Montgomery v. Owen

• Decision Date: 28 March 1931
• Docket Number: No. 10769.,10769.
• Citation: 37 S.W.2d 1107
• Parties: MONTGOMERY v. OWEN et al.
• Court: Texas Court of Appeals

37 S.W.2d 1107

MONTGOMERY v. OWEN et al.

No. 10769.

Court of Civil Appeals of Texas. Dallas.

March 28, 1931.

Appeal from District Court, Dallas County; Towne Young, Judge.

Suit by L. L. Montgomery against M. W. Owen and others. From an order transferring the cause to another county on plea of privilege, plaintiff appeals.

Reversed and rendered.

See also 37 S.W.(2d) 1111.

O. F. Wencker, of Dallas, for appellant.

Tomas G. Pollard, of Tyler, and Tom L. Beauchamp, of Paris, for appellees.

VAUGHAN, J.

Appellant, L. L. Montgomery, plaintiff below, on October 22, 1929, filed this suit in a district court of Dallas county, against M. W. Owen, the People's National Bank of Tyler, and the Miller Drilling Company, alleging residence of Owen in Dallas county, the People's National Bank in Smith county, and the Miller Drilling Company in Tarrant county, Tex. On November 6, 1929, appellant filed his first amended original petition making J. S. Kimbrough and the East Texas Oil Corporation additional parties defendant, alleging the residence of Kimbrough to be in Dallas county, but temporarily residing in Smith county, and the residence of East Texas Oil Corporation to be in Smith county, Tex. On December 12, 1929, appellant filed his second amended original petition, in which he was joined by his wife, Musidore R. Montgomery. Appellant's cause of action is based on a written contract dated September 24, 1928, between appellant as first party and defendant Owen as second party, for the exchange of land, appellant's land being located in Dallas county, and Owen's land in Smith county. Appellant sought specific performance of the contract as against all of the defendants and prayed for the conveyance to him of the land in Smith county, or in the alternative, judgment therefor.

Appellee Kimbrough, on November 22, 1929, duly filed his plea of privilege to be sued in Smith county, in every respect in due form, and in which he alleged: That no exception to exclusive venue in the county of one's residence, provided by law, existed in said cause; that this suit did not come within any of the exceptions provided by law in such cases authorizing same to be brought or maintained in the county of Dallas, or elsewhere, out of the county of Smith. On November 22, 1929, appellee East Texas Oil Corporation filed its plea of privilege to the same tenor and effect as that filed by appellee Kimbrough, to be sued in Smith, the county in which it resided and conducted its business. On December 22, 1929, appellant filed his controverting affidavit to said pleas of privilege, respectively, viz.: As to Kimbrough's plea, appellant made his second amended original petition a part thereof and alleged the following grounds for contesting said plea, viz.: "That by reason of the allegations contained in such petition this court has jurisdiction and can continue the suit without transferring the same as against the defendant, J. S. Kimbrough; that the court can further maintain jurisdiction and venue of this suit as against J. S. Kimbrough for the reason that the said Owen, at the time of the institution of this suit, was a resident of Dallas County, and such suit is lawfully maintainable against said Owen under the provisions of article 1995 of the Revised Statutes of the State of Texas, and in this suit J. S. Kimbrough is a necessary party, and suit may be maintained against J. S. Kimbrough in Dallas County because of such facts; that this court can further maintain jurisdiction and venue of this suit as against J. S. Kimbrough because said Owen, at the time of the institution of this suit, was a resident of Dallas County and entered into the contract sued upon in his own name and for himself, and the said Kimbrough is a necessary party defendant to this suit for the reason that he asserts some interest in and to the land which plaintiffs are seeking to have conveyed to them by said Owen and said Kimbrough should be held in this suit because of the interest he asserts in the land covered by the contract sought to be specifically enforced."

As to the East Texas Oil Corporation's plea, said affidavit is, in tenor and effect, the same as that filed to appellee Kimbrough's plea, and in addition thereto contains the following: "This court can further maintain jurisdiction and venue of this suit as against the East Texas Oil Corporation because the defendant M. W. Owen at the time of the institution of this suit was a resident of Dallas, Dallas County, Texas, and entered into the contract sued upon in his own name and for himself, and the said East Texas Oil Corporation is a necessary party defendant to this suit for the reason that it asserts some interest in and to the land which plaintiffs are seeking to have conveyed to them by the defendant M. W. Owen and the defendant East Texas Oil Corporation should be held in this suit because of interest it asserts in the land covered by the contract sought to be specifically enforced."

On January 3, 1930, a hearing was had on said pleas of privilege, same were sustained and this cause as to said appellees transferred to Smith county. From this order, appellant duly prosecuted an appeal to this court. At said hearing the following facts were established: That the land said Owen contracted to convey to appellant is located in Smith county; that he held the record title thereto at the date said contract was executed; that prior to and at the time of the filing of this suit, said Owen was a resident of Dallas county; that appellee Kimbrough, prior to and at the time of the filing of the suit and at the time of the filing of his plea of privilege, resided in Smith county; that appellee East Texas Oil Corporation was, at the institution of this suit, the time of the service of the process therein, and at the time of filing of its plea of privilege, residing in and operating in Smith county; that on June 18, 1929, appellee bank duly executed its deed of that date conveying the land in Smith county to defendant Owen, which was duly filed for record in Smith county September 27, 1928, the consideration for the execution of said deed being stated therein at $2,500 cash; that the involved contract was executed on September 24, 1928, and is in tenor and effect as alleged in appellant's second amended original petition, on which this cause went to trial; that on October 3, 1928, defendant Owen executed his deed of that date reconveying the Smith county tract of land to appellee bank, the consideration for the execution of said deed being stated therein at $2,500 cash; that said deed was duly filed for record December 12, 1928; that the deed executed by appellee bank to said Owen and the deed executed by said Owen to appellee bank, reconveying the Smith county land, were both without actual consideration; that on October 8, 1929, appellee bank executed a lease to appellee Kimbrough, granting oil and gas rights in the Smith county tract of land; that said lease was duly filed for record October 16, 1929; that on October 23, 1929, appellee Kimbrough, by instrument of that date, assigned the lease contract...