Thomas v. Allis, 131

• Decision Date: 18 March 1965
• Docket Number: No. 131,131
• Citation: 389 S.W.2d 109
• Parties: Carl THOMAS, Appellant, v. Lauril M. ALLIS, Appellee.
• Court: Texas Court of Appeals

Page 109

389 S.W.2d 109

Carl THOMAS, Appellant, v. Lauril M. ALLIS, Appellee.

No. 131.

Court of Civil Appeals of Texas, Tyler.

March 18, 1965.

Rehearing Denied April 15, 1965.

Ronald L. Neill, Carrington, Johnson & Stephens, Dallas, for appellant.

William B. West, III, Allen Butler, William M. Ravkind, Clark, West, Keller & Clark, Dallas, for appellee.

MOORE, Justice.

Plaintiff, Lauril M. Allis and her husband, Louis Allis, Jr. formerly resided in Collin County, Texas, where they owned and operated the Rolling Hills Ranch. Louis Allis, Jr. moved to the state of Nevada and thereafter in June, 1963, filed an action for divorce against Mrs. Allis. Both parties appeared in that court and went through a lengthy trial, but for some unexplained reason the judgment in that cause has never been entered. Subsequently, while the matter was still pending in Nevada, Mrs. Allis, as plaintiff, field suit against her husband in the District Court of Collin County, Texas, in Cause No. 26370, styled Allis v. Louis Allis, Jr. and Western Farms, Ltd., a Nevada Corporation, seeking a declaration and adjudication of her interest in and to the Rolling Hills Ranch and the cattle located thereon. That suit was later removed to the United States District Court for the Eastern District of Texas where it is now pending. Shortly after instituting that suit, Mrs. Allis filed the present action for injunction against Carl Thomas only, alleging that: 'Defendant Carl Thomas has been granted authority by Louis Allis, Jr. or Louis Allis, Jr., d/b/a Rolling Hills Ranch, or Western Farms, Ltd., or both of them, to buy and sell cattle for their account and for their benefit. Unless Defendant Carl Thomas is restrained and enjoined from engaging in such transactions he will sell said cattle for the account of Louis Allis, Jr. or Louis Allis, Jr., d/b/a Rolling Hills Ranch, or Western Farms, Ltd., or both of them, or for his own account, and Plaintiff will be deprived of her interest in said cattle. Plaintiff cannot enjoin the Defendants in Cause No. 26370 from selling said cattle because they are not residents of the State of Texas or are outside the territorial limits of the State of Texas and therefore not subject to the jurisdiction of its Courts. * * * Unless Defendant Carl Thomas is restrained from making said sales, he will do Plaintiff irreparable injury, for which, for the reasons stated herein, there is no adequate remedy at law.' Plaintiff's petition makes it clear that her cause of action for injunction is ancillary to Cause No. 26370, wherein she seeks an adjudication of her property rights.

In reply thereto, defendant filed an unsworn answer alleging the granting of an injunction of him alone would not prevent Louis Allis, Jr. or Western Farms, Ltd. from disposing of the cattle and hence would amount to a vain and useless act which would deprive him of his employment and in turn deprive the cattle of attention and care, resulting in harm and damage to the subject matter of the suit.

After a full hearing, the trial court entered an order temporarily enjoining Carl Thomas from selling, attempting to sell, delivering for sale or otherwise removing cattle from the Rolling Hills Ranch pending a final determination of Mrs. Allis's property rights therein, conditioned on the filing of a $5,000.00 bond. It is undisputed that Carl Thomas was employed by Louis Allis, Jr. as foreman of the ranch and had been authorized by Allis to sell cattle at his discretion, deposit the proceeds in the bank, and to draw drafts upon the bank account in payment of his salary in the sum of $300.00 per month and pay other expenses in connection with the operation of the ranch.

Thomas first contends that the judgment should be reversed because, of plaintiff's failure to join necessary parties. He argues that since Louis Allis, Jr. and Western Farms, Ltd. owned an interest in the cattle, their interest would be effected by the suit and they should have been joined as party defendants. He further contends that unless they are joined, the granting of the injunction against him alone would be a futile and useless act and would afford no protection to the plaintiff in that Louis Allis, Jr. or Western Farms, Ltd. could sell the cattle and thus avoid the effect of the injunction. We are not in accord with this view.

The argument would ignore the fact that Mrs. Allis sought to enjoin Thomas not only in his capacity as agent, but also sought to enjoin him individally from selling the cattle and converting the proceeds to his own account. In this respect it cannot be said that the order restraining the threatened conversion amounts to a futile or useless act. The proof shows that the cattle was a part of the community estate of Mrs. Allis and her husband. Thomas admits that he will sell the cattle unless restrained. In addition to requesting that he be restrained in his capacity as an agent, plaintiff sought to prevent him from converting the cattle to his own use and benefit. On order to protect her property rights, plaintiff had a right to seek injunctive relief against Thomas to prevent him from converting her property and in so doing would not be required to join...