1995, R. C. S. of Texas 1925, has been repealed and superseded by chapter 72, Acts 1st Called Sess. 40th Leg. (1927) p. 197 (Vernon's Ann. Civ. St. art. 1995, subds. 7 and 29a); the part thereof pertinent here being section 2 of such act and is carried as subdivision 29a of article 1995, in Vernon's Complete Texas Statutes (Vernon's Ann. Civ. St. art. 1995, subd. 29a), and so referred to hereafter. Before proceeding to discuss the issues here involved, we here copy the two statutes mentioned. They read as follows:

"Art. 1995. No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases: * * *

"4. Defendants in different counties.—If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. The transfer or assignment of a note or chose in action shall not entitle any subsequent holder to sue thereon in any other county than that in which such suit could have been prosecuted if no assignment or transfer had been made."

"Chapter 72.

"An Act amending Subdivision 7, of Article 1995, of the Revised Civil Statutes of the State of Texas, 1925, more distinctly specifying venue in cases of fraud and defalcation and in cases where two or more defendants are involved, and providing that suit may be brought in any county where fraud is committed or where defalcation occurs; and adding a new Subdivision 29a providing that where suit may be lawfully maintained in any county against one defendant, it may be also maintained in the same county against all parties who are necessary parties to the suit; and declaring an emergency. Be it enacted by the Legislature of the State of Texas:

"Section 1. That Subdivision 7, of Article 1995, of the Revised Civil Statutes of the State of Texas, of 1925, be amended so as to read as follows:

"7. Fraud and Defalcation. In all cases of fraud, and in all cases of defalcation by public officers, suit may be brought in the county where the fraud was committed or where the defalcation occurred, or any of such suits may be brought where the defendant has his domicile.

"Sec. 2. That a new Subdivision be added to Article 1995, to be designated as Subdivision 29a, reading as follows:

"29a. Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto.

"Sec. 3. The near approach of...