Miller & Miller Auctioneers, Inc. v. Hillcrest State Bank of University Park, 17094

• Decision Date: 21 June 1968
• Docket Number: No. 17094,17094
• Parties: MILLER & MILLER AUCTIONEERS, INC., Appellant, v. HILLCREST STATE BANK OF UNIVERSITY PARK, Appellee. . Dallas
• Court: Texas Court of Appeals

Page 61

430 S.W.2d 61

MILLER & MILLER AUCTIONEERS, INC., Appellant, v. HILLCREST STATE BANK OF UNIVERSITY PARK, Appellee.

No. 17094.

Court of Civil Appeals of Texas.

Dallas.

June 21, 1968.

Rufus S. Garrett, Jr., of Garrett & Garrett, Ft. Worth, for appellant.

B. B. Bruner, W. R. Sessions, Dallas, for appellee.

BATEMAN, Justice.

The appellant Miller & Miller Auctioneers, Inc., one of numerous defendants named in the petition filed in the district court of Dallas County by appellee Hillcrest State Bank of University Park, filed its plea of privilege to be sued in Tarrant County, where it resides; appellee filed a controverting plea; and the trial court overruled the plea of privilege.

Appellant appeals on two points of error, the first being that appellee's pleadings were insufficient to justify the overruling of the plea of privilege. Appellant's plea of privilege, in proper form, was filed October 3, 1966. The controverting affidavit was filed October 7, 1966 and incorporated therein by reference appellee's first amended original petition. However, this amended petition does not appear in the transcript. On October 28, 1967, appellee's second amended original petition was filed, but the controverting affidavit was not amended.

Appellant argues that by filing its second amended original petition the appellee abandoned its prior petitions and is therefore left without sufficient pleadings to justify the court's action in overruling the plea of privilege. Rule 58, Vernon's Texas Rules of Civil Procedure, provides for the adoption of statements in a pleading in another pleading 'so long as the pleading containing such statements has not been superseded by an amendment as provided by Rule 65.' Rule 65, T.R.C.P., with certain exceptions not applicable here, provides generally that in case of the amendment of a pleading the prior pleading 'shall no longer be regarded as a part of the pleading in the record of the cause * * *.'

However, in the last sentence of its second amended original petition appellee incorporated therein 'in full its Plaintiff's Petition First Amended (sic) and all Exhibits thereto and all Exhibits hereto as part hereof in alleging Plaintiff's claims and grounds for relief and the relief prayed for,' and argues that it was appellant's duty, since it has the burden of showing error in this court, to bring up the complete record. We agree with appellee. Appellee made it clear that it was relying on the allegations of both its first and its second amended petitions, as well as its controverting plea, all of which pleadings were verified, and while the practice of incorporating by reference all of the allegations of a prior petition in an amended petition is quite unusual, and not the best practice, we know of no rule which prohibits it. Appellant voiced no objection to it in the trial court. Under these circumstances, it is our view that the prior petition was not an abandoned pleading but was kept 'alive' by incorporating its allegations in the later amended petition and in the controverting plea.

Since the first amended original petition is not contained in the transcript, we do not know whether it provided adequate pleadings to support the controverting plea and the overruling of the plea of privilege or not. Appellant cannot complain of the insufficiency of appellee's pleadings when it fails to bring us a transcript of all the pertinent pleadings. Therefore, appellant's first point of error is overruled. Pelton v. Powell, 196 S.W.2d 46 (Tex.Civ.App., Fort Worth 1946, no writ); B. L. Satterwhite & Co. v. Eardley, 294 S .W.2d 412 (Tex.Civ.App., Galveston 1956, no writ); Snyder v. Johnson, 237 S.W.2d 740, 743 (Tex.Civ.App., Amarillo 1950, mand. den . Snyder v. Pitts, 150 Tex. 407, 241 S.W.2d 136).

By its second point of error the appellant asserts that the evidence fails to bring the case within certain of the exceptions contained in the various subdivisions of Vernon's Ann.Civ.St. Art. 1995. Appellee claimed to be the holder of a promissory note executed by one Earl W. Nunneley, secured by a chattel mortgage on a large quantity of machinery and other personal property, as well as certain leases of machinery between Nunneley, as lessee, and Auto-Equip Leasing Corporation, lessor, which had been pledged to appellee as collateral security; that pursuant to an agreement with Nunneley the appellant took possession of this and other property and held an auction sale thereof in Lufkin, Angelina County, Texas, which constituted a conversion of appellee's security for its notes. Appellee asserted venue in Dallas County by virtue of Subdivisions 4, 5, 7, 23 and 29a, of Art. 1995, V.A.C.S. The evidence will be discussed with respect to each of these subdivisions.

Subdivision 4. For this subdivision to be applicable, it was necessary for appellee to allege a joint cause of action against appellant and one or more of the other defendants residing in Dallas County, or a cause of action against the resident defendant or defendants so intimately connected with the cause of action alleged against appellant that the two might be joined under the rule intended to avoid a multiplicity of suits, and to prove by independent evidence that the appellee had a cause of action as alleged against the resident defendant or defendants. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1304 (1936).

The evidence showed that Earl W. Nunneley gave Fruehauf Corporation a promissory not for $500,000 and a chattel mortgage on many items of machinery and other personal property to secure the same; that Fruehauf Corporation assigned this note and mortgage to Transcontinental Leasing Corporation, which in turn assigned the same to appellee as collateral security to its indebtedness to appellee; that Auto-Equip Leasing Corporation was also indebted to appellee and, as security therefor, assigned to appellee certain leases of machinery and other personal property, which Auto-Equip Leasing Corporation had purchased from Nunneley and leased back to him. The evidence further showed that Nunneley, not knowing of the assignments and pledges to appellee, or of its liens on the property, contracted with appellant for the auction sale in question, which sale covered not only the property thus sold, leased and mortgaged, but also other personal property owned by Nunneley. Transcontinental Leasing Corporation and Auto -Equip Leasing Corporation had notice of this agreement and agreed to the sale. Their president, Scott Walker, testified that appellee also agreed that the sale be held. William M. Miller, president of appellant, testified that appellee made no such agreement with him. Cam S. Dowell, Jr....