Logan v. Ludwick

• Decision Date: 06 February 1926
• Docket Number: (No. 11386.)
• Citation: 283 S.W. 548
• Parties: LOGAN et al. v. LUDWICK.
• Court: Texas Court of Appeals

283 S.W. 548

LOGAN et al. v. LUDWICK.

(No. 11386.)

Court of Civil Appeals of Texas. Fort Worth.

February 6, 1926.

Rehearing Denied March 20, 1926.

Appeal from District Court, Denton County; C. R. Pearman, Judge.

Suit by Frank M. Ludwick against Charles E. Logan and others. From a judgment overruling their pleas of privilege, defendants Logan appeal. Affirmed.

William H. Flippen, John T. Gano, and John W. Miller, all of Dallas, for appellants.

Geo. M. Hopkins, Brent C. Jackson, and Walter A. Koons, all of Denton, for appellee.

CONNER, C. J.

This suit was instituted by the appellee, Frank M. Ludwick, in the district court of Denton county, on the 22d day of July, 1924, against Chas. E. Logan, Deane Logan, and W. L. Brock, and the Ætna Casualty & Surety Company, to recover upon a promissory note alleged to have been executed by Chas. E. Logan as a part of the purchase price for "1 high pressure combination oiler, tar and asphalt spreader, complete with all appurtenances mounted upon Kelly-Springfield chassis No. 50101." The note was in the sum of $4,000, and to secure which the plaintiff sought to foreclose a lien upon the property above described. The defendant Brock was made a party defendant upon allegations that he was a resident of Denton county, and that he was "holding the personal property hereinbefore described under some sort of lease or contract with the defendant Chas. E. Logan, and the plaintiff avers that whatever right of claim the defendant W. L. Brock has in and to said personal property is inferior and second to the lien owned by plaintiff."

The allegations upon which the Ætna Casualty & Surety Company was made a party need not be noticed, inasmuch as that company was later discharged by the court, and plaintiff has made no complaint of that action.

Chas. E. Logan and Deane Logan were alleged to be transient persons. On July 25, 1924, the defendant Brock filed a disclaimer, alleging that —

"He did not have, at the time this suit was filed any such right, title, or interest in the property described in plaintiff's petition, nor has he now, and that neither at said time nor now does he make any claim or demand regarding the same; that such facts were known to plaintiff's attorney at the time this suit was filed or by the use of reasonable diligence would have been known to said attorneys."

On October 27, 1924, Chas. E. Logan and Deane Logan separately filed pleas of privilege to be sued in Dallas county, where it was alleged these parties were residents at the time the suit was instituted, and at the time of the filing of the pleas. It was alleged that none of the exceptions to exclusive venue in the county of one's residence mentioned in article 1830 or article 2308, V. S. Statutes, existed, and that the suit did not come within any of the exceptions provided by law in authorizing this suit to be brought or maintained in the county of Denton. On November 1, 1924, the appellee filed a controverting affidavit, in which it was alleged that the cause came within the exception to the general law of venue in the county of one's residence, contained in subdivision 4 of article 1830, V. S. Statutes, which provides that, where there are two or more defendants residing in different counties, the suit may be brought in any county where any one of the defendants reside.

It was further alleged that the cause came within subdivision 12 of article 1830, which provides that, where the suit is for the foreclosure of a mortgage or other lien it may be brought in the county in which the property subject to the lien is situated, and it was alleged that the property upon which the plaintiff sought to foreclose his lien was situated in Denton county at the time the suit was instituted, and was in the possession of W. L. Brock, the defendant who resided in Denton county. The plaintiff, also having obtained leave of the court, filed his first amended original petition, in which for the first time he alleged that the personal property upon which he sought to foreclose his lien was "situated in Denton county."

Upon the state of the pleadings as thus indicated the court, on the 15th day of November, 1924, proceeded to hear the disclaimer of the defendant Brock and the plea in abatement of the Ætna Casualty & Surety Company and the pleas of privilege of the defendants Chas. E. Logan and Deane Logan. Upon the conclusion of the hearing the court sustained the disclaimer of the defendant Brock and the plea in abatement of the insurance company, and these two parties were discharged with their costs. The pleas of privilege, however, by the Logans, were overruled, to which ruling these defendants excepted and have duly appealed from that judgment.

