Wool Growers' Central Storage Co. v. Edwards
| Decision Date | 04 October 1928 |
| Docket Number | (No. 2170.) |
| Parties | WOOL GROWERS' CENTRAL STORAGE CO. v. EDWARDS. |
| Court | Texas Court of Appeals |
Appeal from District Court, Howard County; F. R. Smith, Judge.
Action by Will P. Edwards against the Wool Growers' Central Storage Company and others. From a judgment for plaintiff, defendant named appeals. Affirmed in part, and in part reversed and remanded with instructions.
Morrison & Morrison, of Big Spring, and Collins, Jackson & Snodgrass, of San Angelo, for appellant.
Beall, Beall, & Beall, of Sweetwater, and James Little, of Big Spring, for appellee.
This suit was brought in Howard county by appellee against Harl Stirman, the Wool Growers' Central Storage Company, a corporation, and H. B. Cox. None of the defendants resided in Howard county. Said company and Cox each filed pleas of privilege, the company claiming the right to be sued in Tom Green county where its principal office was located; Cox claiming the right to be sued in Crockett county where he resided. Appellee filed controverting affidavits. The pleas of privilege were overruled, and the case tried upon its merits.
The plaintiff declared upon a note executed by Stirman, payable in Howard county, secured by mortgage upon sheep and cattle originally situate in Pecos county, but later removed to Crockett county, where they were sold by Stirman to said company, which later sold to Cox. It was alleged that the sale from Stirman to said company was pretended, collusive, and fraudulent, and the sale from the company to Cox was of like character, but the company and Cox took possession of the sheep and cattle and converted same to their own use and benefit.
Judgment was prayed first against Stirman for the amount due upon the note; second, for foreclosure of the mortgage against all defendants; third, judgment for the amount of the debt against all defendants if it should appear they had converted the mortgaged property.
Upon trial upon its merits the suit as to Cox was dismissed, and judgment rendered in plaintiff's favor against Stirman for $9,262.46, the amount due upon the note, and against said company for like amount as for conversion of the mortgaged property; from which the company appeals, assigning as error the overruling of its plea of privilege.
Upon hearing of the plea it was shown that prior to the institution of the suit appellant had disposed of all of the mortgaged property, and the only right of action which the plaintiff had against it was based upon conversion.
In the present case none of the defendants resided in Howard county, nor did the conversion take place in that county. Ever since Behrens Drug Co. v. Hamilton & McCarty, 92 Tex. 284, 48 S. W. 5, it has been held that the joinder of an action for conversion of mortgaged property with a suit against the mortgagor upon the latter's obligation payable in the county where the suit was brought will not defeat the right of the tort-feasor to be sued for the conversion in the county of his residence. Bank of Carbon v. Coxe (Tex. Civ. App.) 241 S. W. 602; People's State Bank v. Bank (Tex. Civ App.) 267 S. W. 992; Floyd v. Gibbs (Tex. Civ. App.) 34 S. W. 154; Zapp v. Davidson, 21 Tex. Civ. App. 566, 54 S. W. 366. Though such an action can be maintained against such a nonresident tort-feasor in the county where the maker of the note secured by the mortgage resides, and such maker is joined in the suit. Cobb v. Barber, 92 Tex. 309, 47 S. W. 963. It is evident from the two cited cases in the 92 Texas, decided just a week apart, that different rules apply where the venue against the nonresident tort-feasor in the one case is laid under subdivision 5 of article 1995, R. S., and in the other case under subdivision 4 of said article. Many of the cases cited by appellee are referable to the principle of Cobb v. Barber. Cobb v. Barber and cases following same are not in conflict with the Behrens Drug Co. Case.
While appellee cites and discusses Cobb v. Barber and cases following same, we do not understand any serious contention is made that the Behrens Drug Co. Case is not authoritative, but appellee relies upon the act of 1927, adding to article 1995, R. S., subdivision 29a, which reads:
"Whenever there are two or more defendants in any suit brought in any...
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Scott v. Scott, 12654.
...county in which he did not reside. To the same effect see: Shipley v. Pershing, Tex.Civ.App., 5 S.W.2d 799; Wool Growers' Central Storage Co. v. Edwards, Tex.Civ.App., 10 S.W.2d 577; Matthews v. Hedley Motor Co., Tex.Civ. App., 47 S.W.2d But it is contended that Mrs. Scott, Sr., is a necess......
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Winter v. Hamilton
...App., 297 S.W. 596, 597; India Tire & Rubber Co. v. Murphy, Tex.Civ.App., 6 S. W.2d 141, 142, 143; Wool Growers' Central Storage Co. v. Edwards, Tex.Civ.App., 10 S.W.2d 577, 578, 579; Rutledge v. Evans, Tex.Civ.App., 219 S.W. 218, 220, 221, pars. 4 and 5. "The judgment of the court is rever......
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Williams v. First Nat. Bank of Midland, Tex., 3654.
...codefendants are entitled to have the alleged cause of action as to conversion tried in Brewster county. Wool Growers' Central Storage Co. v. Edwards, Tex.Civ.App., 10 S.W.2d 577, and cases there referred to; Gulf Refining Co. v. Lipscomb, Tex.Civ.App., 41 S.W.2d 248, 250; Woolridge et al. ......
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Southwestern Peanut Growers Ass'n v. Womack
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