Reed v. Walker, 2217.

• Decision Date: 09 January 1942
• Docket Number: No. 2217.,2217.
• Citation: 158 S.W.2d 894
• Parties: REED et al. v. WALKER.
• Court: Texas Court of Appeals

158 S.W.2d 894

REED et al. v. WALKER.

No. 2217.

Court of Civil Appeals of Texas. Eastland.

January 9, 1942.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Howard County; Cecil C. Collings, Judge.

Suit on a note by A. E. Walker against D. C. Reed, J. W. Strickland, and another, and to recover money, wherein defendants Reed and Strickland filed pleas of privilege. From separate orders overruling the pleas of privilege, defendants Reed and Strickland appeal.

Order overruling defendant Reed's plea reversed and cause remanded with instructions, and order overruling defendant Strickland's plea affirmed.

Martelle McDonald and Thomas & Thomas, all of Big Spring, for appellants.

Sullivan & Sullivan, of Big Spring, for appellee.

FUNDERBURK, Justice.

A. E. Walker, a resident of Howard County, as plaintiff, filed this suit, in Howard County, on the 13th day of July, 1940, against J. N. Partin, allegedly "trading and operating under the name of Partin Drilling Company" and alleged to be a resident of Howard County; and also against D. C. Reed, a resident of Travis County.

As against defendant J. N. Partin, recovery was sought on a demand note alleged to have been executed by him to plaintiff as payee, dated February 13, 1940; being for the principal sum of $1,313.02, and providing for interest, attorney's fees, etc. The note expressly recited that it was payable in Howard County.

As alleged in plaintiff's original petition, the cause of action against D. C. Reed was for recovery of a balance of $1,313.02, due plaintiff as assignee of J. N. Partin (Partin Drilling Company) upon a well drilling contract to which Partin and Reed were parties. It was alleged that the well, drilled under the provisions of said contract, was in Howard County; "that the payment for said work was to be done and performed in Howard County, Texas; that the said defendant, D. C. Reed, agreed to perform the terms of the assignment as set out in `Exhibit B' attached hereto, in the County of Howard, State of Texas." (Note: The allegations construed to state the cause of action above described may be sufficient to state a cause of action, not upon an assignment of the drilling contract or moneys due thereunder, but upon an original promise of D. C. Reed, for an independent consideration, to pay the balance of $1,313.02 due on his drilling contract with Partin Drilling Company to the plaintiff, rather than to Partin Drilling Company.)

Purportedly, alternative to the cause of action (or causes of action, if more than one) above stated, there were further allegations in said petition to the effect that if said D. C. Reed had performed his contract with Partin Drilling Company and had paid J. N. Partin the $1,313.02 "then and in that event, the said defendant, D. C. Reed, has violated and refused to carry out the terms of the assignment mentioned in `Exhibit B' attached hereto, after agreeing to do so, and by reason of the fraud perpetrated in failing and refusing to carry out the terms of said assignment, this defendant D. C. Reed is now justly indebted, and is obligated and bound to pay, to this plaintiff the sum of $1313.02 to be applied as a payment on the note sued on herein."

On July 30, 1940, prior to the filing of any plea of privilege in the case, plaintiff filed his first amended original petition, but therein asserted as against each defendant substantially the same cause of action, or causes of action, as before. On September 2, 1940, defendant, D. C. Reed, filed his plea of privilege to be sued in Travis County. On September 5, 1940, plaintiff filed his "Controverting Affidavit" in answer to the plea of privilege of the defendant Reed. In substance, said controverting plea alleged that the suit was upon the note of Partin Drilling Company to plaintiff, for $1,313.02; that J. N. Partin was a resident of Howard County and was a proper and necessary party to the suit. It was further alleged in substance, or effect, that J. N. Partin (Partin Drilling Company) had assigned to plaintiff $1,313.02 to be due the former by D. C. Reed upon completion of a drilling contract; that D. C. Reed had accepted the assignment "as collateral security" to the note of J. N. Partin to the plaintiff in the sum of $1,313.02; that Reed "refused and failed to carry out said assignment and still owes said sum of money to Partin Drilling Company and/or has paid said money to the Partin Drilling Company in violation of the assignment that the said defendant D. C. Reed agreed to keep and abide by. Reference is hereby made to the first amended original petition of plaintiff now on file in this cause for all purposes, and attached to this controverting plea is a substantial copy of plaintiff's first amended original petition, together with Exhibits `A' and `B' attached thereto, and said first amended original petition as well as all the allegations contained in the substantial copy of said instruments attached to this plea, is made a part of this controverting plea for all purposes. And plaintiff now alleges that there is an exception to Art. 1995, * * * in that, one of the necessary and proper defendants in this cause is a resident citizen of Howard County."

