Way v. Coca Cola Bottling Co.

• Decision Date: 28 June 1930
• Docket Number: No. 1419-5623.,1419-5623.
• Parties: WAY et al. v. COCA COLA BOTTLING CO. et al.
• Court: Texas Supreme Court

29 S.W.2d 1067

WAY et al. v. COCA COLA BOTTLING CO. et al.

No. 1419-5623.

Commission of Appeals of Texas, Section A.

June 28, 1930.

Original application for mandamus by W. J. and K. W. Way, doing business under the name of the Way Engineering Company, against Hon. S. G. Tayloe, Judge of the Forty-Fifth District Court of Bexar County, Hon. J. P. Hill, Judge of the Fifty-First Judicial District Court of Tom Green County, and the Coca Cola Bottling Company.

Mandamus and other writs awarded in accordance with opinion.

Matlock & Kelly, of San Antonio, and Ocie Speer, of Austin, for relators.

J. A. Thomas, of San Angelo, for respondents.

SHARP, J.

This is an original application for mandamus by W. J. and K. W. Way, doing business under the name of Way Engineering Company, against Hon. S. G. Tayloe, judge of the Forty-Fifth district court of Bexar county, Tex., Hon. J. P. Hill, judge of the Fifty-First judicial district court of Tom Green county, and the Coca Cola Bottling Company, and involves a conflict of jurisdiction between the district court of Bexar county, Tex., and the district court of Tom Green county, Tex. W. J. and K. W. Way pray for a writ of mandamus against Judge Tayloe, requiring him to proceed with the trial of a certain cause in his court in Bexar county, No. B-46254, styled W. J. and K. W. Way v. Coca Cola Bottling Company. They also pray for writs of prohibition or injunction against Hon. J. P. Hill, judge of the Fifty-First district court of Tom Green county, to desist from the issuance of any further injunction or the enforcement of any injunction already issued by him in cause No. 5494, styled Coca Cola Bottling Company v. Way Engineering Company, a copartnership composed of W. J. and K. W. Way, pending in the district court of Tom Green county, or in any way interfering with the trial of cause No. B-46254, pending in the Forty-Fifth district court of Bexar county, and that the Coca Cola Bottling Company and its attorneys be enjoined or prohibited from attempting to procure any further injunction in said cause against the Way Engineering Company or its attorneys, and that they desist from any further action or effort to try the case pending in Tom Green county, Tex.

For convenience we will describe the parties as plaintiffs and defendant, as they were designated in the trial courts.

The proceedings leading up to this condition of affairs between the two district courts above described will be set out in their chronological order, and are briefly stated as follows:

On or about the 1st day of April, 1927, W. J. and K. W. Way, doing business under the name of the Way Engineering Company, filed suit in the Forty-Fifth district court of Bexar county, Tex., in cause No. B-46254, against L. W. Walker, doing business under the name of Coca Cola Bottling Company, and it was alleged that plaintiffs entered into a sales contract with L. W. Walker, whereby plaintiffs sold to defendant certain machinery for a consideration of $2,499, and for which the defendant paid part in cash and executed an installment note for the remainder.

The note sued upon recited that the purchase price of the machinery was to be paid to the Way Engineering Company's order at San Antonio, Tex., and was signed Coca Cola Bottling Company by L. W. Walker.

On May 2, 1927, L. W. Walker filed his plea of privilege to be sued in Tom Green county, the place of his residence, and in his plea of privilege set up the fact that the Coca Cola Bottling Company was a corporation, and that if the note sued upon was signed at all, it was for and on behalf of the Coca Cola Bottling Company, a corporation.

On May 4, 1927, plaintiffs filed an answer controverting the plea of privilege, and alleged that the allegation in plaintiffs' petition that the defendant executed a note for $1,752 payable to plaintiffs at San Antonio, Tex., was true and was made by plaintiffs because the defendant, L. W. Walker, was doing business under the name of Coca Cola Bottling Company at the time of the execution of the note, and that the contract and note were each executed for the benefit of the Coca Cola Bottling Company, under which name L. W. Walker was doing business at the time of the making of the contract, but that if it should appear on the trial of the plea of privilege that L. W. Walker signed said contract on behalf of the Coca Cola Bottling Company and that the Coca Cola Bottling Company was then a corporation, plaintiffs had no knowledge that it was a corporation but understood and believed at the time the note and contract were executed that the defendant was doing business for himself under the name of the Coca Cola Bottling Company, and that if it should be developed on the trial that the Coca Cola Bottling Company was a corporation at the time the contract was made and that L. W. Walker signed it for the benefit of the corporation and not for himself, then the plaintiffs should be permitted to amend said petition so as to make the corporation a party and that the court should retain jurisdiction of the cause of action until plaintiffs had an opportunity to procure the necessary and proper service on the Coca Cola Bottling Company.

