Guerra v. Lemburg

• Decision Date: 30 October 1929
• Docket Number: (No. 8260.)
• Citation: 22 S.W.2d 336
• Parties: GUERRA v. LEMBURG et al.
• Court: Texas Court of Appeals

22 S.W.2d 336

GUERRA v. LEMBURG et al.

(No. 8260.)

Court of Civil Appeals of Texas. San Antonio.

October 30, 1929.

Rehearing Denied December 11, 1929.

Appeal from District Court, Hidalgo County; A. W. Cunningham, Judge.

Suit by E. G. Guerra against F. W. Lemburg and others. From a judgment sustaining pleas of privilege filed by defendant Commercial State Bank of Sinton and others, plaintiff appeals. Reversed and remanded for trial in the district court of Hidalgo county.

Seabury, George & Taylor, of Brownsville, for appellant.

E. B. Ward, of Corpus Christi, and B. D. Kimbrough, of McAllen, for appellees.

FLY, C. J.

This is an appeal from a judgment on a plea of privilege filed by the Commercial State Bank of Sinton, the City National Bank of Corpus Christi, and Clark Pease, president of the last-named bank, to be sued in San Patricio and Nueces counties, respectively. The pleas were controverted, but were sustained by the court. Lemburg lived in Hidalgo county, and fraud on the part of the banks in Hidalgo county and agency for them of Lemburg were the grounds for the joinder of the parties, and on those grounds the suits were instituted in Hidalgo county. The City National Bank not only claimed the right under the state law to be sued in Nueces county, but also under a statute of the United States, which it is claimed denies a suit against a national bank, except in the county of its domicile.

Under the state law, the alleged fraud in procuring the promissory note of appellant was sufficient to place the venue in Hidalgo county. If, as alleged, false representations were made in Hidalgo county, as to what Pease intended to do, and as to the solvency of the First National Bank at McAllen, and those representations were made as the president of the Corpus Christi Bank and in its interest, the suit was properly brought in Hidalgo county, under Texas law. Appellant sought to cancel the notes given by him, alleging fraud on the part of Pease and the two banks in procuring the notes. Rev. Stats. 1925, art. 1995, subd. 7, as amended by the Fortieth Legislature, First Called Session, p. 197, c. 72.

However, it is the contention of appellees that under the federal statute a national bank can only be sued in a state court in the county of its domicile, and we are cited to a statute passed by Congress in 1875 to sustain the contention, and the case of First Nat. Bank of Charlotte v. Morgan, 132 U. S. 141, 145, 10 S. Ct. 37, 33 L. Ed. 282, which explains the reason for the enactment of the statute and construes its provisions. The statute of 1875 (12 USCA § 94) gives jurisdiction over national banks in state courts "in the county or city in which said association is located having jurisdiction in similar cases." Judge Harlan, of the United States Supreme Court, held that, in the case he was considering, penalties were sought in a state court arising from the payment of usurious interest, and that the acts of 1864 and 1875 were enacted for the purpose of extending the jurisdiction theretofore given state courts to penalties which before the enactment of the statute named had been denied state courts. The Supreme Court construed the language of the act of 1875 as to venue to refer to penalties alone, and says that exemption from suits, except in the county of the domicile, was enacted to "prevent interruption in their business that might result from their books being sent to distant counties in obedience to...