Weaver v. Acme Finance Co., 223
Decision Date | 29 September 1966 |
Docket Number | No. 223,223 |
Citation | 407 S.W.2d 227 |
Parties | H. J. WEAVER, Appellant, v. ACME FINANCE COMPANY, a co-partnership, Appellee. . Corpus Christi |
Court | Texas Court of Appeals |
William H. Scott, Jr., Houston, for appellant.
Charles Elick, of Barnes & Elick, McAllen, Ralph Alexander, of Kelley, Looney, McLean & Littleton, Edinburg, for appellee.
This is a venue case. The trial court overruled appellant's plea of privilege to be sued in Harris County where he resides, and he appeals. Subsections 5--29a, 12 and 12--29a, and 14, Art. 1995, are involved.
On September 17, 1959, McAllen Cemetery Association entered into a contract with Gene Loewy Construction Company for the building of a mausoleum on land in Hidalgo County belonging to the Association. This was to be built at no expense to the Association. Construction Company received, as its consideration, the right to handle the sales of 80% Of the crypts sold, with all proceeds of such sales to be retained by Loewy except $15.00 per crypt sold to be paid Association. The remaining 20% Of the crypts were to go to Association.
All rights of Loewy under this contract were, on April 2, 1960, assigned to Mausoleum Sales Company, Inc., with the consent of the Cemetery Association. On December 1, 1960, Sales Company entered into a contract with Andis & Burris, General Contractors, for the construction of the mausoleum. To assist in financing this construction, Sales Company on February 1, 1961, for the purpose of securing a line of credit to the amount of $100,000.00 with W. D. Whalen, executed the note in litigation in the principal amount of $100,000.00, payable to the order of Whalen at McAllen, Hidalgo County, Texas, on demand. This note was signed by Mausoleum Sales Company, Inc., by its president, L. R. Garrett, and its secretary, Nell Rose Garrett. On the same date, a Collateral Assignment Agreement was executed by Sales Company, Cemetery Association, W. D. Whalen, and certain named trustees, under the terms of which Sales Company transferred all contractual rights it had in and to the proceeds of the sales of crypts and all other benefits under the contract and assignments heretofore mentioned to named trustees as collateral security for the payment of the aforementioned note. (Another note was also involved in this matter, which is not material to the venue issue.) It was stipulated and confirmed that the mausoleum, when constructed, should belong to Cemetery Association, subject to the rights of Sales Company and its assignees under the collateral agreement to sell and use the proceeds, except that $15.00 per crypt sold should go to Association, and Cemetery Association reserved the exclusive power and authority to execute and deliver deeds to the respective purchasers, subject to approval of the trustees.
Thereafter, according to plaintiff's evidence, W. D. Whalen assigned all of his interest in the $100,000.00 note and collateral to plaintiff Acme Finance Company, a co-partnership, the present holder and owner of same.
The mausoleum has been finished. Many of the crypts have been sold under the agreements hereinabove mentioned and the sum of $45,000.00 has been credited to the principal of the note, according to the plaintiff's petition.
This suit was filed by plaintiff Acme Finance Co., a co-partnership consisting of Helen Spencer and M. L. Wagner, against Mausoleum Sales Company, Inc., L. R. Garrett and Nell Rose Garrett, on the note and collateral agreement. The petition asked for an accounting by defendants for the proceeds of all crypts sold by them, alleged a lien on all of the crypts except those retained by Cemetery Association, and prayed for foreclosure of said lien as a first lien superior to any claims of any of the defendants. H. J. Weaver was named as a party defendant under the allegation that he claimed some right to or encumbrance on the crypts allotted to defendants, that such claims constituted a cloud and an encumbrance against the title of said crypts and that any claim that Weaver has should be quieted as against the lien and interests of plaintiff under the collateral agreement.
We will use the singular in referring to plaintiff partnership, and will designate the parties as in the trial court.
Liability of the Garretts on the note and collateral agreement is based on the theory that as sole owners of all the capital stock of Mausoleum Sales Company, Inc., they have continued to operate the affairs of Mausoleum Sales Company in utter disregard of the corporate entity, notwithstanding that said company forfeited its charter in March, 1963, due to failure to pay franchise taxes.
