Stockyards Nat. Bank v. Maples

• Decision Date: 15 July 1936
• Docket Number: No. 1628-6649.,1628-6649.
• Citation: 95 S.W.2d 1300
• Parties: STOCKYARDS NAT. BANK v. MAPLES.
• Court: Texas Supreme Court

95 S.W.2d 1300

STOCKYARDS NAT. BANK v. MAPLES.

No. 1628-6649.

Commission of Appeals of Texas, Section B.

July 15, 1936.

Certified Questions from Court of Civil Appeals of Eleventh Supreme Judicial District.

Suit by W. I. Maples against the Stockyards National Bank and another. From a judgment overruling the named defendant's plea of privilege, named defendant appealed to the Court of Civil Appeals, which certified certain questions to the Supreme Court.

Questions answered.

M. McCullough, Sr., of Dallas, and L. J. Wardlaw, of Fort Worth, for appellant.

J. L. Alford, of Rising Star, and Robey & Robey, of Eastland, for appellee.

SMEDLEY, Commissioner.

The nature of the cause and the questions to be answered are thus stated in the certificate from the Court of Civil Appeals:

"W. I. Maples filed this suit in a justice court in Eastland County against J. E. Tucker and Stockyards National Bank, a corporation, to recover $190.00 alleged to be due him as pasturage. The bank filed its statutory plea of privilege to be sued in Tarrant County, the county of its domicile. This plea was timely controverted by Maples. One of the exceptional provisions relied upon by him to support the venue in Eastland County was exception 4 of article 1995, R.S.1925, reading as follows: `If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.'

"The petition was sufficient to allege a joint cause of action against Tucker and the bank. Upon the trial of the issues, joined by the plea of privilege and the controverting plea, the evidence was sufficient to establish a cause of action against Tucker, who was shown to be a resident of the precinct in which the suit was instituted. No character of cause of action was shown to exist against the bank, but, to the contrary, the evidence affirmatively disclosed that the plaintiff had no cause of action against it. The plea of privilege was overruled, and from the order overruling same appeal was perfected to this court. Upon the original hearing, by a divided court, we reversed the judgment of the trial court, and ordered the venue of the suit as to the bank changed to Tarrant County. The views entertained by Associate Justice Funderburk differed from those of the majority, and he filed a dissenting opinion. These opinions accompany this certificate, and reflect our different views on the question involved.

"Upon the foregoing statement we certify to your court the following questions:

"1st. Where, in a suit against two defendants residing in different counties brought in the county of the residence of one of them, the petition alleges a joint cause of action against both of them, and the non-resident defendant files his plea of privilege to be sued in the county of his residence, and where venue is sought to be sustained under exception 4, art. 1995, is it incumbent upon the plaintiff, in order to sustain the venue as laid, to prove a cause of action against the non-resident defendant?

"2nd. Under the conditions set forth in the next preceding question, would the plaintiff establish his right to maintain venue where laid by alleging a joint cause of action against the two defendants and making proof of a cause of action against the resident defendant?

"3rd. If question No. 2 is answered in the affirmative, would that conclusion be altered if the evidence upon the hearing of the plea of privilege affirmatively disclosed that the plaintiff had no cause of action, either joint or several, against the nonresident defendant?"

The two carefully prepared opinions accompanying the record evidence painstaking examination and consideration of the authorities bearing upon the questions certified, and they have been most helpful in the investigation and decision of the case. The majority opinion written by Judge Leslie expresses the conclusion that the burden is upon the plaintiff seeking to maintain venue under exception 4 of article 1995, after the filing of a plea of privilege by the defendant who is not a resident of the county in which the suit is filed, not only to plead a proper cause of action both against the resident defendant and the nonresident defendant and to prove a cause of action against the resident defendant, but also to prove a cause of action against the nonresident defendant. This conclusion is supported by several decisions of the Courts of Civil Appeals and by expressions contained in two opinions by the Commission of Appeals and in a number of opinions by the Courts of Civil Appeals.

The conclusion stated in Judge Funderburk's dissenting opinion is that: "Proof that a named defendant is in fact a resident of the county where the suit is pending and that plaintiff has a cause of action against him, together with proof of the nature of the case which plaintiff's pleadings supply, constitutes full proof of every fact necessary to show that the case comes within exception 4." His opinion, with which we agree, is that it is not incumbent upon the plaintiff, in order to overcome the effect of the plea of privilege, to prove a cause of action against the nonresident defendant.

In Compton v. Elliott, 126 Tex. ___, 88 S.W.(2d) 91, it is held that the venue facts, which a plaintiff desiring to sue a defendant outside the county of his domicile must allege and prove, if the defendant asserts his privilege, are those stated in the particular exception that is applicable or appropriate to the character of suit alleged in the plaintiff's petition. The language of exception 4 under consideration in the instant case is: "If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides." This language by its terms names as the venue facts to be alleged and proven by the plaintiff the residence of one of the defendants in the county where the suit is pending and a suit brought against two or more defendants.

The first of these two venue facts, that one of the defendants resides in the county where the suit is pending, must be proven by affirmative evidence upon the hearing. Proof of it is not made by, or by the introduction of, the allegations of the petition or of the controverting affidavit. The other of the two venue facts named by the terms of exception 4, that is, that the suit is brought against two or more defendants, pertains to the nature of the suit. The reasonable inference is that a proper suit against two or more defendants is meant, that is, a suit in which the defendants are properly joined. It is essential that a plaintiff seeking to obtain the benefit of exception 4 allege in his petition a joint cause of action against the resident and nonresident defendants, or a cause of action against the resident defendant so intimately connected with the cause of action alleged against the nonresident defendant that the two may be joined under the rule intended to avoid a multiplicity of suits. Mathonican v. Scott & Baldwin, 87 Tex. 396, 28 S.W. 1063, 1065; Cobb v. Barber, 92 Tex. 309, 47 S.W. 963; Richardson v. D. S. Cage Company, 113 Tex. 152, 156, 252 S.W. 747.

Proof that the suit is of such nature is supplied by the plaintiff's petition, for it, as so often has been said, is "the best and all-sufficient evidence of the nature of the action." Oakland Motor Car Co. v. Jones (Tex.Civ.App.) 29 S.W.(2d) 861, 865; Yates v. State (Tex.Civ.App.) 3 S.W.(2d) 114; Commercial Standard Insurance Co. v. Lowrie (Tex.Civ.App.) 49 S.W.(2d) 933; American Fruit Growers v. Sutherland (Tex.Civ.App.) 50 S.W.(2d) 898.

If the rule announced in Compton v. Elliott, above referred to, were strictly applied to exception 4, it seems that a plaintiff would make sufficient proof to overcome the effect of the plea of privilege if he proved by affirmative evidence the fact of the residence of one of the defendants in the county and by the allegations of his petition the proper nature of the suit. But, as said by Judge Leslie in Caprito v. Weaver (Tex.Civ.App.) 77 S.W. (2d) 595, another venue fact which the plaintiff is required to plead and prove has been added to exception 4 by judicial construction. It is that the plaintiff to prevent the change of venue must also plead and prove that he has in fact a cause of action against the resident defendant.

This construction was given to the statute in Richardson v. D. S. Cage Company, 113 Tex. 152, 157, 252 S.W. 747, 749, where Judge German, writing the opinion adopted by the court, said: "In a case, as here, where the plaintiff attempts to allege a cause of action against one defendant, relying upon the existence of that cause of action as a basis to maintain his...