V. D. Anderson Co. v. Young
| Decision Date | 11 February 1937 |
| Docket Number | No. 7131.,7131. |
| Citation | 101 S.W.2d 798 |
| Parties | V. D. ANDERSON CO. et al. v. YOUNG, Judge, et al. |
| Court | Texas Supreme Court |
Sanders & Scott and R. G. Windsor, all of Amarillo, for respondents.
This is an original mandamus proceeding instituted directly in the Supreme Court by V. D. Anderson Company, a corporation, and Geo. O. Wilson and E. M. Reichman, its attorneys, against Honorable Towne Young, judge of the Forty-Fourth district court of Dallas county, Tex., to compel him to proceed to trial and final judgment in a certain cause pending in that court. Honorable W. R. Ewing, judge of the Thirty-First district court of Wheeler county, Tex., G. O. McCrohan, Wheeler Cotton Oil Company, a corporation, and Sanders & Scott, and R. G. Windsor, attorneys, are also made parties to this proceeding. The litigation in this court arises out of a conflict of jurisdiction between the two district courts above mentioned in a controversy involving the same subject-matter. The petition with attached exhibits is rather voluminous. We will only make such statement of the record as is necessary to decide the law questions here involved.
On or about August 27, 1934, Western Engineering Company, a corporation, entered into a contract with G. O. McCrohan by the terms of which it agreed to sell to McCrohan certain oil mill equipment and machinery for a total consideration of $2,890, payable $950 in cash and $1,940 in a deferred payment, to be evidenced by a note in the principal sum of that amount bearing 6 per cent. interest, and due on or before April 1, 1935. The contract provided that the equipment and machinery sold should remain the property of the seller until the note for the deferred payment should be paid. On October 25, 1934, McCrohan executed and delivered to Western Engineering Company a note in the principal sum of $1,940, payable in the city of Garland, in Dallas county, Tex. This note was given in consummation of the above contract and in conformity therewith. At the same time the note was given, McCrohan executed and delivered to Western Engineering Company a chattel mortgage on the oil mill machinery and equipment above described. One thousand dollars has been paid on the principal of this note.
After the giving of the above note and mortgage, and on February 13, 1936, Wheeler Cotton Oil Company, a corporation, which seems to have succeeded to the above property, and McCrohan filed suit in the district court of Wheeler county, Tex., against Western Engineering Company and V. D. Anderson Company, both corporations. In that suit the plaintiffs seek judgment canceling the above note and mortgage, and for damages. The basis of the Wheeler county suit is fraud alleged to have been committed by Western Engineering Company and its duly authorized agent who acted for it in selling the oil mill machinery and equipment and securing the original note above described. It is alleged that V. D. Anderson Company is claiming some interest in said note and mortgage given to secure the same, but that it is not an innocent purchaser thereof.
On February 21, 1936, V. D. Anderson Company, a corporation, filed suit in the Forty-Fourth district court of Dallas county, Tex., against G. O. McCrohan and Wheeler Cotton Oil Company. In the Dallas county suit V. D. Anderson Company seeks judgment for the balance of the principal due on the above-described note, together with interest and attorney's fees, and foreclosure of the above-described chattel mortgage. In the Dallas county suit V. D. Anderson Company alleges that it purchased the note from Western Engineering Company before maturity for a valuable consideration, and without any notice of any defects therein. In the Dallas county suit it is alleged that Wheeler Cotton Oil Company is claiming some interest in the mortgaged property. At this point we particularly call attention to the fact that the Wheeler county suit to cancel the note and mortgage involved in the above two suits, and for damages, was filed eight days before the filing of the Dallas county suit seeking judgment on the same note and foreclosure of the same mortgage.
After the filing of the Dallas county suit, G. O. McCrohan and Wheeler Cotton Oil Company, the plaintiffs in the Wheeler county suit, filed in the Dallas county district court and in the suit there pending their plea in abatement, wherein they make known to the Dallas county district court the pendency of the suit in the Wheeler county district court, and the fact that it was first filed. Also, in this plea in abatement it is made known to the Dallas county district court that the subject-matter and necessary parties in the two suits are substantially the same, and it is contended that because the Wheeler county suit was first filed the Wheeler county district court has prior jurisdiction to try the case, and the Dallas county district court does not have jurisdiction.
After the filing of the plea in abatement in the district court of Dallas county, Tex., by McCrohan and Wheeler Cotton Oil Company, V. D. Anderson Company filed its reply thereto and contest thereof, wherein it contends that the Dallas county district court has prior jurisdiction to try the case as filed in that court, because McCrohan and Wheeler Cotton Oil Company, and each of them, have been guilty of certain acts of fraud and deceit which caused V. D. Anderson Company to delay the filing of the Dallas county suit and thereby enabled the Wheeler county suit to be first filed. In such reply and contest V. D. Anderson Company allege that but for such fraud and deceit the Dallas county suit would have been filed prior to the Wheeler county suit. In this connection estoppel is pleaded. Also in such reply it is further contended that V. D. Anderson Company is a nonresident of this state and therefore cannot be subjected to the jurisdiction of the Wheeler county district court without its consent. It is then contended that V. D. Anderson Company is a necessary party to the Wheeler county suit. The reply and contest contain other allegations not necessary to mention here.
After the filing of the above plea in abatement and reply and contest thereto in the district court of Dallas county, Tex., and on the 15th day of June, 1936, such plea in abatement and reply and contest thereof were duly reached and called for trial in the district court of Dallas county. All parties, plaintiffs and defendants, appeared by their attorneys of record in the district court of Dallas county, Tex., and announced ready for trial on the plea in abatement and reply thereto and contest thereof. Thereupon the district court of Dallas county proceeded to hear such plea in abatement and contest and all questions of law, as well as of fact, pertaining thereto. After a full hearing the district court of Dallas county, Tex., found the law and the facts with the contestants of the plea in abatement, and therefore in all things overruled such plea. McCrohan and Wheeler Cotton Oil Company in open court duly excepted to such...
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