Wood v. Fulton Property Co.

• Decision Date: 10 January 1936
• Docket Number: No. 1505.,1505.
• Parties: WOOD et al. v. FULTON PROPERTY CO. et al.
• Court: Texas Court of Appeals

90 S.W.2d 617

WOOD et al. v. FULTON PROPERTY CO. et al.

No. 1505.

Court of Civil Appeals of Texas. Eastland.

January 10, 1936.

Rehearing Denied February 14, 1936.

Appeal from District Court, Cameron County; A. M. Kent, Judge.

Suit by L. Bernice Wood and husband against the Fulton Property Company and others. From an adverse judgment, plaintiffs appeal.

Affirmed.

J. M. Mothershead, of Harlingen, and Polk & Thompson, of Pharr, for appellants.

Leo Brewer, of San Antonio, Seabury, Taylor & Wagner, of Brownsville, and A. N. Moursund, of San Antonio, for appellees.

GRISSOM, Justice.

For convenience the parties will be referred to as in the trial court.

On March 26, 1934, plaintiffs L. Bernice Wood and husband, C. B. Wood, obtained judgment in the district court of Cameron county, Tex., in cause No. 11066, against B. F. Dittmar Company for $11,922.30, from which judgment there was no appeal. An abstract of the judgment was recorded in the judgment records of said county. Execution was issued and levied on property situated in Cameron county as the property of the Dittmar Company.

The present suit (No. 13087) was instituted by said L. Bernice Wood and C. B. Wood against the Dittmar Company, Fulton Property Company, and Property Management Company, each a Texas corporation, alleging that the Dittmar Company had loaned enormous sums of money in Cameron county on which loans it had charged usurious interest; that being threatened with suits on its usurious contracts, it "did attempt an ingenious system of business prestidigitation, to delay, hinder, or defraud (its) creditors"; that it organized the other corporate defendants to hold its assets and assist in the alleged manipulations and conveyed its assets of the face value of more than $2,000,000 to such other named defendants. They alleged such transfers to be void and the property so conveyed to be subject to the judgment and execution liens of plaintiffs, and, in the alternative, that if title passed by such transfers, it did so charged with an equitable lien in favor of plaintiffs for the amount of their judgment.

Defendants, other than the Dittmar Company, filed pleas of privilege to be sued in Bexar county, which were overruled, and said defendants excepted and gave notice of appeal, but did not appeal. On the day the said defendants' pleas of privilege were overruled they filed their answers to the merits in said cause, each of said answers, however, reciting that it was filed "without waiving its plea of privilege * * * subject to the same," etc. Up to this time there had been no application for the appointment of a receiver.

Thereafter, on September 22, 1934, plaintiffs filed their amended petition and therein for the first time asked that a receiver be appointed to take charge of the properties of the three defendants. On October 16, 1934, the defendants, other than the Dittmar Company, filed their pleas of privilege to be sued in Bexar county, alleging facts bringing them within the provisions of article 2312, and praying, in substance, that the entire cause be transferred to Bexar county, and, in the alternative, that the cause in so far as it prayed for the appointment of a receiver be transferred to Bexar county. The pleas of privilege were controverted, and, upon a hearing, the court overruled the general pleas of privilege of said defendants, but sustained the second counts of the pleas of privilege and directed that the portion of the proceedings seeking the appointment of a receiver be transferred to the district court of Bexar county. Such action is assigned as error, and is the gist of this appeal.

Article 2312, R.S.1925, as amended by Acts 1927, c. 13, § 1 (Vernon's Ann.Civ. St. art. 2312), is as follows: "If the property sought to be placed in the hands of a receiver is a corporation whose property lies within this State, or partly within this State, then the action to have a receiver appointed shall be brought in this State in the county where the principal office of said corporation is located."

Article 1995, subd. 30, provides: "Special venue.—Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given."

It is undisputed that the Fulton Property Company and the Property Management Company are Texas corporations whose properties lie within this state, and that the principal office of each of said corporations is located in Bexar county.

The Supreme Court of Texas, in the case of Bonner v. Hearne, 75 Tex. 242, 12 S.W. 38, 41, in an opinion by Justice Gaines said: "We do not hesitate to hold that section 13 of the act of April 2, 1887 [now article 2312 R.S.1925], as amended [Vernon's Ann.Civ.St. art. 2312], was intended to confer upon corporations the privilege of having suits for the appointment of receivers of their property instituted in the counties of their principal offices."

It would seem that under the plain statutory provisions and undisputed facts of this case, wherein a general receiver for the benefit of the plaintiffs and all other creditors of the three corporate defendants was sought, that the venue of an application for the appointment of a receiver is in the county where the principal offices of such corporations are located.

But, it is contended by plaintiffs that said defendants waived their right to assert their pleas of privilege. It is true, as heretofore stated, that prior to the application by plaintiffs for the appointment of a receiver for the defendants, that Fulton Property Company and Property Management Company filed their pleas of privilege to be sued in Bexar county, which pleas were overruled, and from which no appeal was taken. It is also true that said defendants filed answers to the merits subject to their pleas of privilege. It is true that an order of the court was entered after the application for the appointment of a receiver was filed, which order recited that by agreement the cause was set for ...