Ulmer v. Dunigan Tool & Supply Co. , 1942 Tex. App. LEXIS 415 ( 1942 )

This is an appeal from an order overruling pleas of privilege where venue of the suit in Stephens County was claimed under subds. 5 and 29a, art. 1995, R.C.S. of Texas, Vernon's Ann.Civ.St. art. 1995, subds. 5, 29a.

Dunigan Tool Supply Company instituted this suit in Stephens County, Texas, against Harry W. Black, a nonresident of Texas, M. C. Ulmer, Alva W. Butler and husband, John P. Butler, who reside in Midland County, and Madeline Martin and husband, Charles Martin, who reside in Jasper County. The suit was brought by appellee against Harry W. Black to recover an indebtedness which he is alleged to have expressly contracted in writing to pay in Stephens County. The indebtedness was evidenced by a promissory note stipulating for payment "at the office of Dunigan Tool Supply Company, Breckenridge, Texas." So did the sales tickets for goods sold him.

Three appellants claimed privilege of being sued in Midland County, and two of being sued in Jasper County. The relief sought against appellants Ulmer, the Butlers and Martins is the foreclosure of liens in favor of the plaintiff and alleged to exist against certain oil, gas and mineral interests and personal property situated in Loving County, Texas. It is alleged that the appellants are subsequent purchasers of the property encumbered with said liens. That they are in possession of the same and that they refuse to surrender the same to appellee.

Other facts are in substance, as follows: Mrs. A. S. Chapman, joined by her husband, made a contract August 5, 1939, with H. M. White to execute to him oil and gas leases on her lands in Loving County. September 11, 1939, White conveyed to R. O. Moorehead an undivided one-half interest in that contract which contemplated the development of the oil, gas and mineral resources in the land and the payment to her of the usual 1/8th royalty. September 18, 1939, Moorehead and White assigned to Karl C. Portz, Sr. their interest in said contract, and the Chapmans thereafter executed mineral leases in pursuance of said contract. The Tool Company began to furnish material and equipment for the lease and oil well about September 20, 1939, and continued to do so until about December 31, 1939. Liens for such material attached and were preserved by registration.

May 8, 1940, Portz, by deed of general warranty, conveyed to Alva W. Butler and Madeline Martin (appellants) an undivided 1/32nd interest in the lessee's 7/8ths working interest, subject, however, to the overriding royalty interest of White and Moorehead. On May 8, 1940, said Portz by like deed conveyed to M. C. Ulmer (another appellant) an undivided 3/32nd interest in the lessee's 7/8ths working interest in said Chapman lease, subject to the overriding interest of White and Moorehead, reserved therein.

Some months after these assignments, Portz, on August 14, 1940, executed an assignment to Dunigan Tool Supply Company, by which instrument he conveyed to them his remaining interest in the Chapman lease. By that instrument he secured by lien the payment of said note. As stated, the other elements of the suit are evidenced by the sales tickets contracting in writing to pay in Stephens County.

The appellants were subsequent purchasers of an interest in the leasehold estate and in possession of the leasehold estate and personal property covered by the lien sought to be foreclosed. The appellee does not disagree with appellants' statement of the nature and results of the suit. Clarifying the issues of the case the appellants frankly state:

"This suit was brought by Dunigan Tool Supply Company against Harry W. Black, a nonresident of the State of Texas, to recover upon a debt alleged to have been contracted by said Black for goods sold and delivered to said Black. The relief sought against appellants, M. C. Ulmer, Alva W. Butler and husband, John P. Butler, and Madeline Martin and husband, Charles Martin, is the foreclosure of certain pretended liens alleged to exist against a certain oil and gas lease in Loving County, Texas, to secure an alleged debt against Harry W. Black.

"Appellants own interests in the lease in question which appellee contends are subject to its alleged liens. It is not contended that appellants have ever in any manner contracted to pay or become liable for the debt sued upon.

"There is no dispute that the cause of action stated in plaintiff's (appellee's) original petition is venuable in Stephens County as against Harry W. Black.

"The only question now before the court is whether or not the evidence adduced on the trial hereof brings this case within the terms of Subdivision 29a of Art. 1995, Texas Revised Civil Statutes, the necessaryparties statute. Appellants devote this brief to the concrete question ofthe legal effect of the evidence contained in the record, not to theabstract question of whether or not a taker subject to is a necessaryparty to an action of this kind." (Italics ours.)

Appellants' statement under their first proposition is in part:

"* * * No question is here raised as to the propriety of the venue of this suit as against Harry W. Black. The sole purpose of joining appellants in this suit is to foreclose against their interests in the oil and gas lease described in plaintiff's original petition a pretended material-man's lien and a pretended chattel mortgage lien * * *.

