Hopkins v. First Nat. Bank at Brownsville
| Citation | 551 S.W.2d 343 |
| Decision Date | 18 May 1977 |
| Docket Number | No. B-6646,B-6646 |
| Parties | 21 UCC Rep.Serv. 1124 Burtram C. HOPKINS, II, Petitioner, v. FIRST NATIONAL BANK AT BROWNSVILLE, Texas, Respondent. |
| Court | Supreme Court of Texas |
Carrington, Coleman, Sloman, Johnson & Blumenthal, Danny Miller, Dallas, for petitioner.
C. Fount Ray, Brownsville, for respondent.
This is a venue case. The court of civil appeals affirmed the trial court order overruling Hopkins' plea of privilege on the ground that venue was sustainable in the county of suit under Article 1995 subdivision 5(a). 1 546 S.W.2d 84. We refuse the application for writ of error, no reversible error.
We shall briefly recite the facts in order to bring into focus the question presented. A more complete statement of the facts may be found in the opinion of the court of civil appeals.
Alleging that a note held by it was past due and had not been paid, the First National Bank at Brownsville sued the corporate maker for payment. The bank also sued Hopkins and others on their contract of guaranty. The note sued on had been executed in renewal and extension of the balance due on a note made approximately nine months previously. The guaranty had been executed at the same time as the previous note, and provided that the guarantors unconditionally guaranteed the payment of the note and of all other obligations of the debtor to the bank then or thereafter existing. The guaranty permitted the bank to alter, exchange, or renew any of the obligations guaranteed; and it stated that it was "a continuing, absolute and unconditional guaranty."
The bank's suit against Hopkins and the others was brought in Cameron County, Texas, the county where the note expressly was made payable. Hopkins duly filed his plea of privilege to be sued in the county of his domicile. The bank alleged Article 1995 subdivision 5(a) as a proper basis for venue in Cameron County. That subdivision provides:
5. Contract in writing. (a) Subject to the provisions of Subsection (b), if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile. (Emphasis supplied).
Hopkins argued before the court of civil appeals that this subdivision did not apply because the guaranty contract did not expressly name Cameron County as the place of performance. The court rejected his argument, however, and held that subdivision applicable. 546 S.W.2d 84. In so holding, the court relied on Laukhuf v. Associates Discount Corp., 443 S.W.2d 725 (Tex.Civ.App.1969, no writ); Carter v. Texas State Bank of Jacksonville, 189 S.W.2d 782 (Tex.Civ.App.1945, no writ); and Cullum v. Commercial Credit Co., 134 S.W.2d 822 (Tex.Civ.App.1939, no writ). Those cases reason that because an absolute and unconditional guaranty of a note binds the guarantor upon all the terms of the note, the guaranty contract includes the venue provisions of the note for subdivision 5 purposes.
Hopkins alleges this Court has jurisdiction under Article 1728 subdivision 2 because the holding of the court of civil appeals here conflicts with the decision in Smith v. First National Bank in Groveton, 146 S.W.2d 270 (Tex.Civ.App.1940, no writ). We believe the Smith case and this one are "so far upon the same state of facts that the decision of one case is necessarily conclusive of the decision in the other." Garitty v. Rainey, 112 Tex. 369, 374, 247 S.W. 825, 827 (1923). Further, the decisions of the courts of civil appeals here and in Smith do conflict. The Smith court held that the notes and the guaranty sued upon were separate and distinct undertakings; therefore, the notes' provisions for performance in a certain county could not be used to establish venue in that county under subdivision 5 in the suit against the guarantor. The Smith holding is such that if it were made by the court of civil appeals that decided this case, it would operate to overrule the decision below. John Farrell Lumber Co. v. Wood, 400 S.W.2d 307 (Tex.1966). We therefore have jurisdiction to consider the merits of Hopkins' application for writ of error.
We have considered the merits and have concluded that the judgment of the court of civil appeals below was correct....
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