International Harvester Co. v. Stedman

• Decision Date: 20 May 1959
• Docket Number: No. A-7171,A-7171
• Citation: 159 Tex. 593,324 S.W.2d 543
• Parties: INTERNATIONAL HARVESTER COMPANY et al., Petitioners, v. S. L. STEDMAN et al., Respondents.
• Court: Texas Supreme Court

Page 543

324 S.W.2d 543

159 Tex. 593

INTERNATIONAL HARVESTER COMPANY et al., Petitioners, v. S. L. STEDMAN et al., Respondents.

No. A-7171.

Supreme Court of Texas.

May 20, 1959.

Rehearing Denied June 17, 1959.

Thomas J. Hightower, Liberty, Bryan, Suhr & Bering, James P. Bailey, Houston, for petitioners.

Hill, Lowry, Lee & Koster, Houston, for respondents.

WALKER, Justice.

The controlling question in this venue case as it reached the Court of Civil Appeals was whether the trial court, after sustaining the plea of privilege of one defendant, erred in refusing to transfer the entire cause to county of residence of such defendant. S. L. Stedman and James A. Miller, respondents, filed suit in Liberty County against International Harvester Co., L. M. Fawcett and L. L. Karli, petitioners, to recover damages for false representations and the breach of warranties, covenants and agreements alleged to have been made by petitioners in connection with the sale of a hay baler to respondents. International Harvester and Fawcett, the latter of whom is alleged to reside in Liberty County, answered on the merits, but Karli filed a plea of privilege to be sued in Angelina County, where he resides. Respondents did not controvert the plea of privilege but filed their written consent for the case to be transferred to Angelina County. International Harvester and Fawcett insisted that the action in so far as it concerns them should remain in Liberty County. The trial court ordered the case transferred only as to Karli, but the Court of Civil Appeals reversed and directed that the entire cause be transferred to Angelina County. 319 S.W.2d 791.

When the application for writ of error was granted, it was our tentative view that the trial court had entered a proper order and that the case fell within the jurisdiction of the Supreme Court. Upon further consideration, however, it is our opinion that we were mistaken in the latter conclusion, and the application for writ of error will now be dismissed for want of jurisdiction.

Under the provisions of Articles 1728 and 1821, Vernon's Ann.Tex.Civ.Stat., our appellate jurisdiction over interlocutory orders such as the one involved here is limited to cases in which the judges of the Court of Civil Appeals disagree upon a question of law material to the decision, or in which the holding of the Court of Civil Appeals on a question of law conflicts with a prior decision of another Court of Civil Appeals or of this Court. See State v. Wynn, Tex., 301 S.W.2d 76, and authorities cited therein. The judges of the Court of Civil Appeals did not disagree in this case, and our jurisdiction, if it exists at all, must rest upon conflict as provided in Subdivision 2 of Article 1728.

Petitioners say that the holding of the Court of Civil Appeals in this case conflicts with the following decisions: Comer v. Brown, Tex.Com.App., 285 S.W. 307; Tunstill v. Scott, 138 Tex. 425, 160 S.W.2d 65; Kelley v. Central Texas Bus Lines, Tex.Civ.App., 252 S.W.2d 62 (no writ); Standard Accident Ins. Co. v. Pennsylvania Car Co., Tex.Civ.App., 15 S.W.2d 1081 (no writ); Winter v. Hamilton, Tex.Civ.App., 214 S.W.2d 330 (no writ); and Johnson v. First National Bank of Brenham, Tex.Civ.App., 42 S.W.2d 870 (no writ). Our opinion in the Tunstill case points out that the established rule as to transferring a cause when the plea of privilege of one of several defendants is sustained was stated in Johnson v. First National Bank of Brenham, supra (42 S.W.2d 871), as follows:

'The rule seems to be that, where one of several defendants files a plea of privilege to be sued in the county of his residence, and the plea is sustained, if the cause of action is a joint action growing out of joint liability of all the defendants, the suit must be transferred as an entirety to the county of the residence of the defendant whose plea is sustained. On the other hand, if the cause of action against the several defendants is severable, or joint and several, the court should retain jurisdiction over the action in so far as it concerns the defendants whose pleas of privilege have not been sustained, and should transfer the suit in so far as it concerns the defendant whose plea is sustained.'

In holding that the present case must be transferred as an entirety to Angelina County, the Court of Civil Appeals reasoned: (1) that if the allegations of the petition are sustained, respondents will be entitled to a joint judgment against International Harvester and Fawcett or against Karli and Fawcett, and that such a judgment cannot be obtained unless the defendants whose liability is established are parties to the proceeding; and (2)...