On May 19, 1927, plaintiffs filed their first amended original petition, making the Coca Cola Bottling Company, a corporation, a party defendant with L. W. Walker, and alleged in substance that at the time of the filing of the original petition plaintiffs had no knowledge that the Coca Cola Bottling Company was a corporation and that they believed that the defendant, L. W. Walker, was doing business for himself under the name of Coca Cola Bottling Company, and since the court acquired jurisdiction of the suit by filing of a petition on April 1, 1927, the court had jurisdiction to permit pleadings to be amended and amplified, new parties to be made to determine all the essential questions involved in the suit, and to do whatever is necessary to determine the issues involved therein.

On October 3, 1927, the Coca Cola Bottling Company filed its plea of privilege to plaintiffs' first amended original petition and set up the usual allegations essential to a plea of privilege.

On October 7, 1927, plaintiffs filed a controverted plea to the plea of privilege filed by the Coca Cola Bottling Company.

On June 18, 1928, an order was entered in Cause No. B-46254, in the district court of Bexar county, dismissing the defendant, L. W. Walker, personally from that suit, and on the same day the Coca Cola Bottling Company's plea of privilege to be sued in Tom Green county, Tex., was overruled by the court, and an appeal from that ruling by the trial court was made to the Court of Civil Appeals, and in due time the Court of Civil Appeals for the Eighth Supreme Judicial District of Texas at El Paso affirmed the judgment of the trial court and petition for writ of error was dismissed without jurisdiction by the Supreme Court.

On April 19, 1927, the Coca Cola Bottling Company filed suit in the district court of Tom Green county in cause No. 5494 against the Way Engineering Company, involving the same cause of action in controversy in cause No. B-46254, then pending in the Forty-Fifth district court of Bexar county, Tex.

On the 23d day of May, 1927, the Way Engineering Company filed a plea of the pendency of a prior suit in the Forty-Fifth district court of Bexar county, Tex., covering the same cause of action, and set up in detail what had been done in cause No. B-46254 in the Forty-Fifth district court of Bexar county, Tex., in reference to the amendment of pleadings, making new parties, etc., and that the district court of Bexar county had acquired jurisdiction of the subject-matter in controversy, and that the district court of Tom Green county in cause No. 5494, involving the same subject-matter, did not have jurisdiction of this cause and should have nothing more to do with same. That with the intention of depriving the Forty-Fifth district court of Bexar county, Tex., of its jurisdiction over this cause, the Coca Cola Bottling Company induced the honorable district judge for the Fifty-First judicial district of Tom Green county, Tex., to issue a temporary writ of injunction, restraining the plaintiffs and their attorneys from further prosecuting or from attempting to prosecute said cause No. B-46254, pending in the Forty-Fifth district court of Bexar county, and that on the 30th day of November, 1929, a writ of injunction was issued, commanding W. J. and K. W. Way, the Way Engineering Company, and their attorneys of record, to desist and refrain from further prosecuting or attempting to prosecute cause No. B-46254 in the district court of Bexar county.

On December 30, 1929, the Way Engineering Company, plaintiffs in cause No. B-46254, in the Forty-Fifth district court of Bexar county, Tex., filed their second amended original petition, praying for injunction against the Coca Cola Bottling Company and its attorneys of record, setting up substantially the facts recited in their first amended original petition and other pleadings, and alleged that cause No. B-46254, above described, involved the same cause of action, and after setting out in detail the facts giving jurisdiction of this case to the Forty-Fifth district court of Bexar county, prayed that the defendant Coca Cola Bottling Company and its attorneys of record be enjoined from further prosecuting or attempting to prosecute said cause No. 5494 in the district court of Tom Green county.

On December 29, 1929, Hon. S. G. Tayloe set the hearing for injunction down for January 3, 1930, and notices thereon were issued, but the process was not returned and delivered to the clerk of the district court of Bexar county until after January 3, 1930, too late for hearing of said cause.

In the meantime, the Coca Cola Bottling Company and its attorneys immediately filed in vacation its third amended original petition in cause No. 5494, and asked for an injunction against...