Sanders v. Camp

Decision Date22 September 1941
Docket NumberNo. 5330.,5330.
Citation154 S.W.2d 306
PartiesSANDERS v. CAMP et al.
CourtTexas Court of Appeals

Appeal from District Court, Wheeler County; W. R. Ewing, Judge.

Suit by J. W. Sanders against D. C. Camp and another to foreclose a judgment lien on certain lands, wherein defendants filed pleas of privilege. The trial court sustained a general demurrer to the plaintiff's controverting affidavits and ordered the case to be transferred to Collingsworth county, and the plaintiff appeals.

Affirmed.

Sanders & Scott, of Amarillo (A. P. Smith, of Amarillo, of counsel), for appellant.

R. H. Cocke and Luther Gribble, both of Wellington, for appellees.

FOLLEY, Justice.

This suit was filed in Cause No. 3241 in the District Court of Wheeler County by the appellant, J. W. Sanders, against the appellees, D. C. Camp and Rama Camp, a feme sole, seeking to foreclose a judgment lien upon certain lands in Collingsworth County. Each of the appellees filed a plea of privilege to be sued in Collingsworth County, his place of residence. The appellant controverted such pleas and sought to retain the venue in Wheeler County as against D. C. Camp by reason of subdivision 5 of article 1995, Vernon's Annotated Civil Statutes, and as against Rama Camp by reason of subdivision 29a of the same article. The trial court sustained a general demurrer to appellant's controverting affidavits and, upon sustaining the respective pleas of privilege, ordered the case transferred to Collingsworth County. From such action this appeal is prosecuted.

From the controverting affidavits of the appellant, and from his original petition which was made a part of his controverting affidavits, it appears that on August 9, 1932, in Cause No. 2178 in the District Court of Wheeler County the Canadian State Bank recovered judgment against D. C. Camp and another for $6,083 with foreclosure of a deed of trust lien upon certain lands. The suit in such cause was upon an indebtedness evidenced by an instrument in writing payable in Wheeler County, which indebtedness D. C. Camp had assumed in purchasing the lands upon which the foreclosure was ordered. After the sale of such land under the foreclosure there remained a deficiency judgment of $5,095.80 which was purchased by the appellant. Abstract of such judgment was duly filed, indexed and recorded in the Abstract of Judgment Records of Collingsworth County.

Thereafter, on October 26, 1940, this suit was filed by the appellant in Wheeler County seeking to foreclose his judgment lien upon certain lands in Collingsworth County. The appellees were alleged to have been residents of Collingsworth County. It was further alleged that D. C. Camp was the record owner of such lands and had been at the time the lien attached. In the alternative appellant alleged that, if the property had been transferred to Rama Camp, such conveyance by D. C. Camp was for the purpose of defrauding his creditors and that D. C. Camp was the real and beneficial owner of the lands. The appellant prayed for foreclosure against both of the appellees.

The theory of the appellant is that under subdivision 5 of the above article venue lies in Wheeler County as against D. C. Camp because this is a suit to enforce a judgment lien which judgment was obtained in a former suit based upon a written contract performable in Wheeler County. Although it is conceded this action is not a suit upon the original contract where the venue was fixed in Wheeler County, in view of the language of subdivision 5 relative to suits "upon or by reason of such obligation" the appellant contends that the venue of this suit is also in Wheeler County because it is "by reason of" the former written obligation. We are not in accord with appellant's contention in this respect. We think the question has been foreclosed against him in Blocker et al. v. Commercial Nat. Bank of Uvalde, Tex.Civ.App., 295 S.W. 341, and in B. F. Avery & Sons Plow Co. v. Mayfield, Tex.Civ.App., 111 S.W.2d 1134. Although each of those cases involved a new suit in the form of a bill of discovery based upon a judgment recovered in a former suit where, as in the instant case, the venue was fixed by written agreement, we think the principle involved is identical with that of the case at bar. In disposing of a contention similar to the appellant's herein the court in the Blocker case said (page 342 of 295 S.W.): "It is true, as appellee contends, that in the original suit the venue as to the defendants was fixed in Uvalde county by virtue of the contractual obligation of appellants to pay the note in that county, and this action is collateral to the original action. But it is not an ancillary proceeding in that suit; it is a separate, distinct action, instituted, under special...

To continue reading

Request your trial
2 cases
  • Lichtenstein v. F & M Nat. Bank of Kaufman
    • United States
    • Texas Court of Appeals
    • November 1, 1963
    ...the judgment. By the terms of the judgment no particular venue was fixed. Therefore Subdivision 5 is not applicable. Sanders v. Camp, Tex.Civ.App., 154 S.W.2d 306. See also Blocker v. Commercial Nat. Bank of Uvalde, Tex.Civ.App., 295 S.W. 341 and B. F. Avery & Sons Plow Co. v. Mayfield, Tex......
  • Loyd W. Richardson Const. Corp. v. Corpus Christi State Nat. Bank, 887
    • United States
    • Texas Court of Appeals
    • August 29, 1974
    ...Weaver v. Acme Finance Company, 407 S.W.2d 227 (Tex.Civ.App.--Corpus Christi 1966, n.w.h.). The appellant relied upon Sanders v. Camp, 154 S.W.2d 306 (Tex.Civ.App.--Amarillo 1941, n.w.h.). In Sanders, the suit was to foreclose a judgment lien which was originally obtained in Wheeler County ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT