Foster v. Pace Packing Co.
| Decision Date | 04 June 1954 |
| Docket Number | No. 3092,3092 |
| Citation | 269 S.W.2d 929 |
| Parties | FOSTER et al. v. PACE PACKING CO. |
| Court | Texas Court of Appeals |
A. C. Cook, Lubbock, for appellants.
McMahon, Springer, Smart & Walter, Abilene, for appellee.
This is an appeal from an order overruling a plea of privilege. Pace Packing Company, composed of J. C. Pace, Jr. and Dill Pace, a partnership, brought suit in the County Court of Nolan County, Texas, against Kelly L. Fregia, Clyde Foster and Billy Mitchell. Defendant Kelly L. Fregia filed no answer and made no appearance but the defendants Clyde Foster and Billy Mitchell filed pleas of privilege seeking to remove the cause so far as it concerned them to Lubbock County, Texas, the alleged place of their residence. After a hearing before the court without a jury, an order was entered that the pleas of privilege be overruled. Clyde Foster and Billy Mitchell have appealed.
The basis of the cause of action set out in appellee's petition as plaintiff was a sworn account for goods, wares and merchandise sold and delivered to Kelly L. Fregia, doing business as the Fregia Grocery in Lubbock, Texas, and for which it was alleged that Fregia executed a certain instrument in writing agreeing to pay to appellee the sum of $617.30, the amount of such account in Sweetwater, Nolan County, Texas. The petition further alleged a partnership between defendants, Fregia and Foster, and in the alternative alleged that Foster and Mitchell are now claiming to have acquired an interest in the stock of goods located in the grocery store formerly operated by Fregia in Lubbock, Texas; that Foster acquired such business and stock of goods from Fregia and the manner in which he acquired and took possession of such business and stock of goods was in violation of the Bulk Sales Law of Texas; that Mitchell, who is now in possession of said stock of goods and is operating said business, acquired same from Foster likewise in violation of the Bulk Sales Law thereby rendering plaintiff's claim to said stock of goods superior to that of defendants, Clyde Foster and Billy Mitchell, and also rendering Foster and Mitchell and the stock of goods liable to Pace Packing Company for the full amount of such account.
The pleas of privilege of both Foster and Mitchell denied under oath that they were indebted to appellee in any sum and denied that Foster and Mitchell were partners, but Foster did not deny under oath, or otherwise, that he was a partner of Fregia. Neither did he deny the justness of the account or the execution of the promise to pay same in Nolan County, Texas, by Fregia in behalf of the firm. Appellee duly filed controverting affidavits to both pleas of privilege and in each referred to and incorporated therein, by reference, all the allegations of its original petition. It was alleged in effect that Foster's plea of privilege was not good because Fregia and Foster were partners in the operation of such grocery business and that Fregia had executed a written promise to pay the account in Nolan County, Texas; that such partners were jointly and severally liable for the account. It was further alleged that in any event both Foster and Mitchell were properly sued in Nolan County under Subdivision 29a of Article 1995, Vernon's Texas Revised Civil Statutes, which provides that when suit is brought in any county in this State against two or more defendants and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then it may also be maintainable in such county against any and all necessary parties thereto; that Foster...
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Howell v. Bowden, 16149
...Therefore the partnership stands as admitted. Coulson v. Alvis Auto Rentals, Tex.Civ.App., 352 S.W.2d 849; Foster v. Pace Packing Co., Tex.Civ.App., 269 S.W.2d 929. Further, the undisputed facts as hereinbefore set out, most of them admitted by appellant or disclosed by exhibits prepared an......
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Dina Pak Corp. v. May Aluminum, Inc.
...Inc. v. Hill, Tex.Civ.App., 340 S.W.2d 957; Smith v. First Nat. Bank in Groveton, Tex.Civ.App., 146 S.W.2d 270; Foster v. Pace Packing Company, Tex.Civ.App., 269 S.W.2d 929. Judgment is affirmed as to the defendant Dina Pak Corporation, and reversed and rendered sustaining the plea of privi......
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Allan Const. Co., Inc. v. Parker Bros. & Co., Inc.
...art. 1995 (Supp.1975--76) under the same rules of law set forth in our consideration of Section 23. See Foster v. Pace Packing Co., 269 S.W.2d 929 (Tex.Civ.App.--Eastland 1954, no writ); Gonzalez v. Burns, 397 S.W.2d 898 (Tex.Civ.App.--San Antonio 1965, writ dism'd); Romer v. Gruver State B......
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Foster v. Pace Packing Company
...order overruling the pleas of privilege was reversed as to the defendant Billy Mitchell and affirmed as to the defendant Clyde Foster. 269 S.W.2d 929. The case against Foster and Fregia was then brought to trial on its merits and the court at the conclusion of the evidence directed the jury......