All of the defendants filed pleas of privilege, the Sales Company and the Garretts, who resided in Harris County, joining in one plea, and defendant Weaver, also a resident of Harris County filing a separate plea. Plaintiff answered said pleas, filing one controverting affidavit to the plea of the first three named defendants, none of whom had his or its place of residence in Hidalgo County, and a separate affidavit to Weaver's plea. After a hearing, both pleas of privilege were overruled. Only defendant Weaver has appealed.
Since Weaver did not sign either the note or the Collateral Assignment Agreement, nor, for that matter, any of the documents introduced in evidence, Exception 5, Art. 1995, does not place venue as to him in Hidalgo County. He had not contracted in writing to perform an obligation in such county.
Exception 29a, Art. 1995, reads as follows:
'Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto.'
It is not contended by appellant Weaver on this appeal that the suit was not lawfully maintainable in Hidalgo County as to the defendants Sales Company and the Garretts, and we find under the pleadings and the evidence that it was lawfully maintainable there as to said defendants. It is appellee's contention that Weaver was a 'necessary party' to this action, and that this suit may be maintained as to him in Hidalgo County under the provisions of Exception 29a.
Plaintiff's allegation of Weaver's claim of 'some right to or encumbrance on the crypts which were allotted to defendants as aforesaid' is based, according to evidence, upon allegations made by Weaver in a suit filed in the district court of Harris County, Texas, on a note prior in time to the note here in question, executed by defendant Mausoleum Sales Company, Inc ., payable to Weaver. As evidence of the right or encumbrance claimed by Weaver, plaintiff offered in evidence a short extract from Weaver's answer filed subject to his plea of privilege in the Hidalgo County case, quoting from his petition in the Harris County suit, as follows: '* * * and that they took all of its assets and inventory in violation of the statutes prohibiting and dealing with fraudulent conveyances and in violation of the Bulk Sales Law.' Thereafter, in order to show what the Harris County law suit was about, defendant Weaver was permitted to introduce in evidence his petition in that case. The subject of such suit was a $12,000.00 note, signed by Mausoleum Sales Company, Inc. on April 2, 1960, payable to H. J. Weaver at Houston, Harris County, Texas out of realized profits of Sales Company. This date was prior to the execution of the $100,000.00 note on February 1, 1961. Besides the Sales Company, other defendants in the Harris County case were W. D. Whalen, L. R. Garrett, T. B. Weekly and Paul Wagner, the latter two being the trustees named in the Collateral Assignment Agreement, and Acme Finance Company, a Texas Corporation. Weaver alleged the existence of a conspiracy between the personal defendants from February 1, 1961, to fraudulently secure to themselves all of the assets of the Sales Company, and particularly its rights and assets in connection with the sales of crypts in the mausoleum, so that Weaver's note could never be paid out of realized profits. In connection with detailed allegations of fraud and conspiracy Weaver prayed for a judgment on his note against all of the defendants, and asked that conveyance of certain assets of Sales Company to other defendants be declared void and that a receiver be appointed to take possession of the contractual rights of Sales Company under the Loewy contract for the sale of crypts in the mausoleum, that he have an accounting of the personal defendants of amounts due to Sales Company, and that thereafter the obligations of Sales Company to Weaver be paid. That the venue of said case is properly in Harris County as to the parties to that suit has been determined. Acme Finance Company, et al., v. Weaver, et al., Tex.Civ.App., 401 S.W.2d 259.
Under our venue statutes it must be clearly shown that the case comes within some well-defined statutory exception before one may be deprived of the right to defend a suit against him in the county of his residence. The party relying upon Exception 29a to hold venue in a county other than the county of the residence of a defendant asserting his statutory privilege must plead and prove that such defendant is a necessary party to the action. Shaw v. Allied Finance Company, 161 Tex. 88, 337 S.W.2d 107; Ladner v. Reliance Corporation, 156 Tex. 158, 293 S.W.2d 758.
It is well settled that one merely claiming some interest in mortgaged prop. erty upon which foreclosure is sought is not a necessary party under Exception 29a. The interest or lien alleged and proved must be such that the mortgagee seeking foreclosure could not obtain the relief To which he is...
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