Kendall v. Hackworth

• Citation: 18 S.W. 104
• Parties: KENDALL v. HACKWORTH.<SMALL><SUP>1</SUP></SMALL>
• Decision Date: 23 June 1885
• Court: Supreme Court of Texas

18 S.W. 104

KENDALL v. HACKWORTH.¹

Supreme Court of Texas.

June 23, 1885.

Commissioners' decision. Appeal from district court, Harris county; JAMES MASTERSON, Judge.

S. A. Hackworth sued William E. Kendall in the district court of Ft. Bend county for an accounting and settlement of partnership, and for the partition of certain land situated in Ft. Bend county, alleged to be partnership property. Defendant was a resident of Harris county, and filed a plea in abatement of the suit, in so far as it sought any other relief than the establishment of plaintiff's interest in the land situated in Ft. Bend. The suit was not abated, but an auditor was appointed to take and state the account between the parties. The auditor reported that defendant had $12,453.13 of partnership money in his hands, half of which was due plaintiff. Defendant filed certain written exceptions and objections to this report. Plaintiff then amended his petition, and prayed for a money judgment against defendant for such sum as should be found due on the accounting, in the event that it should be found that plaintiff had no interest in the land in Ft. Bend. Defendant filed an amended answer, to which his exceptions to the auditor's report were attached and made a part. After this the venue of the case was changed to Harris county, where it was tried. After the case was removed to Harris county, defendant filed a second amended answer, which made no reference to the exceptions and objections to the auditor's report. Judgment was rendered quieting defendant's title to the land in question, but against him for $1,389.63. Defendant appeals. Reversed.

Brady & Ring, for appellant. Hutcheson & Carrington, for appellee.

WALKER, P. J.

The suit having been brought in Ft. Bend county, where jurisdiction rightfully belonged under the case stated in plaintiff's original petition, that court would retain its jurisdiction over the case in respect to any supplemental cause of action subsequently ingrafted on the original cause of action by an amended petition, unless such amendment set up such additional cause of action fraudulently to deprive the defendant of his personal privilege to litigate it in the county of his residence. To hold otherwise would be to attach a condition to the right to amend the cause of action, as originally declared on, incompatible with the spirit of the law regulating amendments, and which the statute has not prescribed. If a party has been properly sued in a county other than that of his domicile, the subsequent proceedings in respect to the matters that may be litigated in it under amendments varying the character of the issues to be tried, and what subject-matters may be added by way of amendment for determination in that suit, are to be determined, not on a question of privilege as to where such matters may be tried, but according to the rules of law, which determine what may be added by way of amendment to the subject of litigation as it was presented in the original petition. The general policy of the law is to avoid a multiplicity of suits; and it favors the adjustment of the rights of the parties in one suit if it can be done consistently with those rules of law which for their own reasons fix a limit and a boundary to the liberal rule which thus encourages the settlement of controversies in one suit where it can be done, so as not to drive a party to another suit, and before another forum, to adjust that which may be settled in that jurisdiction before which the parties already are. The right given by the statute to be sued in certain classes of actions in the county of his residence is to be construed relatively to and with other statutes and rules of pleading and procedure, and when the suit is brought in a proper county, although it be not in that of the defendant's residence, in the absence of fraud, ordinarily, the suit will proceed subject to the rules of law common to all other cases, unaffected by a question of venue. This cause having been, by consent of parties, removed, by change of venue, to Harris county, where the defendant resides, and, his plea in abatement and exceptions to the jurisdiction having been filed after the cause was pending in the district court of Harris county, it requires a nice discrimination, we think, to perceive the merit of defendant's objection. If his privilege was to be sued in Harris county, the change of venue to that county had the effect to accord to him all the benefits contemplated by the privilege the statute accords to him; and in such case the law, which does nothing vainly, would not, while the cause was pending in Harris county, dismiss it, in order that it might be brought anew in that county. The error assigned, it will be noticed, does not call in question the propriety of the court's allowing the plaintiff to set up, by way of amendment, those matters concerning which the defendant urges he was entitled to be sued in the county of his residence. We are of opinion that, if the subject was otherwise proper as an amendment, the defendant cannot successfully maintain the proposition that it must be rejected from the suit because of his residence elsewhere than in Ft. Bend county; that his privilege to be sued in the county of his residence has no proper application to the case.

We think the court erred in refusing to permit defendant to introduce evidence for the purpose of showing the mistakes in the report of the auditor that were designated in the...