Hickman v. Swain

• Decision Date: 03 June 1914
• Docket Number: (No. 2372.)
• Citation: 167 S.W. 209
• Parties: HICKMAN v. SWAIN et al.
• Court: Texas Supreme Court

Page 209

167 S.W. 209

HICKMAN v. SWAIN et al.

(No. 2372.)

Supreme Court of Texas.

June 3, 1914.

Certified Question from Court of Civil Appeals of Second Supreme Judicial District.

Action by C. W. Hickman against M. F. Swain, and others. On certified questions from the Court of Civil Appeals.

Wm. J. Berne, of Ft. Worth, for appellant. D. J. Brookreson, of Benjamin, and B. K. Goree, of Ft. Worth, for appellees.

BROWN, C. J.

The honorable Court of Civil Appeals of the Second Supreme Judicial District has certified to this court the following statement and questions:

"Appellant, C. W. Hickman, alleged to reside in Tippecanoe county, Ind., instituted this suit in the district court of Tarrant county, Tex., against M. F. Swain and nine other persons, all of whom were alleged to reside in Knox county, Tex., upon a promissory note executed by the defendants named on March 31, 1908, for the sum of $1,500, and payable to the order of J. Crouch & Son at the Farmers' State Bank of Knox City, Tex., on or before October 1, 1910. It was alleged that J. Crouch & Son had indorsed said note in blank to the plaintiff, whereupon `each defendant' became liable and promised to pay the amount specified in the note. It was further alleged that J. Crouch & Son was a firm composed of Jeptha Crouch and George Crouch, who both resided in the state of Indiana, and who were consequently not made parties to the suit by the petition. All defendants named in the petition were either cited or answered as hereinafter stated, save the defendant J. A. Wood, who does not appear to have been cited or to have joined in an answer of any kind. Of the defendants named in the plaintiff's petition, appellee M. F. Swain and seven others joined in a plea of privilege to be sued in Knox county. The plea was duly verified, filed, and presented, as hereinafter stated. In addition to this plea of privilege, these defendants at the same time filed an answer in which C. C. Tucker and R. E. Butler, who were not parties to the plea of privilege, joined. The answer, in substance, alleged that the payees of the note, J. Crouch & Son, and J. A. Wood, one of the signers thereto, had, for the purpose of deceiving and defrauding, conspired together in fraudulently representing the value and quality of a certain horse owned by J. Crouch & Son which defendants, by the means stated, had been induced to purchase, and for which they gave the note sued upon and another of like amount, which they had theretofore paid to J. Crouch & Son. The prayer was, as against the plaintiff, Hickman, for a cancellation of the note sued upon, it being alleged that he was not a bona fide owner and holder of the note, or, if so, a purchaser after its maturity, and for judgment `against said J. Crouch & Son and said J. A. Wood, jointly and severally, or against such of them as are brought within the jurisdiction of the court,' for the sum alleged to have been paid to J. Crouch & Son on the note previously paid. It should, perhaps, be further stated in this connection that the note as sued upon had, among other indorsements, the following: `Received of J. A. Wood one hundred and fifty dol. $150.00, this being his pro rata of the within note, this April 1st, 1908. J. Crouch & Son.'

"The trial court in due order heard the plea of privilege, and, having found, as the evidence justifies, that its material allegations were true, and that the answer to the merits had been filed subject to the action of the court upon the plea of privilege, sustained the plea of privilege, and, as to all parties, ordered the cause transferred to the district court of Knox county, Tex., and from this order the plaintiff in the suit prosecutes an appeal, which is now pending before us.

"In this...