On October 15, 1940, before the pending issues of venue between plaintiff and defendant, D. C. Reed, had been determined, plaintiff filed his second amended original petition. In lieu of the allegations in previous pleadings to the effect that Partin Drilling Company was the trade name under which J. N. Partin operated, it was alleged that J. N. Partin and J. W. Strickland —the latter alleged to be a resident of Gregg County—were partners who operated under the trade name of Partin Drilling Company. All allegations in previous pleadings relating to J. N. Partin and Partin Drilling Company were substantially re-affirmed, as including also J. W. Strickland.

On December 2, 1940, J. W. Strickland filed his plea of privilege to be sued in Rusk County. On January 7, 1941, plaintiff filed his "Controverting Affidavit" in answer to J. W. Strickland's plea of privilege. In said controverting plea it was alleged that the suit was upon the note given by Partin Drilling Company, a partnership composed of J. N. Partin and J. W. Strickland; that the note was payable in Howard County; that J. N. Partin was, at the time of the filing of the suit, a resident of Howard County, and a proper and necessary party to the suit.

Upon hearing, the pleas of privilege (same having been continued from term to term without prejudice) were, on February 21, 1941, by separate orders overruled, from which each defendant has appealed.

One theory is sufficiently plain, namely, that the suit was against two or more defendants residing in different counties; and one of the defendants—J. N. Partin—was a resident of Howard County, wherein venue was sought to be sustained under exception 4 to the general rule of venue as prescribed in R.S.1925, Art. 1995, Vernon's Ann.Civ.St. art. 1995. In our opinion, there was no evidence to establish, or raise an issue concerning, the essential venue fact that J. N. Partin was at the time of filing the suit a resident of Howard County. If, therefore, the judgment overruling Reed's plea of privilege is to be sustained, it must be because of some exception other than exception 4.

The venue was proper as to Partin, even if he was not a resident of Howard County. As to that, no issues were joined. The suit against him was upon a note expressly naming Howard County as the place of performance of the obligation sought to be enforced.

Reed, however, was not a party to the note, and, therefore, was not shown to have contracted in writing to pay it in Howard County. Venue as to Reed could not, therefore, be sustained under exception 5, even if the pleadings should be construed as attempting to do so.

The only exception, other than exception 4, suggested by the pleadings, under which the venue might be sustainable as to Reed, was exception 29a. In order to sustain the venue as to Reed under that exception, it was necessary for plaintiff to plead and prove that Reed was a necessary party to the suit; and that venue of the suit, in Howard County, was proper as to one or more defendants, other than Reed, under one or more exceptions other than exception 29a. Exception 29a, while additional to all other exceptions to the general rule of venue as prescribed in Art. 1995, is, nevertheless, only operative in combination with some other exception. Crawford v. Sanger, Tex. Civ.App., 160 S.W.2d 115. Therefore, when exception 29a is relied upon to sustain venue as against a proper plea of privilege, it is necessary for the plaintiff to allege and prove the venue facts comprising at least two exceptions to the general rule of venue (Exception 29a, and another). Since the venue facts of the exception with which exception 29a is combined must be...