Whisnant v. Kurtz

• Decision Date: 27 January 1921
• Docket Number: (No. 7979.)
• Citation: 228 S.W. 977
• Parties: WHISNANT v. KURTZ.
• Court: Texas Court of Appeals

228 S.W. 977

WHISNANT v. KURTZ.

(No. 7979.)

Court of Civil Appeals of Texas. Galveston.

January 27, 1921.

Rehearing Denied February 10, 1921.

Appeal from Austin County Court; W. J. Hill, Judge.

Action by E. B. Kurtz against H. L. Whisnant. From a judgment denying his plea of privilege, defendant appeals. Affirmed.

Searcy & Botts, of Brenham, and Duncan & Duncan, of Bellville, for appellant.

C. G. Krueger, of Bellville, for appellee.

PLEASANTS, C. J.

Appellee brought this suit against appellant to recover the sum of $738.58, alleged to be the balance due as purchase price of 142 head of cattle sold by him to appellant.

The suit was brought to the November term, 1919, of the county court of Austin county. On November 25, 1919, appellant filed a plea of privilege to be sued in Bosque county, where he resides. This plea negatives all of the exceptions in the statute permitting suit to be brought against a defendant in a county other than that of his residence, and avers that the allegations in plaintiff's petition of facts showing venue in Austin county were fraudulently made for the purpose of conferring jurisdiction in the county court of that county. On the 28th day of November, 1919, appellant filed an answer in which, after a general denial, he pleaded specially that the cattle were not shipped in accordance with instructions, specially denied the allegations of fraud contained in the petition, and further pleaded:

"This defendant, while protesting against and denying liability under said contract, says that, if any damage has been done the plaintiff, it was done by the Gulf, Colorado & Santa Fé Railroad Company, a corporation, who assumed charge of said cattle and contracted with plaintiff to deliver said cattle as directed by plaintiff. And this defendant says that, if plaintiff recover of and from this defendant as he has prayed for, this defendant recover of and from the Gulf, Colorado & Santa Fé Railroad Company, a corporation, who does business of a common carrier in and through Austin county, Tex., and has and maintains an office in Austin county, Tex., in the town of Bellville, Tex., and that T. B. Wheat is the agent of said company at such office in Austin county, Tex., and upon which service of citation may be had.

"Wherefore, this defendant prays for citation to the Gulf, Colorado & Santa Fé Railway Company by and through service of citation upon T. B. Wheat, of Austin county, Tex., and this defendant further prays that said company be made a party to this suit, and that upon a trial hereof, and in the event that the plaintiff recover of and from this defendant, this defendant prays judgment over and against the Gulf, Colorado & Santa Fé Railway Company for such sum as said plaintiff may recover of and from this defendant, H. L. Whisnant, and such other and further relief, whether the same be general or special, legal or equitable, which the facts herein alleged and proved may authorize."

On the 1st day of December, A. D. 1919, the court made the following order:

"E. B. Kurtz v. H. L. Whisnant. No. 881.

                                     "December 1st, 1919
                

"Case continued by the court for the purpose of making parties defendant, and continued without prejudice with reference to defendant's plea of privilege."

At the next term of the court the plaintiff filed a controverting plea to defendant's plea of privilege, averring that the contract sued on was made in Austin county and was to be wholly performed in that county, and that the check given by defendant to plaintiff in payment of the purchase money of the cattle was payable in Austin county; that at the time defendant purchased the cattle and gave the check to plaintiff he intended to stop the payment of the check if the cattle which were to be immediately shipped by plaintiff to defendant's order at Fort Worth failed to sell on the Fort Worth market for as much or more than defendant had agreed to pay plaintiff therefor, and, the cattle having sold for less than said amount, defendant did stop the payment of said check; and that these facts constituted fraud perpetrated by de...