J. G. Boyd's Good Housekeeping Shops, Inc. v. General Securities Service, Inc., 5150

• Decision Date: 27 July 1972
• Docket Number: No. 5150,5150
• Parties: J. G. BOYD'S GOOD HOUSEKEEPING SHOPS, INC., Appellant, v. GENERAL SECURITIES SERVICE, INC., and Lectro Systems, Inc., Appellees.
• Court: Texas Court of Appeals

Page 826

483 S.W.2d 826

J. G. BOYD'S GOOD HOUSEKEEPING SHOPS, INC., Appellant, v. GENERAL SECURITIES SERVICE, INC., and Lectro Systems, Inc., Appellees.

No. 5150.

Court of Civil Appeals of Texas,

Waco.

July 27, 1972.

Henry Stollenwerck, Dallas, for appellant.

Seay, Gwinn, Crawford & Mebus, William C. Strock, Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellees.

HALL, Justice.

Plaintiff-appellant, J. G. Boyd's Good Housekeeping Shops, Inc., filed its original petition on July 14, 1969, alleging a cause of action against General Security Service, Inc. Plaintiff admits that its cause of action arose on January 22, 1969, and that it is controlled by Article 5526, Vernon's Ann.Tex.Civ.St., the two-year statute of limitations.

On March 24, 1970, General Security impleaded appellee, Lectro Systems, Inc., as third-party defendant, seeking indemnity or contribution from Lectro Systems in the event plaintiff should succeed in its lawsuit against General Security.

On April 13, 1971, judgment was rendered dismissing plaintiff's suit against General Security. The judgment recited that it was based upon 'an agreement of settlement in the form of a covenant not to sue' between plaintiff and General Security in which plaintiff 'had reserved rights against any other defendant, including the defendant Lectro Systems, Inc.'; and that it is ordered that 'any cause of action which the plaintiff may have against Lectro Systems, Inc. is specifically preserved under the number and style of this cause,' subject to Lectro Systems' defenses.

Meanwhile, on August 31, 1970, Lectro Systems filed a motion seeking dismissal of General Security's third-party action against it, alleging as grounds therefor that General Security was not licensed to do business in Texas, and that a corporation not licensed to do business in this State may not avail itself of our State Courts in order to seek redress or recovery of an affirmative nature.

On January 25, 1972, Lectro Systems filed its second motion to dismiss, repleading the grounds of its earlier motion for the dismissal of General Security's third-party action. Additionally in the second motion, Lectro Systems asked that it be dismissed completely from the lawsuit for the reasons (1) that the only cause alleged against it was General Security's; and (2) 'plaintiff is now barred by the two-year statute of limitations from alleging any cause of action against' Lectro Systems.

On February 3, 1972, plaintiff filed its first amended original petition in which it pleaded, for the first time, a cause of action against Lectro Systems.

Following a hearing on Lectro Systems' second motion to dismiss, the court held that plaintiff's action against Lectro Systems was barred by limitations, and dismissed plaintiff's action against Lectro Systems; dismissed General Security's action against Lectro Systems; and dismissed Lectro Systems from the lawsuit.

General Security has not appealed. Plaintiff's single point of error is: 'The court erred in holding that limitations had run.' Plaintiff relies upon the provisions of Rule 38, Texas Rules of Civil Procedure, and Article 5539b, Vernon's Ann.Civ.St., to support its contention of error.

Rule 38, which governs third-party practice, provides, in part, that a plaintiff may amend his pleadings to assert against one who has been brought into a suit as a third-party defendant any claim which the plaintiff might have asserted against the third-party defendant had he been joined originally as a defendant by plaintiff.

The portion of article 5539b relied upon by plaintiff is as follows:

'Whenever any pleading is filed by any party to a suit embracing any cause of action, cross-action,...