H. C. Burt & Co. v. City of Spearman

• Decision Date: 05 June 1929
• Docket Number: (No. 7374.)
• Citation: 19 S.W.2d 96
• Court: Texas Court of Appeals
• Parties: H. C. BURT & CO. v. CITY OF SPEARMAN et al.

19 S.W.2d 96

H. C. BURT & CO. v. CITY OF SPEARMAN et al.

(No. 7374.)

Court of Civil Appeals of Texas. Austin.

June 5, 1929.

Appeal from District Court, Travis County; George Calhoun, Judge.

Action by H. C. Burt, doing business as H. C. Burt & Co., against the City of Spearman and others, in which defendants filed a plea of privilege. From an order sustaining the plea of privilege and transferring the case, plaintiff appeals. Affirmed.

White, Wilcox & Taylor, of Austin, for appellant.

Tatum & Strong, of Dalhart, and Chas. L. Black and Robert M. Turpin, both of Austin, for appellees.

BAUGH, J.

This is an appeal from an order of the district court of Travis county sustaining the plea of privilege of the appellees and transferring the case to the district court of Hansford county, Tex.

H. C. Burt of Houston, Tex., doing business as H. C. Burt & Co., sued the city of Spearman, its mayor and aldermen, to set aside a contract between appellant and said appellees, wherein appellant agreed to purchase $55,000 worth of bonds to be issued by the city of Spearman, subject to approval of said bonds by appellant's attorneys. Appellant also alleged that he had delivered to the mayor of the city of Spearman a cashier's check for $1,100, issued by the Security Trust Company of Austin, Tex., payable to said mayor at Austin, Tex., as evidence of his good faith in carrying out said contract, said check to be cashed by said mayor when the purchase was consummated or upon default by appellant in carrying it out. Appellant made the Security Trust Company of Austin, Tex., party defendant; prayed for, and was granted, a temporary injunction by the Travis county district court restraining the mayor of Spearman from cashing, and the Security Trust Company from paying, said cashier's check, pending the outcome of this suit. Appellees filed their plea of privilege to be sued in Hansford county. This was controverted by appellant, on the ground that the Security Trust Company was a necessary and proper party to said suit; that it had its domicile in Travis county, Tex., and that the Travis county district court had venue of the suit. The trial court sustained appellees' plea of privilege after hearing thereon, and ordered the case transferred to the district court of Hansford county. Hence this appeal.

If the Security Trust Company was a necessary or proper party to said suit, venue was preperly laid in Travis county under article 1995, § 4, Revised Statutes of 1925. Cotton Concentration Co. v. Bank (Tex. Civ. App.) 245 S. W. 118.

We have reached the conclusion, however, that as between the appellant and the Security Trust Company the appellant has asserted no cause of action whatever, except that ancillary to the main suit, which is not sufficient to sustain venue in Travis county. Royal Amusement Co. v. Columbia Piano Co. (Tex. Civ. App.) 170 S. W. 278; Garrett v. Bank (Tex. Civ. App.) 192 S. W. 313; Uvalde Rock Asphalt Co. v. Ry. Co. (Tex. Com. App.) 267 S. W. 688. Appellant's prayer for relief indicates the nature of the cause of action asserted. He asked that the court enter a judgment "holding said contract of purchase and sale to have been ineffective and void from the beginning and at all times thereafter; Second, adjudging and decreeing that contract has been terminated, and that same is not now binding upon the parties thereto, and for title and possession of said check— for costs of suit, and for such other and further relief to which plaintiff may be entitled, either in law or in equity."

It is thus clear...