State Nat. Bank v. Lancaster

• Decision Date: 30 March 1921
• Docket Number: (No. 6580.)
• Citation: 229 S.W. 883
• Parties: STATE NAT. BANK OF SAN ANTONIO et al. v. LANCASTER et al.
• Court: Texas Court of Appeals

229 S.W. 883

STATE NAT. BANK OF SAN ANTONIO et al. v. LANCASTER et al.

(No. 6580.)

Court of Civil Appeals of Texas. San Antonio.

March 30, 1921.

Rehearing Denied April 13, 1921.

Appeal from District Court, Dimmit County; W. D. Love, Special Judge.

Action by B. F. Lancaster and others against the State National Bank of San Antonio and others. Judgment for plaintiffs, and defendants appeal. Reversed and rendered.

Kampmann, Burney & Browne, of San Antonio, for appellants.

Vandervoort & Johnson, of Carrizo Springs, for appellees.

FLY, C. J.

On November 8, 1920, B. F. Lancaster, M. D. Ern, and M. Doscher instituted a proceeding in the district court of Dimmit county, in which they sought a construction of a certain pamphlet or booklet issued by one G. Denton, under the name of "Denton Colony Company," in which was contained a description of a tract of 32,000 acres of land in Dimmit county, which he desired to sell, agreeing in said booklet that he would donate $30,000, which he would deposit in a solvent bank in San Antonio to be held in trust and paid over to the first railroad company that would build a railroad to a town to be located on the land called Dentonio, that if no railroad was built, as desired, in 10 years, the money should be delivered to three trustees to be chosen by purchasers of the land who might own it at the expiration of the 10 years, to be used in the interest of such owners. It was alleged that the land was sold in farm lots, that the petitioners are some of the purchasers, that the money was deposited with the State Bank & Trust Company, but is now in the State National Bank of San Antonio; that the 10 years have expired and no railroad has been built; that no provision is made as to who shall call the election, although it is provided in the booklet that it "shall be held under the laws of the state of Texas." The prayer was:

"That your honor will by order of court construe said provision as specified in the fourth paragraph and copied in the fifth paragraph of this petition, and therein prescribe the procedure of said elections as outlined above, to the end that said three trustees may be `elected by the qualified voters who are property owners at that time in the Denton Colony lands,' and that said three trustees may `use the thirty thousand dollars for the benefit of the owners of the Denton Colony lands, whatever manner a majority of the voters may by a fair election decide, which election shall be made under the laws of the state of Texas for that purpose.'"

A notice of the proceeding was published in a county paper for four weeks. The district judge ordered the issuance of the notice, and set the matter down for a hearing on December 15, 1920. On December 29, 1920, B. F. Lancaster and those joined with him applied to the district judge in and for Dimmit county for a writ of injunction to restrain the prosecution of certain suits pending in the Forty-Fifth judicial district of Bexar county—

"wherein and whereby and in each suit they have alleged the same cause of action and pray for the same relief, also for costs and attorney's fees, whereby the defendants have usurped plaintiffs' functions and prerogatives by assuming to be plaintiffs and by making plaintiffs herein the defendants in their alleged cause of action."

The application for injunction failed to disclose the names of the usurpers of the cause of action in Bexar county except in so far as the style of the suit gives as defendants the "State National Bank et al." However, the injunction was granted, and notice issued not only to the bank named, but also to the State Bank & Trust Company, which was not named in the application. They responded, however, and, after having plea of privilege overruled, sought to have the injunction dissolved. This was denied by the court,...