Southwestern Peanut Growers Ass'n v. Womack

• Decision Date: 25 February 1944
• Docket Number: No. 2439.,2439.
• Citation: 179 S.W.2d 371
• Parties: SOUTHWESTERN PEANUT GROWERS ASS'N v. WOMACK et ux.
• Court: Texas Court of Appeals

179 S.W.2d 371

SOUTHWESTERN PEANUT GROWERS ASS'N v. WOMACK et ux.

No. 2439.

Court of Civil Appeals of Texas. Eastland.

February 25, 1944.

Rehearing Denied April 7, 1944.

Appeal from District Court, Taylor County; M. S. Long, Judge.

Suit by J. W. Womack and wife against Rufus Stokes and wife, Southwestern Peanut Growers Association, and another, wherein the Southwestern Peanut Growers Association filed a plea of privilege. From a judgment overruling plea of privilege, the defendant Southwestern Peanut Growers Association appeals.

Reversed and remanded with directions.

Turner & Seaberry, of Eastland, for appellant.

Stinson, Hair, Brooks & Duke, of Abilene, for appellees.

FUNDERBURK, Justice.

In this case the plaintiffs below were J. W. Womack and wife, Ella Womack. Plaintiffs' petition named as defendants Rufus Stokes and wife, Grace Stokes, residents of Jones County, Texas; the Fisher County Bonded Peanut Warehouse, and Southwestern Peanut Growers Association. There are no allegations to show whether "The Fisher County Bonded Peanut Warehouse" or "Southwestern Peanut Growers Association" is a trade name of an individual or firm, or the name of an unincorporated association, or a corporation. The allegations are perhaps sufficient to show that whatever they are, the place of residence of the former is Fisher County and of the latter Eastland County.

Plaintiffs' petition shows the purpose to allege a number of different causes of action—two or three or more asserted against Rufus Stokes and wife, and one or two against "Fisher County Bonded Peanut Warehouse" and "Southwestern Peanut Growers Association."

Southwestern Peanut Growers Association duly filed a plea of privilege which, being controverted and the issues of venue tried, judgment was rendered overruling the plea of privilege. Said defendant has appealed.

Appellant predicates its appeal on one point as follows: "In this suit for a debt and foreclosure of a mortgage lien against Stokes and for conversion against Appellant the court erred in overruling Appellant's plea of privilege on the ground that the notes executed by Stokes were payable in Taylor County."

If the point as stated is supported by the record, then, undoubtedly, we think it is good under the authority cited by appellant. Boydston v. Morris, 71 Tex. 697, 10 S.W. 331; Bank of Carbon v. Coxe Mercantile Co., Tex.Civ.App., 241 S.W. 602; Wool Growers' Central Storage Co. v. Edwards, Tex.Civ.App., 10 S. W.2d 577; Matthews v. Hedley Motor Co., Tex.Civ.App., 47 S.W.2d 661; Ft. Worth Well Machinery & Supply Co. v. Callihan, Tex.Civ.App., 62 S.W.2d 1005; Williams v. First Nat'l Bank of Midland, Tex.Civ. App., 115 S.W.2d 1209.

Appellees counter with a point as follows: "Plaintiffs' pleading and proof showing this is a suit on promissory notes payable at Abilene, Texas, executed by Defendants Rufus Stokes and Grace Stokes for a foreclosure of chattel mortgage lien, also landlord's lien securing payment of said debts and a foreclosure of mortgage and landlord's lien against all of the defendants under Art. 1995, subdivision 5 and subdivision 29a of Revised Statutes [Vernon's Ann.Civ.St. art. 1995, subds. 5, 29a], the trial court did not err in overruling appellants' plea of privilege." (Italics ours.) If this "Counter Point" is supported by the record, it is apparently sustained by decisions relied upon, notably Pioneer Building & Loan Ass'n v. Gray, 132 Tex. 509, 125 S.W.2d 284, and Ulmer v. Dunnigan Tool & Supply Co., Tex.Civ. App., 163 S.W.2d 901. It, therefore, results that, assuming the correctness, or authoritativeness, of said last mentioned decisions, we are only called upon to determine which of the two opposing propositions does the record sustain?

