Cotton States Petroleum Co. v. Britton

• Decision Date: 28 April 1921
• Docket Number: (No. 1223.)
• Citation: 230 S.W. 742
• Parties: COTTON STATES PETROLEUM CO. et al. v. BRITTON et ux.
• Court: Texas Court of Appeals

230 S.W. 742

COTTON STATES PETROLEUM CO. et al. v. BRITTON et ux.

(No. 1223.)

Court of Civil Appeals of Texas. El Paso.

April 28, 1921.

Appeal from District Court, Erath County; J. B. Keith, Judge.

Action by G. S. Britton and wife against the Cotton States Petroleum Company and others. From an order overruling pleas of privilege, defendants appeal. Reversed and remanded, with instructions.

Spence, Haven & Smithdeal, of Dallas, and Hickman & Morrow, of Dublin, for appellants.

J. A. Johnson and Chandler & Pannill, all of Stephenville, for appellees.

HIGGINS, J.

The appellants appeal from an order overruling pleas of privilege filed by them, claiming the right to be sued in Dallas county.

The suit was brought in the district court of Erath county against the Cotton States Petroleum Company (which will be hereinafter designated as the company), M. H. Thomas, F. D. Thomas, F. H. Blankinship, S. F. Cade and Joe Thomas.

It was alleged that the company was an unincorporated common-law association, and that M. H. Thomas, F. D. Thomas, and Blankinship were its trustees and members of the association and stockholders therein, and that Cade and Joe Thomas were likewise stockholders and members of the association. The suit was to recover of the defendants jointly and severally the sum of $20,000 for the breach of a bond given by the company as principal, with M. H. Thomas, F. H. Thomas, and Cade as sureties. The bond in question was in the sum of $20,000, and conditioned that the company would prosecute to completion at the earliest practicable date an oil and gas well on certain land in Eastland county owned by G. S. Britton. The bond did not specify the place of payment. Its breach was set up. The petition did not undertake to specify the terms or conditions of the articles of the company, but it was averred that the company and the individual defendants, as stockholders and members thereof, were liable to the plaintiffs as partners.

Pleas of privilege were filed by each of the defendants except Joe Thomas. The pleas of the individuals set up that they were residents of Dallas county, and the plea of the company set up that its residence and that of its trustees was in Dallas county. Plaintiffs filed a controverting affidavit to the pleas of the company, M. H. Thomas, F. D. Thomas, and F. H. Blankinship. The record does not disclose any controverting affidavit to Cade's plea.

The assignments of the company are all overruled because the evidence is sufficient to support a finding that it had an agent and representative in Erath county. Article 1830, R. S. subd. 24.

Passing now to the assignments presented by M. H. Thomas, F. D. Thomas, Blankinship, and Cade, the evidence does not show that the principal office or place of business of the company is in Erath county. It is shown that its headquarters are in Dallas county, and that its trustees reside in that county. We think the evidence insufficient to support a finding that it is a resident of Erath county. This being true, the suit cannot be maintained in Erath county against these individual appellants under subd. 4, art. 1830, even if the company was suable there by virtue of the fact that it had an agent in that county. Railway Co. v. McKnight, 99 Tex. 289, 89 S. W. 755.

The only ground upon which they could be sued there would be by virtue of the residence in that county of the defendant Joe Thomas. Article 1830, subd. 4. But if Joe Thomas was neither a necessary nor proper party his joinder in the suit would not confer jurisdiction over the persons of these nonresident defendants. Railway Co. v. Mangum, 68 Tex. 342, 4 S. W. 617. Whether he was such a party depends upon whether he and these individual defendants were jointly liable upon the obligation of the company herein sued upon. Railway Co. v. Mangum, supra. The theory of the appellee is that the association...