Ulmer v. Dunigan Tool & Supply Co.
Decision Date | 22 May 1942 |
Docket Number | No. 2269.,2269. |
Parties | ULMER et al. v. DUNIGAN TOOL & SUPPLY CO. |
Court | Texas Court of Appeals |
Appeal from District Court, Stephens County; B. H. Atchison, Judge.
Suit by the Dunigan Tool & Supply Company against M. C. Ulmer, Harry W. Black, and others, to recover an indebtedness from Harry W. Black, and against M. C. Ulmer and others, to foreclose liens in favor of the plaintiffs against certain oil, gas and mineral interests and personalty. From an order overruling pleas of privilege of M. C. Ulmer and others to be sued in the counties of their residence, they appeal.
Judgment affirmed.
Richard S. Brooks, of Midland, for appellants.
Harrell & Bowers, of Breckenridge, for appellees.
This is an appeal from an order overruling pleas of privilege where venue of the suit in Stephens County was claimed under subds. 5 and 29a, art. 1995, R.C.S. of Texas, Vernon's Ann.Civ.St. art. 1995, subds. 5, 29a.
Dunigan Tool & Supply Company instituted this suit in Stephens County, Texas, against Harry W. Black, a nonresident of Texas, M. C. Ulmer, Alva W. Butler and husband, John P. Butler, who reside in Midland County, and Madeline Martin and husband, Charles Martin, who reside in Jasper County. The suit was brought by appellee against Harry W. Black to recover an indebtedness which he is alleged to have expressly contracted in writing to pay in Stephens County. The indebtedness was evidenced by a promissory note stipulating for payment "at the office of Dunigan Tool & Supply Company, Breckenridge, Texas." So did the sales tickets for goods sold him.
Three appellants claimed privilege of being sued in Midland County, and two of being sued in Jasper County. The relief sought against appellants Ulmer, the Butlers and Martins is the foreclosure of liens in favor of the plaintiff and alleged to exist against certain oil, gas and mineral interests and personal property situated in Loving County, Texas. It is alleged that the appellants are subsequent purchasers of the property encumbered with said liens. That they are in possession of the same and that they refuse to surrender the same to appellee.
Other facts are in substance, as follows: Mrs. A. S. Chapman, joined by her husband, made a contract August 5, 1939 with H. M. White to execute to him oil and gas leases on her lands in Loving County. September 11, 1939, White conveyed to R. O. Moorehead an undivided one-half interest in that contract which contemplated the development of the oil, gas and mineral resources in the land and the payment to her of the usual 1/8th royalty. September 18, 1939, Moorehead and White assigned to Karl C. Portz, Sr. their interest in said contract, and the Chapmans thereafter executed mineral leases in pursuance of said contract. The Tool Company began to furnish material and equipment for the lease and oil well about September 20, 1939, and continued to do so until about December 31, 1939. Liens for such material attached and were preserved by registration.
May 8, 1940, Portz, by deed of general warranty, conveyed to Alva W. Butler and Madeline Martin (appellants) an undivided 1/32nd interest in the lessee's 7/8ths working interest, subject, however, to the overriding royalty interest of White and Moorehead. On May 8, 1940, said Portz by like deed conveyed to M. C. Ulmer (another appellant) an undivided 3/32nd interest in the lessee's 7/8ths working interest in said Chapman lease, subject to the overriding interest of White and Moorehead, reserved therein.
Some months after these assignments, Portz, on August 14, 1940, executed an assignment to Dunigan Tool & Supply Company, by which instrument he conveyed to them his remaining interest in the Chapman lease. By that instrument he secured by lien the payment of said note. As stated, the other elements of the suit are evidenced by the sales tickets contracting in writing to pay in Stephens County.
The appellants were subsequent purchasers of an interest in the leasehold estate and in possession of the leasehold estate and personal property covered by the lien sought to be foreclosed. The appellee does not disagree with appellants' statement of the nature and results of the suit. Clarifying the issues of the case the appellants frankly state:
Appellants' statement under their first proposition is in part:
Since by appellants' admissions and the undisputed testimony the suit is venuable in Stephens County, Texas, as to Harry W. Black, under exception 5 to the general venue statute, that question is settled and need not be further considered.
Doubtless appellants' admission or concession to the effect that "appellants do not seek to reopen the question of whether or not a taker subject to a lien is such a necessary party as is contemplated by this statute but concede that the later authorities determine that question in favor of the appellee" is based upon the opinion of our Supreme Court in Pioneer Building & Loan Ass'n v. Gray, 132 Tex. 509, 125 S.W.2d 284, and numerous authorities following the same, and others applying like principles: Pierson v. Pierson, 136 Tex. 310, 150 S.W.2d 788; Hamilton v. Federal Land Bank, Tex.Civ.App., 125 S.W.2d 1088; Boettcher v. Federal Land Bank, Tex.Civ. App., 142 S.W.2d 272; Beckham v. Pantex Pressing Mach., Tex.Civ.App., 135 S.W.2d 188; Biggs v. Southland Life Ins. Co., Tex. Civ.App., 150 S.W.2d 149; Smith v. Dozier Const. Co., Tex.Civ.App., 66 S.W.2d 744; Flynn v. Atlas Life Ins. Co., Tex.Civ.App., 81 S.W.2d 772; Jackson v. First Nat. Bank, Tex.Civ.App., 37 S.W.2d 356; Demmer v. Lampasas Auto Co., Tex.Civ.App., 34 S.W. 2d 421; Lind v. Merchants' State Bank, Tex.Civ.App., 16 S.W.2d 385.
Upon the record presented by this appeal and under the authorities cited, especially the Gray case, we are of the opinion that the appellants properly make the admissions and concessions above noted. They are compelled to do so by these authorities which, to our mind, establish beyond question that the appellants are "necessary parties" to this lawsuit under exception 29a to the general venue statute. In other words, by such provision of law, the plaintiff is permitted "to join as parties defendant all persons necessary to the enforcement of his full cause of action." [132 Tex. 509, 125 S.W.2d 287.]
We take from the opinion in the Gray case this further emphatic and significant statement: (Italics ours.)
Upon the point of necessary parties, the alleged facts of the instant case meet the requirements of the opinion in the Gray case (and the other authorities cited) and render the appellants' presence as parties in this suit necessary to the end that the plaintiff obtain the "full relief" contemplated by...
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