Phipps v. Reed
| Decision Date | 01 April 1949 |
| Docket Number | No. 2721.,2721. |
| Citation | 219 S.W.2d 561 |
| Parties | PHIPPS v. REED et ux. |
| Court | Texas Court of Appeals |
Appeal from District Court, Erath County; Ernest Belcher, Judge.
Suit by Clinton Reed and wife against Jim A. Phipps. From judgment overruling defendant's plea of privilege, the defendant appeals.
Affirmed.
Scott, Wilson & Cureton, of Waco, and Joseph A. Chandler, of Stephenville, for appellant.
C. O. McMillan, of Stephenville, for appellee.
In their original petition, Reed and wife alleged they owned land in Erath County; that Phipps owned a note secured by a deed of trust lien thereon; that, when the note and deed of trust were executed, Reed was employed by Phipps as a salesman and it was agreed Phipps would withhold one-fourth of the commissions earned by Reed and apply same on said note; that Phipps had retained commissions sufficient to pay all installments due but had failed to apply same on the note and was claiming an installment was past due; that said note constituted an encumbrance upon the land and a cloud on plaintiff's title and the suit was brought to declare the amount Reed owed and to remove the encumbrance upon plaintiff's title to said land in Erath County, to the extent of the credits to which plaintiffs were entitled; that Phipps was threatening to foreclose his lien; that there was no installment due, however, plaintiff tendered payment of the full amount unpaid on said note. Plaintiffs prayed that Phipps be restrained from foreclosing his lien; that the injunction be made permanent; that the court determine the amount unpaid on said note; that the lien on plaintiff's land be cancelled, and for general relief. A temporary restraining order was issued restraining Phipps from foreclosing his lien. Phipps filed a plea of privilege to be sued in McLennan County, where he resides. Thereafter, plaintiffs filed an amended petition and a controverting affidavit. In said pleadings plaintiffs alleged the facts heretofore stated and, in addition, that Phipps had sold the land under the deed of trust and a deed had been executed by a substitute trustee conveying the land to Phipps; that the notice required by the deed of trust and by law was not given; that notices of the trustee's sale were not posted for three weeks prior to the sale; that the notices were not posted in three public places and that there was no installment of the note due when the sale was made. Plaintiffs prayed for judgment declaring the trustee's sale void and cancelling the trustee's deed and that the court declare the amount unpaid on the note and that no installment was past due. Thereafter plaintiffs filed a second amended petition and an amended controverting affidavit. Plaintiffs alleged in the amended controverting plea that this is a suit to recover land in Erath County and to remove an encumbrance therefrom and to quiet title thereto, and that the suit was maintainable in Erath County under Subdivision 14, Art. 1995. Plaintiff made their second amended petition a part of said amended controverting affidavit. Said petition contained the allegations and substantially the same prayer as in their first amended petition, including a prayer for judgment declaring the trustee's sale void and setting aside the deed and sale and for judgment declaring the amount unpaid on the note and that no installment was past due. Plaintiffs offered to pay the entire unpaid balance of said note. They prayed that the lien be cancelled and for general relief.
A trial to the court was had on the issues made by plaintiffs' amended controverting affidavit and defendant's plea of privilege. No question of surprise is in the case. Judgment was rendered overruling defendant's plea of privilege and he has appealed.
Appellant's second point is to the effect that when the Reeds filed their amended petition and controverting affidavit they abandoned their original cause of action and thereby admitted that defendant's plea of privilege, which was good as against the facts alleged in plaintiff's original petition, should be sustained. Appellant argues that appellees, by filing the amended petition, set up a different cause of action and deprived the trial court of power to permit a controverting affidavit to be filed; that if plaintiffs desired to amend their pleading, they were required to amend after the case was transferred to McLennan County or to have their amended petition carried along with the original papers, as provided by Texas Rules of Civil Procedure, rule 89. Appellant contends the court violated R.C.P. 86 in permitting appellees to file their amended controverting affidavit. Appellant apparently urges, as pertinent here, the fact that R C.P. 86 requires that a controverting affidavit shall be filed within ten days after appearance date. Appellant contends that the issues to be determined upon a venue hearing are those made by the plaintiffs' pleadings on file when the defendant filed his plea of privilege. Said point is overruled. We think the decision in Gomillion v. Lingold, Tex.Civ.App., 209 S.W.2d 205, is correct. Appellees had the right by amendment to...
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