Pettit v. Campbell, 14179.

• Decision Date: 28 February 1941
• Docket Number: No. 14179.,14179.
• Citation: 149 S.W.2d 633
• Parties: PETTIT v. CAMPBELL et al.
• Court: Texas Court of Appeals

149 S.W.2d 633

PETTIT v. CAMPBELL et al.

No. 14179.

Court of Civil Appeals of Texas. Fort Worth.

February 28, 1941.

Rehearing Denied April 11, 1941.

Appeal from District Court, Tarrant County; Frank P. Culver, Jr., Judge.

Action by George H. Campbell, receiver of the Harry W. Elliott Interests, and another against Charles Pettit and others for fraud. From an order overruling named defendant's plea of privilege, he appeals.

Reversed, and transfer of case to the district court of Dallas county ordered.

W. E. Allen and Allen & Gambill, all of Fort Worth, and Storey, Sanders, Sherrill & Armstrong, of Dallas, for appellant.

Boykin & Ray, Simon & Wynn, and H. S. Lattimore, all of Fort Worth, for appellees.

McDONALD, Chief Justice.

This is an appeal from an order overruling a plea of privilege.

The suit was brought in the District Court of Tarrant County by George H. Campbell, receiver of the Harry W. Elliott Interests, and by T. C. McMurray, receiver of the Twelve Way Syndicate Interests, against Charles Pettit and others. Pettit sought to remove the cause to Dallas County, the county of his residence. Plaintiffs filed controverting pleas, seeking to maintain venue in Tarrant County, under Subdivision 4 and Subdivision 7, as amended, of Article 1995, Revised Civil Statutes, Vernon's Ann.Civ.St. art. 1995, subds. 4, 7. Plaintiffs appear to have abandoned their plea under Subdivision 4, and now rely upon Subdivision 7, which, as amended, reads as follows: "7. Fraud and defalcation. In all cases of fraud, and in all cases of defalcation by public officers, suit may be brought in the county where the fraud was committed or where the defalcation occurred, or any of such suits may be brought where the defendant has his domicile."

The plea of privilege was overruled, and the defendant Charles Pettit has appealed.

Plaintiffs' petition, which is incorporated by reference in their controverting plea, in effect alleges: That Harry W. Elliott organized two oil promotions, one known as the Twelve Way Syndicate, and the other as the Harry W. Elliott Interests; that he sold shares in these enterprises to the public; that these enterprises acquired certain oil properties; that these properties were acquired and held in the name of Elliott, as a sort of agent or trustee for the persons to whom he had sold the shares mentioned; that Elliott, acting as such agent or trustee, made certain transfers of oil and interests in oil to the defendant Pettit, under an agreement that Pettit would share with Elliott individually the profits to be earned by Pettit from these transactions; and that such agreements and acts of Elliott and Pettit constituted a fraud upon the holders of the beneficial interests in these promotion enterprises.

The assignments of error and propositions present questions relating to three matters. The first relates to the admissibility of certain testimony of Mr. Hal S. Lattimore, one of the attorneys for plaintiffs. The other two relate to the sufficiency of the proof to establish that any fraud was committed, or that it was committed in Tarrant County.

It appears from the record that in 1938, before the present suit was filed, Pettit was sued in the United States District Court for the Northern District of Texas upon these same transactions. That suit was dismissed by the trial court, and its action was affirmed by the U. S. Circuit Court of Appeals, for the reasons shown in its opinion. Todd v. Pettit et al., 5 Cir., 108 F.2d 139.

Upon the hearing of this plea of privilege, Hal S. Lattimore, one of the attorneys for plaintiffs, took the witness stand and, over Pettit's objections, testified that he was present when a deposition of Pettit was taken in the above federal court case, and that he heard Pettit make his answers to the interrogatories there propounded to him. Lattimore then proceeded to testify as to what he had heard Pettit testify in the deposition hearing.

Pettit objected on the ground that the deposition taken in the case in the federal court was not admissible because it was taken in a different suit, and also on the ground that if the deposition itself was admissible in evidence, Lattimore's testimony as to what he had heard Pettit testify would not be the best evidence of the testimony appearing in the deposition.

Plaintiffs contended that Pettit's answers given at the deposition hearing were admissible against him in any other suit to which he might be a party, as admissions or declarations against interest, and that any person who had heard him make the answers could properly testify as to what Pettit had said.

Under such cases as Lacoste v. Chief Justice of Bexar County, 28 Tex. 420, Bilger v. Buchanan, Tex.Sup., 6 S.W. 408, Parker v. Chancellor, 78 Tex. 524, 15 S.W. 157, and National Cattle Loan Company v. Armstrong, Tex.Civ.App., 8 S.W.2d 767, writ of error refused, we would have thought that Pettit's deposition, if properly proved, would have been admissible against him as an admission or declaration against interest. In the case of Reilly v. Buster, 52 S.W.2d 521, the Court of Civil Appeals, citing most of the above cases, held that the deposition of a party, though improperly taken, was admissible against him on the ground that it contained admissions and declarations against interest. But the Commission of Appeals, in an opinion adopted by the Supreme Court, Reilly v. Buster, 125 Tex. 323, 82 S.W.2d 931, reversed the judgment of the Court of Civil Appeals, holding that it was error to admit the deposition in evidence under the circumstances of that case.

Appellees suggest a distinction between the circumstances in Reilly v. Buster, supra, and those in the case on appeal. They suggest that in Reilly v. Buster the Supreme Court only held that it was error to admit the deposition as a deposition, as distinguished from a mere admission or declaration against interest; and that in the case on appeal Pettit's deposition was not offered as a deposition, but only as an admission or declaration against interest. This distinction might be plausible, but for the language in the Reilly v. Buster opinion. The essence of that holding, as we interpret the opinion, is that the answers in a deposition taken by the opposite party are not in the nature of voluntary admissions, but are given under...