"Appellants do not seek to reopen the question of whether or not ataker subject to a lien is such a necessary party as is contemplated by this statute but concede that the later authorities determine that question in favor of appellee. The question sought to be raised is whether the facts proved on the trial of this matter are sufficient as a matter of law to warrant the only conclusion of law upon which the judgment below may be supported, viz., that these appellants are necessary parties to the suit of appellee against Harry W. Black to recover a debt and to foreclose certain liens because said debt and liens in fact and in law are valid and subsisting and because appellants have an interest, subject in fact and in law to said liens in the property upon which foreclosure is sought." (Italics ours.)

Since by appellants' admissions and the undisputed testimony the suit is venuable in Stephens County, Texas, as to Harry W. Black, under exception 5 to the general venue statute, that question is settled and need not be further considered.

Doubtless appellants' admission or concession to the effect that "appellants do not seek to reopen the question of whether or not a taker subject to a lien is such a necessary party as is contemplated by this statute but concede that the later authorities determine that question in favor of the appellee" is based upon the opinion of our Supreme Court in Pioneer Building Loan Ass'n v. Gray, 132 Tex. 509, 125 S.W.2d 284, and numerous authorities following the same, and others applying like principles: Pierson v. Pierson, 136 Tex. 310, 150 S.W.2d 788; Hamilton v. Federal Land Bank, Tex. Civ. App. 125 S.W.2d 1088; Boettcher v. Federal Land Bank, Tex. Civ. App. 142 S.W.2d 272; Beckham v. Pantex Pressing Mach., Tex. Civ. App. 135 S.W.2d 188; Biggs v. Southland Life Ins. Co., Tex. Civ. App. 150 S.W.2d 149; Smith v. Dozier Const. Co., Tex. Civ. App. 66 S.W.2d 744; Flynn v. Atlas Life Ins. Co., Tex. Civ. App.81 S.W.2d 772; Jackson v. First Nat. Bank, Tex. Civ. App. 37 S.W.2d 356; Demmer v. Lampasas Auto Co., Tex. Civ. App. 34 S.W.2d 421; Lind v. Merchants' State Bank, Tex. Civ. App. 16 S.W.2d 385.

Upon the record presented by this appeal and under the authorities cited, especially the Gray case, we are of the opinion that the appellants properly make the admissions and concessions above noted. They are compelled to do so by these authorities which, to our mind, establish beyond question that the appellants are "necessary parties" to this lawsuit under exception 29a to the general venue statute. In other words, by such provision of law, the plaintiff is permitted "to join as parties defendant all persons necessary to the enforcement of his full cause of action." [132 Tex. 509, 125 S.W.2d 287.]

We take from the opinion in the Gray case this further emphatic and significant statement: "The very language of subdivision 29a compels that construction. In effect it provides that, if a suit is lawfully maintainable in a county where it is filed as against one of the defendants, then ``such suit' is maintainable in such county against any and all necessary parties thereto. The clear meaning of that language is that a plaintiff may maintain against all necessary parties the same suit which he may maintain under any other exception of Article 1995 against any one party, and every party whose joinder in the suit is necessary tothe securing of full relief in ``such suit' is a necessary party in thesense that term was used in subdivision 29a." (Italics ours.)

Upon the point of necessary parties, the alleged facts of the instant case meet the requirements of the opinion in the Gray case (and the other authorities cited) and render the appellants' presence as parties in this suit necessary to the end that the plaintiff obtain the "full relief" contemplated by said decisions.

Since the suit is venuable as to said Black in Stephens County under exception 5 the question of whether or not the evidence adduced on the trial brings this case within the terms of Subdivision 29a is immaterial or beside the point. Stockyards Nat. Rank v. Maples, 127 Tex. 633,95 S.W.2d 1300, 1302 (involving proper parties). Whether or not the appellants are necessary parties under that exception must be determined by an inspection of the pleadings. That is a venue fact pertaining to the nature of the suit and the plaintiff's petition is "the best and all-sufficient evidence [thereof]." Stockyards Nat. Bank v. Maples, supra. Since said pleadings reflect that appellants are necessary parties to this suit, it is unnecessary to support such fact or conclusion by testimony introduced in the trial below.

In the trial of the issues of the plea of privilege appellants undertook to contest (1) the validity of the appellee's debt and liens; (2) asserted that the debt had been paid; (3) that the liens in favor of appellee had not been properly fixed; and (4) that the chattel mortgage in favor of Black had not been properly indorsed and recorded in the office of the County Clerk. These are all matters of defense to be presented and determined in the final trial of the case on its merits. They have no place in the trial of the issues on the plea of privilege. Stockyards Nat. Bank v. Maples, supra; Film Advertising Corp. v. Camp, Tex. Civ. App. 137 S.W.2d 1068; Camp v. Bond, 134 Tex. 678, 139 S.W.2d 77; Dallas Joint Stock Land Bank v. Harrison, Tex. Civ. App. 131 S.W.2d 742; Vitopil v. Gray, Tex. Civ. App. 111 S.W.2d 1202.

Other assignments, not discussed, have been considered and are overruled. For the reasons assigned, the judgment of the trial court is affirmed.