Roy Mitchell Contracting Co. v. Mueller Co., 7147

• Decision Date: 30 June 1959
• Docket Number: No. 7147,7147
• Citation: 326 S.W.2d 522
• Parties: ROY MITCHELL CONTRACTING COMPANY, Inc., Appellant, v. MUELLER COMPANY et al., Appellees.
• Court: Texas Court of Appeals

Page 522

326 S.W.2d 522

ROY MITCHELL CONTRACTING COMPANY, Inc., Appellant, v. MUELLER COMPANY et al., Appellees.

No. 7147.

Court of Civil Appeals of Texas, Texarkana.

June 30, 1959.

Rehearing Denied July 28, 1959.

Reeves & Reeves, Tyler, for appellant.

Johnson, Hathaway & Jackson, Lawrence & Lawrence, Tyler, for appellees.

FANNING, Justice.

Mueller Company, a Delaware corporation, and Bethlehem Supply Company, an Oklahoma corporation, as plaintiffs in the 7th District Court of Smith County, Texas, brought suit in the nature of a bill of discovery to require defendant Roy Mitchell Contracting Co., Inc., a Texas corporation, to answer under oath certain written interrogatories pertaining to the location of money, property or assets of defendant, and other stated matters with reference to conveyances and gifts, if any, made by defendant within a stated time, which bill of discovery was being sought as an aid to enforcing two final judgments which were unpaid, one of the judgments being rendered on June 30, 1958, by said 7th District Court in the sum of $1,418.60, with interest and costs in cause No. 58,323 in favor of said Mueller Company against said above named defendant, and the other judgment in cause No. 58,153 was rendered on September 4, 1958, in said 7th District Court in the sum of $961, costs and interest in favor of said Bethlehem Supply Company against said above named defendant. Plaintiffs in the discovery suit at bar pleaded and proved that they had made extensive efforts to locate property of defendant with which to satisfy their judgment including the levy of executions and returns thereon 'nulla bona' and that they had been unable to find any property of defendant. Defendant's motions for continuance, pleas to the jurisdiction and special exceptions to plaintiffs' pleadings were overruled. Defendant's late request for a jury was denied and the cause was tried by the court without the aid of a jury. The trial court after hearing the evidence adduced granted the relief sought by plaintiffs and ordered defendant to answer the written interrogatories under oath and to file such answers in the cause within 20 days from the date the judgment should become final. Defendant has appealed from the judgment of the trial court.

By its first point appellant contends to the effect that the court was not authorized to compel defendant to answer written interrogatories; in this connection appellant contends that under Rule 737, Texas Rules of Civil Procedure, plaintiffs were only entitled to have defendant examined on oral interrogatories before the trial court or by taking oral deposition in accordance with the general rules relating thereto.

Rule 737, T.R.C.P., was enacted in 1939. The source of the Rule was Article 2002, R.C.S., enacted in 1923. Article 2002 provided as follows:

'All trial courts shall entertain suits in the nature of bills of discovery, and grant relief therein in accordance with the usages of courts of equity. Such remedy shall be cumulative of all other remedies.'

Said Article 2002 was construed by the Supreme Court of Texas in National Compress Co. v. Hamlin (Leaverton v. Chapman), 114 Tex. 375, 269 S.W. 1024, 1029, as authorizing a trial court to compel a defendant judgment debtor to answer written interrogatories with respect to disclosure of assets or of fraud in the conveyance of property by a judgment debtor. We quote from the opinion in said cause as follows:

'The principal contention of plaintiffs in error is that discovery under this statute should not be decreed in Texas in order to compel disclosure of assets or of fraud in the conveyance of property by a judgment debtor, in the absence of a suit pending or contemplated.

It is earnestly insisted that the usages of equity support a decree for discovery only in aid of a suit pending or contemplated.

'Appreciating that the application presented a serious question of statutory construction, of far-reaching importance to the jurisprudence of the state, we gave the case careful consideration. The application was refused because we were satisfied that the statute was valid and that it was correctly construed by the Court of Civil Appeals. Our re-examination of the questions raised in the motion for rehearing confirms us in these views.

'We believe that Chancellor Kent, in Hendricks v. Robinson, 2 Johns.Ch., N.Y., 296, made a declaration in accord with the usages of courts of equity, in saying:

"I have no doubt that this court can and ought to lend its aid whenever that aid becomes requisite, to enforce a judgment at law, by compelling a discovery and account, either as against the debtor, or as against any third person who may have possessed himself of the debtor's property and placed it beyond the reach of an execution at law.'

