Crawford v. Sanger, 2193.

• Citation: 160 S.W.2d 115
• Decision Date: 12 December 1941
• Docket Number: No. 2193.,2193.
• Parties: CRAWFORD v. SANGER et al.
• Court: Court of Appeals of Texas

160 S.W.2d 115

CRAWFORD v. SANGER et al.

No. 2193.

Court of Civil Appeals of Texas. Eastland.

December 12, 1941.

Rehearing Denied February 27, 1942.

Appeal from District Court, Dallas County, 116th District; Paine L. Bush, Judge.

Bill of discovery by Stella H. Sanger against Nellie D. Crawford and another, wherein defendant Nellie D. Crawford filed a plea of privilege to be sued in McLennan County. From a judgment overruling the plea, defendant Nellie D. Crawford appeals.

Judgment reversed and case transferred to proper court of McLennan County.

Kyle Vick, of Waco, for appellant.

McCombs & Andress, of Dallas, for appellees.

FUNDERBURK, Justice.

Stella H. Sanger (single), a resident of McLennan County, brought this action in Dallas County against Nellie D. Crawford (single), a resident of McLennan County, and Franklin Life Insurance Company (a corporation), "having", as alleged, "an office and place of business in Dallas County, Texas, with Henry T. Hinsch as its local agent in Dallas County." The nature of the action was a Bill of Discovery, as provided in R.S. 1925, Art. 2002. Plaintiff alleged she was assignee of a final, unsatisfied, still subsisting judgment, rendered January 31, 1930, in favor of her husband, Asher S. Sanger (since deceased), against W. V. Crawford (also since deceased) in the sum of $7,857.91, plus interest and costs. Concerning the information designed to be elicited by nine interrogatories set forth, it was alleged that the plaintiff "has no other source of information except by discovery on the part of said Franklin Life Insurance Company." As to information designed to be elicited by other interrogatories it was alleged that the plaintiff "has no other source of information * * than to secure such information from the defendant Mrs. Nellie D. Crawford, who was the widow of the deceased [judgment] debtor." The prayer, other than for discovery and general relief, was "that after such discovery and upon final hearing hereof she [plaintiff] have judgment for such amount as may be found to be applicable to her judgment."

Defendant, Nellie D. Crawford, duly filed a plea of privilege which, being contested, was upon hearing overruled.

As setting forth facts to show one or more exceptions to the general rule of venue, the controverting plea, adopting as a part thereof the allegations of the plaintiff's petition, further alleged as follows: "This court has venue of this suit against Nellie D. Crawford by reason of subdivision 4 of Art. 1995, of the 1925 R.C.S. of Texas, and by reason of Sec. 1, Chap. 213, of the Acts of the 44th Legislature of Texas, at its regular session [Vernon's Ann.Civ.St. art. 1995, exception 5], because it is a suit against two defendants, one of whom resides in Dallas County and against one of whom this suit is lawfully maintainable in Dallas County, and the defendant Nellie D. Crawford is a necessary party to such action and that inasmuch as the defendant Franklin Life Insurance Company resides in Dallas County, has an agent in Dallas County, and suit against said company is lawfully maintainable in Dallas County, it is also maintainable against the defendant Crawford."

From the order overruling the plea of privilege, the defendant, Nellie D. Crawford, has appealed, and will hereinafter be referred to as Appellant.

The questions presented for decision in this case may, perhaps, be more clearly set forth and understandably discussed in the light of some preliminary examination of a few matters regarding venue and privilege deemed to be settled by the decisions.

The action of the court in overruling the plea of privilege must be sustained, if at all, on one or the other of two grounds: (1) That the suit was against two or more defendants, and one of them (Franklin Life Insurance Company) had its place of residence in Dallas County; or (2) that venue in Dallas County was sustainable against Franklin Life Insurance Company under some exception to the general rule of venue and Appellant was a necessary party to the (at least one) cause of action alleged against Franklin Life Insurance Company. The reference to "Sec. 1, Chap. 213 of the Acts of the 44th Legislature of Texas at its regular session" must have been an error. That exception being Vernon's Ann. Civ. St. Art. 1995, exception 5, appears to have no application. The subject matter of the Controverting Plea suggests that the intention was to refer to Acts 1927, 40th Legislature, First C.S. p. 197, ch. 72, sec. 2, Vernon's Ann.Civ. St. Art. 1995, exception 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." We shall assume that exception 29a was the second exception intended to be invoked to sustain the venue.

