Peavy v. Ward

• Decision Date: 09 January 1962
• Docket Number: No. 7402,7402
• Parties: Waymon G. PEAVY et al., Appellants, v. Travis WARD, Appellee.
• Court: Texas Court of Appeals

Page 882

352 S.W.2d 882

Waymon G. PEAVY et al., Appellants, v. Travis WARD, Appellee.

No. 7402.

Court of Civil Appeals of Texas, Texarkana.

Jan. 9, 1962.

Rehearing Denied Jan. 23, 1962.

Strasburger, Price, Kelton, Miller & Martin, Dallas, for appellants.

Moore & Holland, Athens, Dawson & Dawson, Corsicana, Spruiell, Lawry, Potter, Lasater & Guinn, Wilson Miller, Spivey & Steger, Tyler, for appellee.

DAVIS, Justice.

This is a venue case. Travis Ward, plaintiff-appellee, sued Fairway Oil and Gas Co., Inc., Thomas W. Clay and John E. Protho, (officers of Fairway), Wayne G. Peavy, Greenbrier 60 Limited, and Greenbrier 61 Limited, limited partnerships in which Peavy is a general partner, defendants in the District Court of Anderson County, for the cancellation of a certain undivided one-sixteenth interest in an oil, gas and mineral leasehold situated in Anderson and Henderson Counties. The defendants filed pleas of privilege. Fairway wanted the case moved to Smith County. Peavy and Greenbrier 60 and Greenbrier 61 wanted the case moved to Dallas County. The plea of privilege to be sued in Dallas County was filed on June 19, 1961. The plea of privilege by Fairway was filed on June 20, 1961. Before time to controvert the pleas of privilege, the plaintiff, on June 28, 1961, took a nonsuit.

The plaintiff then filed the same suit against the defendants in the District Court of Smith County. Fairway filed an answer. The defendants-appellants, Peavy and Greenbrier 60 and Greenbrier 61, filed a joint plea of privilege to be sued in the District Court of Dallas County. The appellants take the position that the question of venue had been determined by reason of the appellee taking a nonsuit in the Anderson County case while the pleas of privilege were pending. The trial court overruled the plea of privilege of the appellants and they have appealed.

The appellants bring forward one point of error. It reads as follows:

'The trial court erred in overruling Appellants' plea of privilege, which was valid as a matter of law because of Appellee's previous voluntary dismissal of his suit upon the same cause of action in Anderson County at a time when Appellants had pending a plea of privilege asserting their right to be sued in Dallas County.'

The case is to be decided upon a question of law. The facts in the case were stipulated before the trial court. The attorney for the appellant in the trial court, in connection with the stipulation, made the following statement:

'In other words, Your Honor, the net effect of our stipulation is that as far as the facts go, Mr. Dawson would be able to establish prima facie case as to--as pleaded, and the point that we are reaising here is that assuming there would otherwise be venue in this County, or position is based on the legal effect of the proceedings in Anderson County. And that is what we want to go into here.'

It is admitted in their briefs, and was admitted on oral argument, that if the pleas of privilege had been contested in Anderson County, the Judge in that county could have sustained the pleas pf privilege and sent the case against all the defendants to either Smith or Dallas County. Appellants take the position that the appellee, by taking a nonsuit in Anderson County thereby waived his right to sue them jointly in Smith County. Appellants rely upon the following cases: Roach v. Trinity Universal Ins. Co., Tex.Civ.App., 119 S.W.2d 127; Morse v. Scott, Tex.Civ.App., 130 S.W.2d 1041; Clifton v. Price, Tex.Civ.App., 88 S.W.2d 783; First Nat. Bank in Dallas v. Hannay, 123 Tex. 203, 67 S.W.2d 215; Robinson Truck Lines v. Kerksey, Tex.Civ.App., 219 S.W.2d 844; H. H. Watson Co. v. Cobb Grain Company, Tex.Com.App., 292 S.W. 174; Humble Oil and Refining Co. et al. v. Pettaway, Tex.Civ.App., 76 S.W.2d 1069; Royal Petroleum Corporation et al. v. McCallum, Judge et al., 134 Tex. 543, 135 S.W.2d 958; Picadilly Cafeteria of Waco Inc. v. Lee, Tex.Civ.App., 301 S.W.2d 228; Tempelmeyer v. Blackburn, 141 Tex. 600, 175 S.W.2d 222; Johnson v. First National Bank of Brenham, Tex.Civ.App., 42 S.W.2d 870; Tunstill v. Scott, 138 Tex. 425, 160 S.W.2d 65; International Harvester Company et al. v. Stedman, 159 Tex. 593, 324 S.W.2d 543; Tarrant v. Walker, 140 Tex. 249, 166 S.W.2d 900; Miller v. Matthews, Tex.Civ.App., 176 S.W.2d 1011; Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774; Rogers v. Fort Worth Poultry & Egg Company, Tex.Civ.App., 185 S.W.2d 165; Fair et al. v. Mayfield Field & Grain Co., Tex.Civ.App., 203 S.W.2d 801; Kennell v. Knox, Tex.Civ.App., 221 S.W.2d 1020; Leavell v. Lincoln County Mut. Fire Ins. Co., Tex.Civ.App., 243 S.W.2d 223; City of Gilmer v. State of Texas ex rel. Southwestern Gas & Elec. Co., Tex.Civ.App., 281 S.W.2d 109; Clingingsmith v. Bond, 150 Tex. 419, 241 S.W.2d 616; Cockburn Oil Corp. v. Newman, Tex.Civ.App., 244 S.W.2d 845; York Supply Company v. Dunigan Tool & Supply Co., Tex.Civ.App., 276 S.W.2d 317.

It appears that the appellants are proper parties to the cause of action, and are necessary parties to the cancellation allegations. Montgomery v. Owen, Tex.Civ.App., 37 S.W.2d 1107, and People' Nat. Bank of Tyler v. Montgomery, Tex.Civ.App., 37 S.W.2d 1111, n. w. h. Cases holding that co-defendants claiming an interest in property under instruments executed to defendants subsequent to the instrument on which the plaintiff sued are necessary parties are: Smith et al. v. Dozier Const. Co., Tex.Civ.App., 66 S.W.2d 744; Pioneer Building & Loan Ass'n v. Gray, 132 Tex. 509, 125 S.W.2d 284; Campbell v. McFadden, 9 Tex.Civ.App. 379, 31 S.W. 436, err. ref.; Clingingsmith v. Bond, 150 Tex. 419, 241 S.W.2d 616; Langley v. Norris, 141 Tex. 405, 173 S.W.2d 454.

According to 1 McDonald, Tex.Civ.Practice, Sec. 4.57 at p. 465, the cause charging a joint action growing out of joint liability, it seems that the plaintiff has the right to select the county to which he should be transferred. There, McConald said:

'The courts have indicated that the action, if involving a claim which could have been litigated at the residence of the defendants against both of them under exception 4, the cause should be transferred as a whole to the domicile of either to be selected by the plaintiff.' (Emphasis added.)

The following cases hold that the plaintiff has the right to choose the county to which a case should be transferred where pleas of privilege are contested: Burgess v. Adams, Tex.Civ.App., 273 S.W. 343, n. w. h.; Sherrod v. Rudd Mfg. Co. et al., Tex.Civ.App., 158 S.W.2d 351, n. w. h. See, also, 43-B Tex.Jur. 451-452, Sec. 179.

As pointed out in 1 McDonald, Texas Civil Practice, Sec. 4.62, at p. 471 the order of dismissal in Anderson County is not res...