We have before us a statement of the facts heard by the trial court, and, as we view the record, the question presented for our determination is whether the judgment of the court can be sustained on the theory that plaintiffs' case has been brought within the purview of either exception 4 or exception 12 to article 1830, V. S. Statutes, under which the trial below proceeded.

Article 1830 reads:

"No person who is an inhabitant of this state shall be sued out of the county in which he has his domicile, except in the following cases, to wit."

Exception 4, so far as pertinent, reads:

"Where there are two or more defendants residing in different counties, in which case the suit may be brought in any county where any one of the defendants reside."

Exception 12 reads:

"Where the suit is for the foreclosure of a mortgage or other lien, in which case suit may be brought in the county in which the property subject to such lien, or a portion thereof, may be situated."

The evidence shows that the defendant Brock had a contract with the city of Denton, in Denton county, to construct or repair certain streets of the city; that, not having the machinery and equipment necessary to do the work, he, on the 26th day of March, 1924, entered into a contract with Deane Logan, under the terms of which the original contract with the city was assigned to Logan, but the machinery and equipment in question was delivered to Brock "to be handled" as if same were his own property," and to receive a fee, commission, or profit of 1 cent per gallon, plus a salary of $6 per day for each working day for the superintending and directing the application of said oil and asphalt," as provided in the contract with the city. Brock testified to the effect that a few days after the execution of that contract he brought the machinery to Denton, and had it in that city at the time it was sequestered by the plaintiff. He testified:

"After I brought that machine up here I had complete charge of it. I kept it here in storage. I had the right to use that machine just like I would have had had it been my own. I had a right to use that machine until I completed what I had contracted to do in Denton. I think I finished that contract along the latter part of July; think I finished it right about July 26th. I turned it in about the 26th of July."

He further testified that the contract between the city of Denton and himself covered about 1,600 feet of work on South Locust street, and, about the same on North Locust street, and, in addition to this, there were two blocks on West Sycamore street, and he did some work also with the equipment for a Mr. Jagoe. He further testified that he did not know who prepared the disclaimer that he signed; that Deane Logan "brought it to me and asked me to sign it."

Mr. George M. Hopkins, among other things, testified that the machinery in question had been in Denton from some time in May, 1924, until it was levied upon under a writ of sequestration and attachment issued in this case, and it was there at the time it was replevied; that "Mr. W. L. Brock had charge of it at that time, and we made him a defendant to the suit, and he had been using it the day it was levied on."

We think the evidence is fairly susceptible of the construction that, under the terms of the written contract between the defendant Brock and Deane Logan, Brock had such an interest in or right to the possession and use of the machinery and equipment upon which plaintiff sought to foreclose its lien as to make him at least a proper party defendant at the institution of plaintiff's suit on July 22, 1924. The general rule is well established that all persons interested in the object and purpose of the suit or to be affected in any way by the decree or judgment sought to be obtained ought, if known, to be made parties. See Hall v. Hall, 11 Tex. 526, where it is expressly held that subsequent purchasers and mortgagees of personal property who are in possession of the property are necessary parties to an action to foreclose a prior mortgage.

In Carter v. Attoway, 46 Tex. 108, it was held that, in a suit to enforce a vendor's lien, a subsequent vendee, in possession, and claiming under a recorded deed, is a necessary party. Many other illustrations might be given. It is not necessary that there should be an identity of interest. It is sufficient in order to constitute a person a proper or necessary party that he have some enforceable interest in the subject-matter. See Teas v. McDonald, 13 Tex. 349, 65 Am. Dec. 65.

The written contract between Brock and Deane Logan, as interpreted by the testimony of Brock, would seem at least to vest in Brock a right to the use and possession of the property during the continuance and performance of the contract with the city of Denton for street improvements. It will be noted that Brock took possession of the property and began its use about the 24th day of May, 1924, and so continued in possession until July 27, 1924, several days after the plaintiff had instituted his suit. If Brock, at the institution of plaintiff's suit, was a necessary or even a proper party, as we think he was, it would be immaterial that he was permitted to disclaim and be discharged upon the date...