It is believed that practically no occasion would ever arise for a party to have recourse to both exceptions 4 and 29a to sustain, as against a plea of privilege, the venue of a suit outside of the county of a defendant's residence. If exception 4 is applicable to any suit, then 29a can afford no additional support to the venue. Practically, the application of exception 29a is restricted to suits wherein the venue is sustainable as to one or more defendants other than the defendant asserting privilege only under some of the exceptions, other than exception 4 to the general rule. In such case, exception 29a permits the joinder of any additional necessary party. When venue is sought to be sustained under exception 29a, there is always at least one other exception involved in connection with which only can 29a be operative. Two well-considered opinions of the Supreme Court rendered one week apart well illustrate the difference between exception 4 and any other exception to the general rule of venue. They are Behrens Drug Co. v. Hamilton, 92 Tex. 284, 48 S.W. 5, and Cobb v. Barber, 92 Tex. 309, 47 S.W. 963. It is not inapt to describe exception 29a as changing the law as interpreted in Behrens Drug Co. v. Hamilton, supra, by excepting from its operation any defendant who, although not a resident of the county in which the suit is brought, is a necessary party to the suit. In other words, as to a defendant who is a necessary party to a suit, exception 29a practically abolishes the distinction between Cobb v. Barber, supra, and Behrens Drug Co. v. Hamilton, supra, and such is its only effect. Rule 29a made no change in Cobb v. Barber, applicable to exception 4. It made no change in any other of the thirty or more exceptions to the general rule of venue. First Nat. Bank v. Pierce, 123 Tex. 186, 69 S.W.2d 756. Under exception 29a it is wholly immaterial whether a defendant asserting a plea of privilege be a proper party if he be not a necessary party. Under exception 4 it is wholly immaterial whether a defendant claiming privilege be a necessary party if he be a proper party. Exception 29a was a new and theretofore non-existent exception, but which, as said before, only operates in connection with some other exception. In any case, the venue of which is sustainable, if at all, by the provisions of exception 29a there are two primary matters of inquiry. They are: (1) As to some of the defendants, other than the defendant claiming his privilege, is the venue sustainable, but sustainable only, by reason of an exception to the general rule? (2) If so, then is the cause of action against such defendants one as to which the defendant claiming his privilege is a necessary (not merely proper) party?

The rule is that "venue facts" must be pleaded and proved as the necessary basis of a judgment overruling a plea of privilege. "Venue facts" are the facts which, by provision of R.S. 1925, Art. 1995, constitute an exception (or exceptions) to the general right of a defendant to be sued in the county of his residence. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91; Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1302.

The decisions defining the venue facts comprising exception 4 raise some difficult questions of logical consistency. Apparently there are only two venue facts involved. They are stated in Stockyards National Bank v. Maples, supra, to be [1] "the residence of one of the defendants in the county where the suit is pending and [2] a suit brought against two or more defendants." But, under decisions of the courts, there are one or more other venue facts comprised in exception 4. Whether there is just one more (the fact of the existence of a cause of action against the resident defendant), or whether there are more than one (every element of such cause of action being a venue fact), was for a time a question to which the decisions gave no clear answer. In Stockyards National Bank v. Maples, supra, which involved section 4, it was said "As has been shown, the decisions of the courts have added another venue fact to those prescribed by the language of exception 4." (Italics ours) Such "another" venue fact thus referred to was the existence of a cause of action against the resident defendant. The court further said: "Proof by the plaintiff that he has a cause of action against the resident defendant is relevant to the issue of venue, in that the plaintiff in making such proof conclusively shows his good faith in the selection of the venue; but proof by the plaintiff that he has a cause of action against the nonresident defendant has no relevancy to the issue of venue." However, the later decisions of the Supreme Court in A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619, and Blanton v. Garrett, 133 Tex. 399, 129 S.W.2d 623, especially when read in connection with the majority and minority opinions of the Court of Civil Appeals in the first case (A. H. Belo Corp. v. Blanton, 126 S.W.2d 1015), leave no escape from the...