Eppenauer v. Schrup

• Decision Date: 14 October 1938
• Docket Number: No. 13809.,13809.
• Citation: 121 S.W.2d 473
• Parties: EPPENAUER et al. v. SCHRUP.
• Court: Texas Court of Appeals

121 S.W.2d 473

EPPENAUER et al. v. SCHRUP.

No. 13809.

Court of Civil Appeals of Texas. Fort Worth.

October 14, 1938.

Rehearing Denied November 18, 1938.

Appeal from District Court, Tarrant County; A. J. Power, Judge.

Action by George J. Schrup against A. R. Eppenauer and others for funds alleged to have been received by defendants as result of fraud, for appointment of a receiver, and for accounting of defendants' profits under a contract with plaintiff, in which defendants Eppenauer and another filed pleas of privilege. From a judgment overruling the pleas, the latter defendants appeal.

Affirmed.

Bryan, Stone, Wade & Agerton, of Fort Worth, and Baker & Baker and J. B. Dibrell Jr., all of Coleman, for appellants.

Ernest May and M. L. Swartzberg, both of Fort Worth, for appellee.

SPEER, Justice.

This appeal involves venue under Rev. Civ.St. Art. 1995, and exceptions 4 and 7 thereunder, Vernon's Ann.Civ.St. art. 1995, subds. 4, 7.

On September 1st, 1937, George J. Schrup, as plaintiff, filed in a district court of Tarrant County, Texas, a second amended petition to his original petition filed on June 6th, 1937, in which he sued A. R. Eppenauer, Robert F. Imbt, both alleged to reside in Tarrant County; Cliff Groves, of Coleman County; and Adam Grafe, of Dallas County, for recovery of certain funds alleged to have been received by them as a result of a fraud committed jointly by them in Tarrant County, during the year 1936; that the funds alleged to be in the possession of the defendants are those of plaintiff's, growing out of a contract between plaintiff and Groves, by the terms of which Groves was to use certain oil well drilling equipment in the drilling of oil wells, and that out of the profits arising therefrom, plaintiff was to receive the agreed value of his equipment and funds advanced by him in connection therewith and thereafter to receive one-half of such profits, and Groves the remaining one-half. That plaintiff's said investment amounted to $12,500, and that no part of it had been repaid.

It was alleged that prior to August 25th, 1936, Groves and others had contracted with Eppenauer to drill a well on lands in Young County, and Groves was to receive an undivided interest in the oil leases for the drilling, and that on the date last mentioned, a new contract was made between Eppenauer and Groves, by which the former was to, and did, take charge of plaintiff's drilling equipment and finished the well. It is charged that by said new contract, Groves was to receive an undivided 3/4 ths interest in the leases, or was to receive an assignment from Eppenauer of three of the four leases; that under some secret agreement between Eppenauer and Groves, the former has not assigned said leases to the latter, but by a connivance between Eppenauer and Groves to defraud plaintiff out of his rights in and to said leases, Eppenauer is endeavoring to sell said leases and has in fact sold an interest therein to Grafe, for $6,000 in cash and a deferred payment of the same amount to be paid if, as and when oil is produced therefrom. That said sale was made by Eppenauer and the proceeds thereof were received by him with knowledge that the property so sold belonged to plaintiff; that Eppenauer had retained of the $6,000 so received by him, $2,554.40, delivered to Imbt $246.60, and paid to Groves the remaining $3,199; that the distribution by Eppenauer of said funds took place in Tarrant County, with knowledge of plaintiff's rights therein, and that he fraudulently concealed said transaction from the auditor appointed by the trial court to inspect his books and accounts pertaining to plaintiff's rights under his contract with Groves.

The prayer was for process and final order that the receiver theretofore appointed take charge of the three tracts of land in which plaintiff claimed an interest, and that he be further empowered to take into his custody the funds received by the respective defendants from the attempted sale, and that the defendants be ordered by the court to deliver said funds to the receiver, to be held subject to the further orders of the court. Further, that Groves make an accounting of all profits received by him under his contract with plaintiff, and that Eppenauer and Imbt be required to account for all of such profits held by them.

