Kelly v. Lobit, 10994.
| Citation | 142 S.W.2d 301 |
| Decision Date | 30 May 1940 |
| Docket Number | No. 10994.,10994. |
| Parties | KELLY v. LOBIT et al. |
| Court | Court of Appeals of Texas |
Appeal from District Court, Harris County; Roy F. Campbell, Judge.
Action by Myrtle E. Lobit Kelly and others against Louis Lobit and another for accounting of sums due plaintiffs from the estate of Joseph Lobit, Sr., deceased, in which Donald S. Kelly, after the death of named plaintiff, intervened as administrator of her estate and guardian of the estate of Joseph Lobit, Jr., a minor, and was substituted for her as plaintiff in such capacities, and defendants filed pleas of privilege. From an order sustaining the pleas and directing transfer of cause to another county, the substituted plaintiff appeals.
Reversed and remanded, with instructions.
A. D. Dyess and Franklin & Blankenbecker, both of Houston, for appellant.
Albert J. DeLange, Robert P. Beman, Jr., and Emory T. Carl, all of Houston, for appellees.
This is an appeal from an order sustaining a ple of privilege in an action originally brought in the district court of Harris County by appellants, Myrtle E. Lobit Kelly et al., against appellees, Louis Lobit and Paul Lobit, to compel an accounting and to recover judgment for whatever sum there might be found to be due appellants.
After the institution of the suit Mrs. Kelly died and her husband, Donald S. Kelly, intervened as administrator of her estate and as guardian of the estate of Joseph Lobit, Jr., a minor, and was substituted in said capacities in place of the original plaintiff.
Appellee Paul Lobit filed his plea of privilege to be sued in Galveston County. Subject to his plea of privilege, Louis Lobit and Paul Lobit filed their original answer. Later appellee Louis Lobit filed what he characterized as an amended plea of privilege, in which he for the first time prayed that the suit be transferred to Galveston County.
In due time Myrtle E. Lobit Kelly, individually and as guardian, filed her controverting affidavit in which she claimed venue in Harris County under subdivisions 4 and 29a of Art. 1995, Revised Statutes of 1925, Vernon's Ann.Civ.St. art. 1995, subds. 4, 29a.
Upon hearing before the court an order was entered sustaining the pleas of privilege and directing the transfer of the cause to Galveston County. Appellant appeals from this order.
It was agreed that Louis Lobit was a resident of Harris County and that Paul Lobit was a resident of Galveston County.
The record shows that Joseph Lobit, Sr., died in 1912, leaving a will, by the terms of which Louis Lobit and Paul Lobit were named independent executors without bond. The will was admitted to probate in Galveston County and they duly qualified as such executors. No inventory, appraisement, or list of claims has been filed by them as executors in the probate court and they have filed no resignation as such executors in the probate court. After administering the affairs of said estate for approximately three years, appellees filed what they termed a resignation as executors of said estate in the deed records of Galveston County. Thereafter both Louis and Paul Lobit continued to act in certain matters pertaining to said estate, Louis Lobit under a power of attorney from his sister, and Paul Lobit under a power of attorney from his brother, Joseph Lobit. The record shows that there are numerous tracts of land in various counties in Texas belonging to said estate which have not been distributed among the beneficiaries under said will.
Joseph Lobit, the brother of Louis and Paul Lobit, and the husband of Myrtle E. Lobit Kelly, died in 1933. Myrtle E. Lobit Kelly died on December 15, 1938.
The only question presented in this appeal is whether the venue of this action was properly laid in Harris County.
Appellee Paul Lobit, in his plea of privilege, prays "that the above suit be transferred to the district court of Galveston County, Texas, and for such other orders herein as may be necessary and proper for said purpose."
No proper plea of privilege to be sued in Galveston County was filed by Louis Lobit.
In his original petition appellant prays that appellees be required to prepare and file a complete inventory, appraisement, and list of claims of the estate of their father, Joseph Lobit, deceased, which came into their hands as independent executors; and to show the disposition, if any, made by them of said property and the...
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...the defendants in order to prevent a multiplicity of suits. Rudco Oil & Gas Co. v. Ogden, Tex.Civ.App., 167 S.W.2d 586; Kelly v. Lobit, Tex.Civ. App., 142 S.W.2d 301; Tunstill v. Scott, Tex.Civ.App., 120 S.W.2d 274; Caprito v. Weaver, Tex.Civ.App., 77 S.W.2d 595; Padgett v. Lake Cisco Amuse......
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