Both propositions agree—the one impliedly and the other expressly—that the exceptions to the general rule of venue here involved are Exceptions 5 and 29a. We shall proceed upon the assumption that this agreed fact is true. According to appellant's point, the suit, insofar as it is a suit for the foreclosure of liens, is against Stokes and wife only. According to appellees' point, the suit, insofar as it is a suit for foreclosure of liens, is against all the defendants, including appellant.

An instrument not filed, apparently attached to the controverting plea, is denominated "Second Amended Original Petition." The transcript shows "Plaintiff's First Amended Original Petition" as the only petition filed. No point being made of it, we shall treat the instrument attached to the Controverting Plea as plaintiffs' petition.

It was not alleged that appellant had possession of any of the peanuts. It was not alleged that appellant was asserting any present claim to them. No facts were alleged from which it would appear that it was necessary to have a decree of foreclosure against appellant in order to render effective a foreclosure decree if any against Stokes and wife or Fisher County Bonded Peanut Warehouse. A cause of action was alleged against appellant for conversion of the peanuts. Part of the prayer for relief was "for judgment against the Defendants Fisher County Bonded Peanut Warehouse and the Southwestern Peanut Growers Association, Gorman, Texas, jointly and severally, for the value of the peanuts so converted by them, and each of them, from the Defendant, Rufus Stokes * * *." The only thing in any of the pleadings indicating an intention to assert a cause of action against appellant for the foreclosure of liens is that part of the prayer for relief praying "for foreclosure of the mortgage, as well as landlord's lien against all of said defendants * * *." This is not an alternative prayer, but merely follows, as an addition thereto, the part of the prayer, above set out, appropriate to an action for conversion.

Foreclosure simply means a proceeding in court, or out of court, when provided for by a valid contract, to subject the property (or part thereof) covered by a lien to the payment of the debt secured by the lien. It has the effect of extinguishing all right, title or interest, if any, of the defendants in the property. If, therefore, all of the property subject to the lien has been converted by third parties (as in this case alleged), it would seem to require no citation of authority to support the proposition that Plaintiffs cannot have both a foreclosure of the lien and an award of damages (measured, as the law would direct, by the value of the property) for conversion of the property. They cannot, by foreclosure, extinguish the title or interest of the alleged conversioner in the property and appropriate the property in payment of the debt and also at the same time have an award of damages equal to the value of the property. An award of damages for conversion impliedly confirms title in the conversioner. The two remedies, co-existing as they do when and if the alleged conversioner still has possession of the property, are inconsistent. If both be asserted, one must be alternative to the other and the judgment must be rendered upon one or the other, but not both. Our conclusion is, therefore, that the mere prayer for a foreclosure, absent the allegation of fact or facts to show the existence of a cause of action for foreclosure against appellant, but, on the contrary, excluding the availability of such cause of action, if any, by the positive assertion of the inconsistent cause of action for damages for conversion, does not show that appellant is really a defendant, insofar as the suit is one for foreclosure.

If we are right in this view, then it follows that in our opinion the record supports the point urged by appellant, rather than the one urged by appellees, and determines the judgment to be rendered.

If we are wrong in the conclusion that the clause in the prayer for relief, not applicable to any of the facts alleged in the petition, should be disregarded, and that when so disregarded, the plaintiff's pleading shows that the suit in reality is not one for the foreclosure of liens, then the question next arises, what is the evidence that appellant is a necessary party to the suit for foreclosure as brought against the other defendants, the venue as to whom, because of the joined action for debt, is maintainable in Taylor County? This court has taken the position supported we think, by decisions of the Supreme Court, particularly Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1302, that the "best and all-sufficient evidence" of whether a named defendant is a necessary party under Exception 29a is the plaintiff's petition. Reed v. Walker, Tex.Civ.App., 158 S.W.2d 894, 898; Crawford v. Sanger, Tex.Civ.App., 160 S.W.2d 115, 119; Moreland v. Hawley Independent School District, Tex.Civ. App., 163 S.W.2d 892; Ulmer v. Dunnigan Tool & Supply Co., supra. This view finds additional support in the Gray case, wherein the court, commenting approvingly upon Commonwealth Bank & Trust Co. v. Heid Bros., 122 Tex. 56, 52 S.W.2d 74, said [132 Tex. 509, 125 S.W.2d 286]: "It was further held that, looking to the nature of the case as disclosed by the petition, the nonresident defendant who filed his plea of privilege was a necessary party within the meaning of exception 29a." (Italics ours.)

If the fact of whether or not appellant was a necessary party to the suit is a fact...