Tempelmeyer v. Blackburn

• Decision Date: 24 November 1943
• Docket Number: No. 8158.,8158.
• Citation: 175 S.W.2d 222
• Parties: TEMPELMEYER et al. v. BLACKBURN.
• Court: Texas Supreme Court

175 S.W.2d 222

TEMPELMEYER et al. v. BLACKBURN.

No. 8158.

Supreme Court of Texas.

November 24, 1943.

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

Action by Elma V. Tempelmeyer and others against D. E. Blackburn and others

on a bond. Named defendant's plea of privilege and plea of res judicata were sustained, and plaintiff appeals. On certified question from the Court of Civil Appeals.

Question answered.

For subsequent opinion see 176 S.W.2d 582.

Eades & Eades, of Dallas, for appellants.

Golden, Croley & Howell, of Dallas, for appellee.

HICKMAN, Commissioner.

This case is before us on certificate from the Court of Civil Appeals at Dallas, from which we quote as follows:

"On original submission, the judgment of the trial court, sustaining the plea of privilege and of res adjudicata urged by appellee, Blackburn, was affirmed in a majority opinion written by Associate Justice Young; Associate Justice Looney filed a dissenting opinion. Motion for rehearing by the appellants is now pending.

"* * *

"Appellee, a resident of Victoria County, was one of the sureties on the bond of F. H. Tempelmeyer, permanent guardian of the appellants, the guardianship proceedings were pending in the Probate Court of Grayson County; F. H. Tempelmeyer, having died in 1934, was succeeded by Melvin E. Tempelmeyer. In October, 1941, upon petition of appellants, an accounting by the Probate Court of Grayson County was had and an order made relative to the liability of these guardians, and the suit on its merits was for the recovery of the amounts so established against Melvin E. Tempelmeyer and his sureties, the Trinity Universal Insurance Company and J. V. Conaster, also against appellee, Blackburn, T. B. Ireland, and J. A. Dowling, sureties on the bond of F. H. Tempelmeyer, guardian, deceased.

"Suit on these bonds was originally filed by appellants in the District Court of Dallas County; all other parties other than the corporate surety resided in Grayson County, except D. E. Blackburn, who resided in Victoria County. In due time, Blackburn, filed a plea of privilege to be sued in the county of his residence; similarly, Melvin E. Tempelmeyer, guardian, also the other sureties, filed pleas of privilege to be sued in Grayson, the county of their residence. Controverting affidavits were filed by appellants and trial was had, but before the court announced his decision, appellants took a non-suit as to appellee, Blackburn, and judgment was accordingly entered, dismissing him from the Dallas County suit. Venue of the case as to other defendants was changed and the cause transferred to the District Court of Grayson County.

"After the case reached the docket of the Grayson County District Court, appellants filed a first amended original petition, alleged the same cause of action as originally, and again impleaded appellee, D. E. Blackburn. After being served, he promptly filed a plea of privilege and of res adjudicata, claiming that, by reason of the prior proceedings had in the District Court of Dallas County, venue as to him of the suit filed in Grayson County, between same parties, involving same subject-matter, was fixed in the court of proper jurisdiction of Victoria County. The court sustained these pleas and transferred the case, as to appellee, to the District Court of Victoria County. From this judgment, appellants appealed, with the result as heretofore stated.

"Question

"In view of the status of the case, we think a proper disposition of the question of venue involved depends upon the Supreme Court's answer to the following question:

"`Did the action of appellants in taking a non-suit as to appellee, Blackburn, and dismissing him from the suit pending in the District Court of Dallas County, after the filing of his plea of privilege and the controverting affidavit by appellants, but before the court announced its decision on the question of venue involved, have the effect of adjudicating in favor of appellee the question of venue of the suit subsequently filed by appellants against him in the District Court of Grayson County, and of fixing venue thereon in the District Court of Victoria...