Texas Land Drilling Co. v. First State Bank & Trust Co. of Port Lavaca

Decision Date11 September 1969
Docket NumberNo. 476,476
Citation445 S.W.2d 571
PartiesTEXAS LAND DRILLING COMPANY, Inc., et al., Appellants, v. FIRST STATE BANK & TRUST COMPANY OF PORT LAVACA, Texas, et al., Appellees. . Corpus Christi
CourtTexas Court of Appeals

Levey & Goldstein, Jay Sam Levey, San Antonio, for appellants.

Rhodes & Garner, George F. Rhodes, Port Lavaca, Sorrell, Anderson & Porter, James R. Sorrell, Jr., Corpus Christi, for appellees.

OPINION

SHARPE, Justice.

This suit was brought by appellees, First State Bank of Port Lavaca, Texas and J. E. Hillier, against appellants, Texas Land Drilling Company, Inc., and Ken Clark, for possession of a portion of certain personal property, consisting primarily of an oil well drilling rig and associated equipment, upon which the Bank had foreclosed a mortgage and sold at private sale to Hillier. Alternatively, in the event neither appellee was found entitled to such possession, appellee Bank sought recovery on two promissory notes each dated August 28, 1967, in the amounts of $10,000.00 and $14,160.36, and for foreclosure on the property securing the same.

The trial court overruled appellants' motion to dismiss one of the parties plaintiff or to sever the causes of action asserted by them. The court also overruled appellants' pleas of privilege to be sued in Jim Wells County, Texas, but no separate appeal was taken from that order. Subsequently, the appellants filed an answer and cross-action asserting the invalidity of the foreclosure sale from the Bank to Hillier and praying for recovery of the mortgaged property or its value.

After non-jury trial the court rendered judgment that the sale from appellee Bank to appellee Hillier was valid; that title to the personal property was in Hillier; that Hillier had been in possession of the property described in the judgment excepting four items, and that Hillier have judgment for possession of them. The judgment further provided that appellant Ken Clark (defendant and cross-plaintiff below) recover escrowed funds from the Bank in the amount of $2,336.10; that the costs be equally divided between appellants and appellees; that all other relief prayed for not specifically granted was denied; and that appropriate writs and process for the enforcement of the judgment be granted. Findings of fact and conclusions of law were not filed.

Appellants assert five points of error. We will first consider appellants' point two which complains of the trial court action in overruling appellants' pleas of privilege to be sued in Jim Wells County, Texas. The record reflects that the trial court heard appellants' pleas of privilege on February 2, 1968 and overruled them on February 9, 1968. Appellants did not perfect an appeal from that order under Rule 385, Texas Rules of Civil Procedure. Trial on the merits was had on May 15, 1968 at a subsequent term of court. Appellees correctly contend that this Court is without jurisdiction to consider appellants' point two because no appeal was taken from the order overruling the pleas of privilege and the trial was held at a subsequent term of court. Inland Refining Co. v. Robinson, 152 Tex. 289, 256 S.W.2d 843 (1953); Wichita Falls & S.R. Co. v. McDonald, 141 Tex. 555, 174 S.W.2d 951 (1943). Appellants' point two is overruled.

Appellants' point one reads as follows:

'Appellees having improperly joined as parties plaintiff, since one sued for possession of personal property and the other, in the alternative, sued on a note and for foreclosure of a security agreement, the court erred in overruling appellants' motion to dismiss one of the parties plaintiff or to sever the causes of action.'

Appellants have grouped their points one and two for briefing, but their principal argument under their point one is based upon the contention that the action of the trial court in overruling their motion to dismiss one of the parties plaintiff (appellees here) or to sever the causes of action, which action was not separately appealable, led the trial court into the wrongful overruling of appellants' pleas of privilege complained of under their point two. Appellants particularly say that if the trial court had properly dismissed one of the parties plaintiff or had severed the causes of action, this case could not have been tried in Calhoun County, Texas, but would have had to be tried in Jim Wells County, Texas. Appellants could have urged any appropriate point of error relating to the overruling of their pleas of privilege by the trial court in a separate preliminary appeal, but they failed to take such action. See Duffy v. Crown Central Petroleum Corporation, 366 S.W.2d 956 (Tex.Civ.App., Austin 1963, mand.overr.). We are, therefore, here concerned with appellants' point one as it relates to the trial on the merits and aside from the question of venue.

In their first amended original petition appellees alleged in substance that appellants had defaulted on the notes due to appellee Bank; that the $10,000.00 note was secured by a security agreement and previously by a chattel mortgage on certain property consisting of an oil well drilling rig and related equipment; that the other note in the amount of $14,160.36 was secured by an assignment of accounts receivable; that the Bank foreclosed and sold said personal property securing the $10,000.00 note to appellee Hillier with the acquiescence of appellants; that Hillier was placed in possession of all but a portion of the property and that appellants had failed and refused to give possession of the remainder of the property, which was located in Jim Wells County, to either appellee; that either or both of appellees were entitled to possession as against the appellants. The appellee Bank alleged alternatively that should neither of appellees be entitled to possession, then appellee Bank would be entitled to judgment for its debts and foreclosure of its liens.

Rules 40(a), 48 and 51, T.R.C.P., provides as follows:

'Rule 40. Permissive Joinder of Parties

(a) Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded . Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.'

'Rule 48. Alternative Claims for Relief

A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has regardless of consistency and whether based upon legal or equitable grounds or both.'

'Rule 51. Joinder of Claims and Remedies

(a) Joinder of Claims. The plaintiff in his petition or in a reply setting forth a counterclaim and the defendant in an answer setting forth a counterclaim may join either as independent or as alternate claims as many claims either legal or equitable or both as he may have against an opposing party. There may be a like joinder of claims when there are multiple parties if the requirements of Rules 39, 40, and 43 are satisfied. There may be a like joinder of cross claims or third-party claims if the requirements of Rules 38 and 97, respectively, are satisfied.

(b) Joinder of Remedies. Whenever a claim is one...

To continue reading

Request your trial
1 cases
  • Sud v. Morris
    • United States
    • Texas Court of Appeals
    • March 8, 1973
    ...the plea in abatement and to dismiss plaintiff's suit in this instance. Cf. Texas Land Drilling Co. v. First State Bank & Trust Co., 445 S.W.2d 571, 575 (Tex.Civ.App., Corpus Christi, 1969, error ref. n.r.e.). The judgment of the trial court is reversed and the cause is * See, e.g., Meadow ......

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