Pierson v. Pierson, 5011.
| Citation | 128 S.W.2d 108 |
| Decision Date | 17 April 1939 |
| Docket Number | No. 5011.,5011. |
| Parties | PIERSON et al. v. PIERSON. |
| Court | Court of Appeals of Texas |
Appeal from District Court, Cochran County; Daniel A. Blair, Judge.
Suit on note and to foreclose a deed of trust lien by Lee Pierson against William H. Pierson, individually and as administrator of the estate of William Pierson, deceased, and others. Some of the defendants filed a cross-action. From the judgment, some of the defendants appeal.
Reversed and remanded.
Hardy Hollers, of Austin, and Vickers & Campbell, of Lubbock, for appellants.
Lawrence L. Barber, of Seagraves, and Coombes & Andrews, of Stamford, for appellee.
This suit was instituted by appellee, Lee Pierson, in the district court of Cochran County, against S. B. Pierson and his wife, Bertie B. Pierson, who were alleged to be residents of Hockley County, and William H. Pierson, administrator of the estate of William Pierson, deceased, a resident of Travis County. By first amended original petition William H. Pierson, individually as well as administrator, Alice Thomas and her husband, Harvey Thomas, of Thurston, Washington, Howard Pierson, alleged to be non compos mentis, a resident of Travis County, and Walter C. Pierson, his guardian, also a resident of Travis County, were made parties defendant.
The suit was upon a promissory note payable to appellee in the sum of $11,000 executed by S. B. Pierson, dated February 15, 1930, due and payable twelve months after date, with interest and attorney's fees, and to foreclose a deed of trust lien executed by S. B. Pierson and his wife, Bertie B. Pierson, upon certain land located in Cochran and Yoakum Counties.
The cause of action alleged against all of the appellants except S. B. Pierson and wife was that after the execution of the note and deed of trust constituting appellee's cause of action, defendant S. B. Pierson executed a note in the sum of $5000 and another in the sum of $9674.38 to William Pierson and secured the same by a second deed of trust upon the same land. It was alleged that William Pierson afterwards died in Travis County, leaving a will; that appellant William H. Pierson is the duly qualified and acting administrator of his estate, and that William H. Pierson, Alice Thomas, wife of Harvey Thomas, and Howard Pierson are the sole and only heirs at law of William Pierson, deceased, and the only beneficiaries of his last will and testament. It was alleged that the deed of trust held by appellants as heirs of William Pierson, deceased, was second, inferior and subordinate to the deed of trust lien held by appellee, Lee Pierson.
Appellee also sued to recover the sum of $570.82 which he alleged he was required to pay to the State of Texas as interest due the state school fund upon certain portions of the land, and prayed for judgment against defendant S. B. Pierson for the full amount of the indebtedness represented by the note sued on, interest and attorney's fees, for the amount paid as interest to the state, and for a foreclosure of his first and superior deed of trust lien against S. B. Pierson and all of the appellants.
All of the appellants, except Alice Thomas and her husband, filed pleas of privilege, alleging their residence to be in Travis County. Subject to the pleas of privilege they filed general and special exceptions to the petition and a cross-action against appellee in which they set up their notes and deed of trust, alleging the latter to be a first lien on the land and superior to the deed of trust lien sought to be foreclosed by appellee. They prayed that their lien be so decreed but did not pray for a foreclosure thereof.
The case was submitted to the court without the intervention of a jury and after hearing the whole case, the court overruled the pleas of privilege and entered judgment in favor of the appellee against S. B. Pierson for the sum of $21,099.86, together with foreclosure of his deed of trust as a first lien upon the land against all of the defendants.
All of the defendants in the case, except S. B. Pierson and wife, Bertie B. Pierson, duly excepted to the judgment, gave notice of appeal, and have perfected an appeal to this court. They present the case here upon a number of assignments of error in which they contend, first, that error was committed by the trial court in procedural matters pertaining to hearing and disposing of the pleas of privilege; secondly, error in overruling the pleas of privilege; and, thirdly, error in overruling special exceptions to the petition.
