Jackson v. First Nat. Bank of San Angelo

• Decision Date: 18 March 1931
• Docket Number: No. 7555.,7555.
• Parties: JACKSON et al. v. FIRST NAT. BANK OF SAN ANGELO.
• Court: Texas Court of Appeals

Page 356

37 S.W.2d 356

JACKSON et al. v. FIRST NAT. BANK OF SAN ANGELO.

No. 7555.

Court of Civil Appeals of Texas. Austin.

March 18, 1931.

Rehearing Denied April 8, 1931.

Appeal from District Court, Tom Green County; J. P. Hill, Judge.

Action by the First National Bank of San Angelo against Roy Jackson, A. M. Peeler, and others. From an order overruling the pleas of privilege of defendants named, they appeal.

Affirmed.

Collins, Jackson & Snodgrass, of San Angelo, and Earl D. Scott, of Jourdanton, for appellants.

Upton & Upton, of San Angelo, for appellee.

BLAIR, J.

This appeal is from an order overruling the pleas of privilege in statutory form of appellants, A. M. Peeler and Roy Jackson, to be sued in Webb county, the county of their residence or domicile. Appellee, the First National Bank of San Angelo, Tex., filed the suit in the district court of Tom Green county, alleging that the defendant Howard P. Miller, was a resident of San Antonio, Bexar county; that defendant Clay Mann was a resident of Texas, but now located in Oklahoma City, Okl.; that defendant A. M. Peeler was a resident of Bexar and Atascosa counties; and that defendant Roy Jackson was a resident of Webb county; that Howard P. Miller executed to appellee his note for $10,000, dated October 10, 1929, and payable to the order of appellee at San Angelo, Tex., 180 days after date, and that same was past due and unpaid; that, at the time of the execution of the note, Miller executed his chattel mortgage upon certain goats, described by age and brand, upon certain cows and bulls, described by age and brand, and upon 412 head of steers, one and two years old, and branded Q on left loin or hip; that, prior to the execution of the note and mortgage, Peeler and Jackson sold to Miller the 412 head of steers described, and agreed to deliver the same free of any liens; that Miller and Mann negotiated with appellee bank for the loan and agreed to execute the note and mortgage, and appellee agreed to make the loan subject to an inspection of the live stock; that, just prior to the date of the note and mortgage, appellee sent Will C. Jones to inspect the live stock; that he inquired of appellant Roy Jackson as to the whereabouts of Howard P. Miller's steers, and informed him that he wished to inspect them for the purpose of making a loan; that Jackson assisted him in making the inspection, pointing out from other cattle the cattle that belonged to Miller, and that Jackson never at any time asserted any claim, right, title, or interest in the cattle or of their possession during the inspection of them; that the said Jones made inquiry of appellant A. M. Peeler as to the number, kind, and location of the cattle owned by Miller; that Peeler told him that these 412 head of steers belonged to Miller, and that Peeler never claimed at any time that these steers belonged to him or to Jackson, or to both of them; and that, relying upon these representations of Peeler and Jackson, Jones reported a favorable inspection of the cattle, and appellee, acting upon this information, made the loan in suit. Appellee also alleged that Peeler and Jackson were partners in the cattle; that, if not partners, they were jointly interested in certain ranch enterprises; that the said 412 steers were in their possession; and that they were claiming some right, title, or interest in same, but that, whatever their claim be, it was inferior to the claim and the mortgage lien of appellee; and appellee prayed for judgment against Miller on the note and for foreclosure of the chattel mortgage as against all defendants.

In addition to alleging the above facts in its controverting plea to the pleas of privilege, appellee also alleged, as follows: "That at the date of the execution of said note and said mortgage the defendant, Howard P. Miller, was the owner of said live stock and had a right to execute a valid mortgage and lien upon same to secure the payment of said note; and that at the time of the institution of this suit, and the time of the filing of the pleas of privilege herein, and at this time, said defendants, Jackson and Peeler, are asserting some right, title or interest in and to the live stock, the nature of which and the extent of which is unknown to plaintiff, but whatever interest they have or assert is inferior to the claim and lien of the plaintiff herein to said live stock."

On the trial of the pleas of privilege, the trial court sustained venue in Tom Green county under subdivision 5 of article 1995, which provides that, "if a person has contracted in writing to perform an obligation in a particular county, suit may be brought * * * in such county" on the obligation; and under subdivision 29a, which provides that, "whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto."

This appeal is predicated upon the following sole proposition: "Since none of the defendants reside in Tom Green County, Texas, and since the alleged venue in Tom Green County must be...