Ketelsen & Degetau v. Pratt Bros. & Seay.

• Decision Date: 20 March 1907
• Citation: 100 S.W. 1172
• Parties: KETELSEN & DEGETAU v. PRATT BROS. & SEAY.
• Court: Texas Court of Appeals

100 S.W. 1172

KETELSEN & DEGETAU v. PRATT BROS. & SEAY.

Court of Civil Appeals of Texas.

March 20, 1907.

Rehearing Denied April 10, 1907.

Appeal from District Court, El Paso County; J. R. Harper, Judge.

Suit by Ketelsen & Degetau against Pratt Bros. & Seay. From a decree in favor of defendants, plaintiffs appeal. Reversed and remanded.

Patterson, Buckler & Woodson, for appellants. Turney & Burges and S. P. Weisiger, for appellees.

JAMES, C. J.

This is a suit to enjoin the sale of realty in El Paso, Tex., which had been levied on by the sheriff of El Paso county under an execution issued out of the county court of Taylor county, Tex., as in favor of appellees against "Ketelsen & Degetau." The temporary writ of injunction issued by the clerk was by its terms made returnable to the district court of El Paso county from which it issued, and was so returned. Upon final hearing the matter was disposed of by a plea and also a demurrer, both based on the want of jurisdiction as disclosed by the petition, the contention, which the court sustained, being that the county court of Taylor county and not the court in El Paso county had jurisdiction to hear and determine the grounds upon which the injunction was asked.

The grounds of the petition will be briefly stated. That on October 22, 1897, Pratt Bros. & Seay brought an action upon a contract in the county court of Taylor county against Ketelsen & Degetau, alleging the latter to be a firm composed of E. Ketelsen, Max Weber, and B. Degetau, upon a claim for $741.05, praying judgment against said Ketelsen & Degetau. That citation was had on Weber, but no service of any kind on Ketelsen or Degetau. That E. Ketelsen, Max Weber, and B. Degetau on February 3, 1898, filed a plea in abatement alleging that "said court had no jurisdiction to hear and determine said cause, because neither E. Ketelsen, Max Weber, nor B. Degetau resides in the county of Taylor, Tex. That neither of them resided there when said suit was instituted in the county court of said Taylor county, nor when the said citation was executed in said cause, by the delivery of a copy of same to Max Weber as aforesaid. That said Max Weber was at the time said suit was brought and when said plea in abatement was filed a resident citizen of the county of El Paso and state of Texas. That B. Degetau resided in and was a citizen of Neinstedten, Germany, and that E. Ketelsen resided in and was a citizen of Hamburg, Germany, and they were so residing when said suit was brought. That neither of said members of said firm of Ketelsen & Degetau were citizens of Taylor county, Tex., when said suit was brought, nor when said plea in abatement was filed. That neither of the members of said firm of Ketelsen & Degetau is a transient person, and was not when said suit was brought. That the firm of Ketelsen & Degetau did not contract in writing with the plaintiffs, Pratt Bros. & Seay, to perform any obligation in Taylor county, Tex., or in any other county in the state of Texas. That the foundation of the plaintiffs' suit was not a crime or offense, or a trespass, for which a civil action in damages may lie, so as to entitle the plaintiffs, Pratt Bros. & Seay, to sue the firm of Ketelsen & Degetau in Taylor county, Tex. That the said Max Weber did not reside in Juarez, state of Chihuahua, republic of Mexico, and did not when said suit was brought, and was not when said plea in abatement was filed a citizen of Juarez, Mexico, but as before alleged he was when said suit was brought and when said plea in abatement was filed a citizen and resident of the county of El Paso in the state of Texas. That there was no fact or facts connected with the plaintiffs' said cause of action that did or would entitle them in any way to maintain said suit in the courts of Taylor county, Tex., or that brought said cause within any of the exceptions of chapter 4, tit. 30, of the revised statutes of 1895 of the state of Texas, and these plaintiffs now state that said plea in abatement was duly signed and sworn to by the defendant, Max Weber. That on February 26, 1898, an order was entered on said plea as follows: "The plea in abatement came on on this the 26th day of February, 1898, for trial, and same was submitted to the court, and after hearing the evidence the court is of opinion that said plea in so far as the same relates to Max Weber be and the same is hereby sustained. It is therefore ordered, adjudged, and decreed that said cause as to Max Weber be and is hereby dismissed, and that he recover of and from the plaintiffs all costs incurred in this behalf by him." That on same day Pratt Bros. & Seay, for the purpose of defeating if possible said plea in abatement, filed the following paper styled "Supplemental Petition": "Now come plaintiffs and say that they were mistaken in alleging that Max Weber was a member of the firm of Ketelsen & Degetau, and ask to dismiss as to said Max Weber." That therefore, on same day, the court without any service whatever on E. Ketelsen and B. Degetau proceeded and rendered judgment in favor of Pratt Bros. & Seay against Ketelsen & Degetau for the sum of $741.43, together with all the costs of...