Under the first contention appellants complain of the manner in which the trial court disposed of their pleas of privilege, contending that no evidence was heard, but that the court overruled the pleas of privilege before any controverting affidavits thereto were filed and without hearing any evidence thereon. The record shows some irregularities in this respect. During the discussion of the pleas of privilege and before controverting affidavits were filed the court announced he would overrule them. The testimony was then heard and, before the case was completed, appellee duly filed controverting affidavits. After the testimony was all heard, the court rendered judgment in favor of appellee. The record shows the pleas of privilege were discussed informally and on account of the desire of counsel to accelerate the hearing it seems to have been understood that the controverting affidavits would be considered as filed and that counsel for appellee would actually file them before the case was concluded. Before the hearing began upon the main issues in the case and before any evidence was heard upon the pleas of privilege and controverting affidavits, the trial judge announced he would overrule the pleas and counsel for appellants duly excepted. The case proceeded, however, upon the main issues and, after all of the evidence was heard, the judgment, disposing of all the issues in the case, including the action of the court in overruling the pleas of privilege, was entered.
While these proceedings were somewhat irregular we do not find anything in them that constitutes material error. The pleas of privilege were disposed of in the same judgment which disposed of the other issues in the case and it is apparent the final action of the court thereon was based upon the evidence introduced at the trial. It was within the discretion of the court to hear the evidence upon the pleas of privilege in a separate hearing or to hear it in connection with the trial of the main case, and we find nothing in the record which indicates an abuse of the discretion. The assignments of error pertaining to this question will, therefore, be overruled. Daniel v. Sharpe, Tex.Civ.App., 69 S.W. 2d 508; Gilmer v. Graham, Tex.Com.App., 52 S.W.2d 263.
Under appropriate assignments and propositions pertaining to their second contention, appellants assign as error the action of the trial court in overruling their pleas of privilege. The record shows that defendant S. B. Pierson, maker of the note sued upon by appellee, and his wife who joined him in the execution of the deed of trust given to secure the indebtedness, were residents of Hockley County. The land covered by the deed of trust was located in Cochran and Yoakum Counties. None of the appellants joined in the execution of the note nor of the deed of trust sued upon by appellee. None of them resided in Cochran County where the suit was filed but all were residents of Travis County except Alice Thomas and her husband, who were non-residents of the state. Appellee contends that he was entitled to maintain the suit in Cochran County under the provisions of Sub. 12, Art. 1995, R.C.S.1925, which provides that a suit for the foreclosure of a mortgage or other lien may be brought in the county where the property or any part thereof subject to such lien is situated. If appellants were necessary parties to the foreclosure proceeding instituted by appellee, he undoubtedly had the right to bring the suit against them in Cochran County as he did. In reply to this contention, appellants invoke the provisions of Sub. 29a of Art. 1995, Vernon's Ann.Civ.St. art. 1995, subd. 29a. That subdivision is comparatively a recent enactment, having been enacted by the 40th Legislature in 1927. Acts 1927, 40th Leg., 1st C.S., p. 197, Ch. 72, Sec. 2. It provides that whenever there are two or more defendants in a suit brought in any county in this state and such suit is lawfully maintainable therein under the provisions of Art. 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto. Art. 1995 provides that no person who is an inhabitant of this state shall be sued out of the county in which he has his domicile except in the cases therein enumerated as exceptions. Upon the enactment of Sub. 29a in 1927 it took its place among the exceptions already contained in Art. 1995 and now occupies a place of equal dignity with all of the other exceptions contained therein. It was not intended as a modification or change of any of the exceptions to venue which previously existed, but was a new and independent exception, designed to clarify the conditions under which a party may be sued in a county other than his residence upon the specific condition contained in the new exception. Appellee contends that he proceeded under and is depending upon Sub. 12 and only upon Sub. 29a in so far as it affects Sub. 12. We know of no rule which permits a plaintiff to select and isolate any particular subdivision of Art. 1995 and maintain non-resident venue under it to the exclusion of provisions in other subdivisions of the article. Sub. 29a being an independent exception to exclusive venue must be considered in connection with all other subdivisions of the article and harmonized with them. It provides, in effect, that unless a person is a necessary party to...
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