Good v. Adrian

• Decision Date: 21 May 1921
• Docket Number: (No. 9650.)
• Citation: 233 S.W. 298
• Parties: GOOD v. ADRIAN et al.
• Court: Texas Court of Appeals

233 S.W. 298

GOOD v. ADRIAN et al.

(No. 9650.)

Court of Civil Appeals of Texas. Fort Worth.

May 21, 1921.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Action by Billy Good against Gwendoline Adrian and others. From an order to transfer the cause to another county, plaintiff appeals. Reversed and remanded.

Bryan, Stone & Wade, of Fort Worth, for appellant.

H. S. Lattimore, of Fort Worth, for appellees.

BUCK, J.

Plaintiff, Billy Good, filed suit in the district court of Tarrant county against Gwendoline Adrian and her husband, alleged to reside in Tarrant county, and Dessie Wiliams and her husband, Nep Williams, L. A. Ledbetter, and W. L. Ledbetter, alleged to reside in Hardeman county. The plaintiff alleged that the defendants named and other parties were heirs at law of L. J. Ledbetter and his two wives; that Ledbetter and his said wives were all dead prior to April 13, 1917, having died intestate, leaving a community estate of said two marriages, which was located in Chillicothe, Hardeman county, Tex.; that no administration was ever had on said estate, and that the estate belonged to said heirs; that on said date the defendants, in conjunction with other heirs named, executed a power of attorney, by the terms of which they authorized the plaintiff as attorney in fact to settle up the estate and to divide it among the heirs; that the defendants and other heirs agreed that each would pay his pro rata part of the reasonable expenses and attorney's fees incurred in the settlement; that, acting under the said power of attorney and in behalf of said heirs at law, the plaintiff incurred and paid and became liable to pay certain items of expenses, including railroad fare, hotel bills, attorney's fees, etc., aggregating $1,121.41, and that the estate was partitioned among the heirs; that all of the heirs except W. L. Ledbetter signed the power of attorney, and that subsequently and pending the suit for partition, Estella Ledbetter Truitt and husband sold and conveyed their interest in said estate to the defendant W. L. Ledbetter, who, as a part of the consideration for the purchase of said interest, assumed the payment of Mrs. Truitt's pro rata part of the expenses incurred. In the alternative, plaintiff alleged that if W. L. Ledbetter did not assume the payment of Mrs. Truitt's pro rata part of the expenses, he purchased said interest in said estate with full knowledge and notice that said power of attorney had been so executed, and that said interest was charged with a lien in favor of said Good for the expenses incurred by him under said power of attorney.

Defendants Dessie Williams and husband and L. A. Ledbetter and W. L. Ledbetter filed their plea of privilege to be sued in Hardeman county. The plaintiff filed a controverting affidavit, stating that, inasmuch as the defendant Gwendoline Adrian and husband resided in Tarrant county, and that the suit was brought for the purpose of recovering a judgment against all of the defendants on the joint and several obligations described in plaintiff's petition, executed by all of the heirs except W. L. Ledbetter, and, as alleged, W. L. Ledbetter had assumed the payment of the pro rata part of Mrs. Truitt, the venue was properly laid in Tarrant county in a suit against all the defendants.

Evidence was introduced showing Mrs. Adrian and husband lived in Tarrant county, and the other defendants lived in Hardeman county, and that the power of attorney had been executed by the heirs, including the defendants aforesaid, except W. L. Ledbetter. The court sustained the plea of privilege, and ordered the cause to be transferred to the district court of Hardeman county, and the plaintiff has appealed.

The power of attorney contains the following clause:

"We do further agree that all usual and reasonable expenses of our said attorney in effecting the closing and settlement of said estate, including railroad fare, hotel bills and other expenses, and reasonable attorney fees, together with costs of court, shall be paid by us and deducted from our share and portion of the said estate, pro rata, in the event of nonpayment of the same."

In the case of Merchants' & Manufacturers' Lloyds' Insurance Exchange v. Southern Trading Co. of Texas, 205 S. W. 353, which was a suit against the Exchange and a number of persons who were alleged to be individual underwriters of the policy of insurance, this court in an opinion by Chief Justice Conner, said:

"Arising out of such wording of the policies appellants insist that the court erred in not sustaining their plea of misjoinder of parties and causes of action, the contention being that where the liability of each underwriter is fixed at a certain and definite percentage of the loss, and the policy stipulates that the liability of each is separate and distinct from that of any and all other underwriters, it is a misjoinder of parties and causes of action for the plaintiff to join all underwriters in one suit. While it...