Hall v. Saunders

• Decision Date: 15 March 1929
• Docket Number: (No. 3648.)
• Citation: 15 S.W.2d 717
• Parties: HALL v. SAUNDERS.
• Court: Texas Court of Appeals

Page 717

15 S.W.2d 717

HALL v. SAUNDERS.

(No. 3648.)

Court of Civil Appeals of Texas. Texarkana.

March 15, 1929.

Rehearing Denied April 4, 1929.

Appeal from District Court, Fannin County; Geo. P. Blackburn, Judge.

Action by J. C. Saunders against Vernor Hall and others. From a judgment overruling his plea of privilege, defendant Hall appeals. Affirmed.

Carter & Berwald, of Dallas, for appellant.

Cunningham & Lipscomb, of Bonham, for appellee.

HODGES, J.

This appeal is from an order of the district court overruling appellant's plea of privilege. The record before us shows the following facts: On May 21, 1928, F. H. Anderson, a merchant residing and conducting a business in Fannin county, Tex., made an assignment for the benefit of his creditors. He named as assignee the appellant, Vernor Hall, who resided in Dallas county. The property assigned consisted of a stock of goods and some store fixtures, all of the estimated value of $9,500. Hall filed no bond as assignee in Fannin county, and filed none in Dallas county until June 16, 1928. On May 29, 1928, the city of Bonham, claiming to be a creditor of Anderson for the amount of delinquent taxes due, filed an application with the district judge of Fannin county asking that the appellee, J. C. Saunders, be appointed assignee, on the ground that Hall had failed to file the bond required by law in Fannin county. A similar application was made at the same time to the county judge of Fannin county. Upon the same day both of those judges granted the applications, removed Hall, and appointed the appellee, J. C. Saunders, as assignee of the estate of Anderson. Immediately after this appointment Saunders filed his bond in Fannin county, and endeavored to take charge of the stock of goods which had been assigned by Anderson. On the same day, but after the appointment and qualification of Saunders and subsequent to his demand for possession of the stock of goods, the latter was sold by direction of Hall, through an agent, to T. Z. Reynolds, a nonresident who was temporarily in Fannin county. Reynolds took possession of the stock of merchandise, and proceeded to sell it at retail in the city of Bonham. This suit was thereafter filed by Saunders, as assignee under appointment of the district and county judges of Fannin county, against Hall and Reynolds, for the conversion of the merchandise and store fixtures. Anderson was made a party defendant in the suit, for the purpose of recovering the original instrument of assignment. Hall filed his plea of privilege, claiming the right to be sued in Dallas county, the place of his residence. Saunders filed a controverting affidavit, in which he alleged three grounds for sustaining the venue in Fannin county. The first is that Anderson, a resident of Fannin county, is a party defendant. The second, that Reynolds, a nonresident of the state, is a party defendant and appellant Hall is also a necessary party defendant. The third is that the goods were converted in Fannin county, and suit might be brought in that county under subdivision 9 of article 1995.

We have concluded that the venue in Fannin county can be sustained only upon the last ground mentioned. The record shows that there were no legal grounds for making Anderson a party to the suit. It further shows that Hall was not a necessary party defendant in a suit against Reynolds for conversion. A suit might have been maintained against either one without the necessity of joining the other.

It is now generally held that the unlawful conversion of personal property is a trespass within the meaning of subdivision 9 of article 1995 of the present Revised Civil Statutes. Littlefield State Bank v. Moore (Tex. Civ. App.) 257 S. W. 1007; Bank of Carbon v. Coxe Mercantile Co. (Tex. Civ App.) 241 S. W. 602; Focke v. Blum, 82 Tex. 436, 17 S. W. 770; Perry v. Stephens, 77 Tex. 246, 13 S. W. 984; Willis v. Hudson, 72 Tex. 598, 10 S. W. 713.

The appellant contends that both the pleadings and the evidence show that there was no conversion of the property by Hall. That contention is based upon the proposition that Hall was not required by law to file his bond in Fannin county, and that he could not be removed or superseded by another appointee except by the order of a judge of Dallas county, where Hall resided. Both parties rely upon the provisions of article 266, Revised Civil Statutes, which is as follows: "Every such assignee shall be a resident of this state and of the county in which the assignor resides, or in which his principal business was conducted, and he shall forthwith after the execution and delivery of the assignment, cause the same to be recorded in the county of such assignee's residence and in every county in which there is any real property conveyed to him by such assignment; and shall execute a bond with sureties to be approved by either the judge of the county or district court in the county of residence of said assignee, in such sum as may be fixed by said judge, conditioned that he will faithfully...