'The above declaration of Chancellor Kent is fully supported by the cases cited in note 26 at page 5094 of 5 Pomeroy's Equity Jurisprudence, and by 1 Story's Equity Jurisprudence, Sec. 109, and 2 Story's Equity Jurisprudence, Sec. 928.

'Having rightly disposed of the petition for a writ of error, the motion for a rehearing by plaintiffs in error, H. A. Leaverton, et al., is overruled.'

The Commission of Appeals of Texas, with its opinion being adopted by the Supreme Court of Texas, in the case of Dallas Joint Stock Land Bank v. State ex rel. Cobb, 135 Tex. 25, 137 S.W.2d 993, held that a suit to compel a joint stock land bank to answer certain written interrogatories as to the names of its stockholders and the amount of stock held by each stockholder was a 'suit in the nature of a bill of discovery,' and a judgment ordering said land bank, by its officers, agents, servants and employees, to answer in writing and under oath the written interrogatories accorded with usages of equity, citing Art. 2002, R.C.S., and National Compress Co. v. Hamlin (Leaverton v. Chapman), 114 Tex. 375, 269 S.W. 1024.

Rule 737, T.R.C.P., promulgated in 1939, contains the wording of Article 2002 and adds another sentence thereto. Said Rule reads as follows:

'All trial courts shall entertain suits in the nature of bills of discovery, and grant relief therein in accordance with the usages of courts of equity. Such remedy shall be cumulative of all other remedies. In actions of such nature, the plaintiff shall have the right to have the defendant examined on oral interrogatories, either by summoning him to appear for examination before the trial court as in ordinary trials, or by taking his oral deposition in accordance with the general rules relating thereto.'

It is appellant's view that the last sentence of the rule controls and that plaintiffs would only have the right to have the defendant examined on oral interrogatories or to take defendant's oral deposition in accordance with the general rules relating thereto, and that Rule 737 excludes the examination of defendant by means of answering written interrogatories.

We think Rule 737, T.R.C.P. should be construed as a whole and should not be given the narrow and restricted construction sought by appellant. It is our view that the first two sentences of Rule 737, which are the same as old Article 2002, should be given the same construction that the Supreme Court of Texas has heretofore given the same and that under that portion of Rule 737written interrogatories are authorized in discovery suits. It is our further view that the rule makers in adding the last sentence to the rule in 1939 intended to enlarge the scope of the rule so as to permit oral interrogatories (as well as oral depositions as outlined in said sentence) in addition to written interrogatories which the Supreme Court of Texas has held to be authorized by the first two sentences of the rule and did not intend to exclude from the rule the well-settled court constructions of old Article 2002 that written interrogatories were authorized in discovery suits. Appellant's first point is overruled.

We also hold that the trial court did not err in overruling defendant's plea to the jurisdiction alleging that there was a misjoinder of parties plaintiff. See Tomlinson v. Higginbotham Bros. & Co., Tex.Civ.App., 229 S.W.2d 920, 923, where actions were brought by four separate and independent lien holders as plaintiffs, in which the court stated:

'Under Section (a) of Rule 40, Texas Rules of Civil Procedure, it is permissible to join as plaintiffs 'all persons' asserting 'right to relief * * * arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action.' Plaintiffs were seeking to foreclose their respective liens upon the same property. The liens arose by reason of a series of transactions in which common questions of law and fact were involved. We cannot see how the defendant was injured in any way by the joinder of the plaintiffs.'

'Under the policy of our law to avoid a multiplicity of suits, the courts are liberal in allowing parties to be joined when the joinder cannot result in prejudice.' 32 Tex.Jur. p. 34.

Under the record in the case at bar we cannot see how the defendant was injured in any way by the joinder of plaintiffs which we think was a proper permissible joinder under Rule 40(a) T.R.C.P. Appellant's second point is overruled.

We also hold that the two plaintiff foreign corporations in this cause were not required to plead or prove that they had a permit to do business in Texas to maintain the suit at bar against defendant since it is clear from the record in this case that plaintiff corporations were seeking to collect debts due them by defendant arising out of business transactions in interstate commerce. See the following authorities: Article 1529, Vernon's Annotated Civil Statutes; Article 8.01 Texas Business Corporation Act, V.A.T.S.; Gholson v. Wickwire Spencer Sales Corp., Tex.Civ.App., 66 S.W.2d 814; Hampshire Silver Co. v. Hill, Tex.Civ.App., 244 S.W.2d 520. In the...