Both Eppenauer and Groves filed pleas of privilege, the former claiming his residence to be in Jeff Davis County, and Groves claiming Coleman County as his residence. Plaintiff timely controverted the pleas of privilege, claiming specifically that venue lay in Tarrant County, because: (a) Eppenauer lived in Tarrant County at the time of the institution of the suit; (b) A joint cause of action was pleaded against defendants Imbt, Eppenauer and Groves, and that even if Eppenauer did not reside in Tarrant County, the defendant, Imbt, is and was a resident of that county; and (c) This being an action for fraud committed by the named defendants in Tarrant County, venue was fixed in the county where the suit was filed. The second amended petition was made a part of the controverting pleas, and additional allegations were made in the answer, to the effect that Eppenauer connived with Groves in Tarrant County to defraud plaintiff out of his property, by frequently promising plaintiff to see that his interest in said leases should be protected when settlement was made between Eppenauer and Groves, and that he fraudulently failed and refused to keep said promises. This controverting answer brings into consideration exceptions 4 and 7 of R.C.S. Art. 1995.

The issues of venue came on for trial to the court, and after the evidence was al in, both pleas of privilege were overruled. We believe the court was correct in so holding.

Exception No. 4, under our general venue statute, article 1995, insofar as applicable here, reads: "If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides."

In construing the above exception, our courts have held that if the non-resident defendant files his plea of privilege to be sued in the county of his residence, the plaintiff may sustain venue by alleging a joint cause of action against the resident and non-resident defendants, and by making proof of his action against the resident defendant, or by proving such an action against the resident defendant so intimately connected with the cause of action alleged against the non-resident defendant that the two may be joined under the rule intended to avoid multiplicity of suits. That when these allegations are made and proof entered that the one defendant resided in the county in which venue is sought to be held, and that plaintiff has a cause of action against him, as alleged, it is unnecessary to make the additional proof that he likewise has a cause of action against the non-resident defendant. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300.

By plaintiff's petition, he alleged that he was entitled to the $6,000 obtained by Eppenauer from Grafe, and divided by Eppenauer between himself, Groves and Imbt. He prayed that each of those parties be required to deliver the amount they received out of that fund to the receiver. Plaintiff did not know upon what theory it was divided between them, nor the nature of the claim each laid to the portion received. He claimed it was the proceeds of leases earned by Groves under his contract with plaintiff, by which plaintiff should receive such profits until reimbursed for his machinery. The evidence indisputably shows that Imbt was and is a resident of Tarrant County. Plaintiff offered testimony sufficient to prove his contract with Groves, by which plaintiff was to receive the profits derived from the use of the machinery until he was fully paid. The contract between Groves and Eppenauer was in evidence by which Groves and the Dyers were to get from Eppenauer four leases covering 80 acres of land each, in consideration of the surrender and cancellation of a former contract and to permit Eppenauer to use the drilling equipment in completing the well. Eppenauer testified he never did assign the leases to Groves. He also testified that he assigned certain of those leases mentioned in the contract to the Dyers, who were parties to the contract, and that he assigned three 40-acre leases out of those tracts to Adam Grafe, and received $6,000 in cash and further pledges of oil runs.

Plaintiff alleged Imbt got a part of the money under some kind of a claim in the leases, the exact nature of which he did not know. That the money so received was the proceeds of the sales of leases in which plaintiff was interested to the extent of receiving the profits of the drilling contracts made by Groves until he was repaid the amount of his investment; allegations were made and proven that Eppenauer sold the acreage and received the proceeds, and the latter was divided in the proportions shown between these three defendants. Plaintiff was seeking to have the receiver take charge of the fund until the court could determine its proper disposition. He sought to have the court command each of these defendants to deliver to the receiver all of said funds in their respective hands. Insofar as this record is concerned, we can see no reason why Imbt is not a proper party to plaintiff's action.

It is unimportant in this proceeding whether the amount for which Imbt is liable is less than the minimum jurisdiction of the district court. Turner v. Brooks, 2 Tex.Civ.App. 451, 21 S.W. 404. Nor does the question of whether or not Imbt is a proper party under plaintiff's allegations of a fraudulent conspiracy between Eppenauer and Groves...