Duffy v. Cole Petroleum Co.

• Decision Date: 25 April 1928
• Docket Number: (No. 918-5001.)
• Parties: DUFFY v. COLE PETROLEUM CO. et al.
• Court: Texas Supreme Court

5 S.W.2d 495

DUFFY v. COLE PETROLEUM CO. et al.

(No. 918-5001.)

Commission of Appeals of Texas, Section B.

April 25, 1928.

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

Suit by P. J. Duffy against the Cole Petroleum Company and others, in which defendants filed a plea of privilege. The trial court sustained the pleas of privilege, and plaintiff appealed to the Court of Civil Appeals, which certifies questions to the Commission of Appeals. Questions answered.

K. C. Barkley and A. M. Waugh, both of Houston, for appellant.

Hicks, Hicks, Dickson & Bobbitt, of San Antonio, and Yale Hicks, of Laredo, for appellees.

SHORT, P. J.

The following is the certificate from the honorable Court of Civil Appeals for the First Supreme Judicial District, presented to the Supreme Court and referred to this section of the Commission for disposition:

"On original hearing in this cause, now pending here upon an undetermined motion for rehearing, this court held that venue against individual nonresidents may not be sustained in a different county, despite their pleas of privilege to be sued in their own county, by the mere general allegation, made as in compliance with R. S. art. 2007, that other defendants were corporations having their domicile in the county of the suit and were proper defendants in the cause, there being neither specific facts stated nor even prima facie proof offered tending to indicate that they were such proper parties.

"The facts upon which the holding was made were as follows:

"In the district court of Harris county appellant as plaintiff sued Cole Petroleum Company both as a corporation and a partnership, C. R. Cole and Dudley A. Tyng, individually and as members of the alleged partnership, making the Houston Oil Company and Houston Pipe Line Company, both corporations, parties, and declared upon a broker's contract for a commission on the alleged sale to the Houston Oil & Pipe Line Companies of oil and gas rights in certain lands the other defendants owned in Webb county, his trial petition in material substance charging:

"That they had agreed with him that, if he found a purchaser with whom they contracted for the sale thereof, he should have a 10 per cent. interest in the proceeds; that he did find such purchasers in the Houston Oil & Pipe Line Companies, with whom these other defendants made two certain contracts entitling them to specified payments and royalties from time to time over an extended period, these contracts being attached as exhibits to his pleading; and that, by reason of his own contract with such defendants for the commission, he had an interest in these payments as and when they became due from the Houston Companies, which in fact thus became trustees for him therefor.

"The defendants Cole and Tyng, individually and as partners, pleaded privilege in statutory form, claiming the right to be sued in Webb county, whereupon appellant as plaintiff filed this controverting affidavit:

"`And controverting the plea of privilege filed by the defendants C. R. Cole and Dudley A. Tyng, individually and as members of the partnership of Cole Petroleum Company, plaintiff respectfully shows to the court that the defendants Houston Oil Company of Texas and Houston Pipe Line Company are proper defendants in this cause, and that each of said defendants Houston Oil Company of Texas and Houston Pipe Line Company are corporations having their domicile in Harris county, Tex.

"`Wherefore, plaintiff says that said pleas of privilege should be in all things overruled.'

"In reply, the named defendants, appellees here, excepted to this controverting plea upon the ground that it did not state the facts relied upon to confer venue, but merely a legal conclusion, and also denied that either of the Houston companies was a necessary party to the suit, charging that they had been made parties solely to further the attempt to give the district court of Harris county jurisdiction over themselves.

"On the issue thus joined, the only evidence introduced, in addition to an agreement between the litigants that at all material dates the appellees had been residents of Webb county and the two Houston companies of Harris county, consisted of the original and trial petitions of the appellant, together with the two previously described contracts attached as exhibits thereto; these contracts were exclusively between the two Houston companies and the appellees, made no reference whatever to the appellant, and in no way indicated that he had any connection with or interest in the sale of the oil and gas rights from the appellees to the Houston companies, which they evidenced.

"The trial court sustained the pleas of privilege, and this court affirmed that action in the holding first referred to.

"On reconsideration, however, this court's jurisdiction seeming to be final, and there being earnest contention made upon the one side that its former decision is in conflict with the holdings of other Courts of Civil Appeals, especially in the cases of Humphreys v. Young, 293 S. W. 655, and Waxahachie Nat. Bank v. Rothschild, 235 S. W. 633, and upon the other that it is in exact accord with the opinion of the Commission of Appeals in Richardson v. Cage, 113 Tex. 152, 252 S. W. 747, we deem it advisable to certify for your answer these inquiries:

"(1) Was the quoted sworn pleading controverting the plea of privilege a sufficient compliance with R. S. art. 2007?

"(2) With appellant's petition containing in substance the averments above stated, and he having so joined in the county of the suit both the resident and nonresident defendants, was it necessary upon the hearing of the plea of privilege for him to prove, prima facie at least, that by the terms of his alleged contract with the nonresident defendants he was entitled to some percentage of the fund to be accumulated in the hands of either or both of the corporate defendants resident in Harris county?"

It will be noted that the individual defendants pleaded a privilege in the statutory form claiming the right to be sued in Webb county, from which it is apparent that under article 2007, Revised Statutes of 1925, in the absence of a filing within due time of a controverting affidavit, the plea constituted prima facie proof of the defendants' right to change the venue. The controverting affidavit, which was duly filed within the time prescribed by law, merely says that the corporation defendants are proper parties, having their domicile in Harris county, where the suit was brought. The statute requires that a controverting affidavit shall specifically set out the "fact or facts relied upon to confer venue of such cause on the court where the cause is pending." The parties, claiming the privilege to be sued in their own county, excepted to this controverting plea upon the plea that it did not state the...