National Union Fire Ins. Co. v. Littlejohn , 1921 Tex. App. LEXIS 760 ( 1921 )

Subdivision 4 of article 1830, R.S., provides that, when there are several defendants residing in different counties, suit may be filed in any county where one of them resides. Cobb v. Barber, 92 Tex. 309,47 S.W. 963. And in determining whether or not the new parties attempted to be made defendants after original suit is filed fall within the class of necessary or proper parties so as to make applicable the subdivision supra, the pleadings may usually be looked to. Oil Co. v. Robinson, 50 S.W. 1054; Goggan Bros. v. Morrison, 163 S.W. 119; Russell Co. v. Heitmann Co., 86 S.W. 75. If such pleadings disclose no cause of action against the new parties, or no proper defense to or protection of the original defendant against the plaintiff's cause of action, or state a cause of action which is entirely disconnected with that set out in the petition of the plaintiff, then such new parties, residents of other counties, cannot be brought into the suit in that county over their objection, which is involved in the plea of privilege. In this case, according to the original petition, the plaintiff has sued for a breach of contract to which he and the insurance company are the only parties. And it does not appear from the answer of the insurance company that the presence of Martin and Bonner is essential to any defense or protection to which the insurance company may be entitled in that suit or controversy. In the cross-bill filed by the insurance company no legal ground is stated why Martin and Bonner should be made parties to the original proceedings. It is not a case where the defendant occupies the attitude of an interpleader. In any view justified by this crossbill Martin and Bonner were not even proper parties to the original proceeding. Fidelity Guaranty Co. v. Fossati, 97 Tex. 503, 80 S.W. 74. If they could not properly be joined in that suit if brought in the county in which one or the other of them reside, then for a stronger reason they could not be brought into a distinct suit as is the cross-action, in a county in which neither of them reside. Clearly, then, the appellees Martin and Bonner could not be retained in this suit or crossaction as parties defendant thereto in Harrison county, and consequently the court did not err in so holding. Shaw v. Stinson, 211 S.W. 505.

A further question, though, is as to the disposition or order to be made of such plea of privilege, in view of the statutes and the pleadings in this particular case. The answer of the insurance company to the plaintiff's original petition and this cross-bill against Martin and Bonner on their obligation of the indemnity bond and the prayer for relief was all a part of one paper, and not detachable. Also the cross-bill sought a recovery against Martin and Bonner on their bond conditioned upon a recovery of the plaintiff against the insurance company. The trial court determined, and properly so, that the cross-bill was based upon an independent and separate contract from that declared on in the plaintiff's petition, and was in effect a suit between the insurance company and Martin and Bonner only. Apparently upon the ground that the cross-action was an independent controversy severable from the suit and controversy between the plaintiff Littlejohn and the insurance company, the court transferred "this suit in so far as it applied to F. L. Martin and W. H. Bonner." The plea of privilege of both Martin and Bonner asked the court "not to have or take further action or cognizance of this suit as to him as set out in said answer and cross-bill than to have the same transferred to the county having jurisdiction of the person of this defendant." Some cases seem to direct an order of dismissal of the parties to the cross-action instead of transferring the cross-action. But it is thought that such order has peculiar application to those cases and are not intended to lay down a rule decisive of the point here considered. The following cases go to support the trial court's order as made: McClure v. Pair, 214 S.W. 683; Rutledge v. Evans, 219 S.W. 218.

The statute expressly provides that, if the plea of privilege be sustained, the cause shall not be dismissed, but transferred to the court having jurisdiction of the person of the defendant therein. Article 1832, R.S. Article 1833, R.S., makes it the duty of the clerk of the court to make up a certified transcript of all the orders made in the cause and "transmit the same, with the original papers in the cause, to the clerk of the court to which the venue has been changed." The first article supra is remedial legislation, and is intentionally made restrictive of the power of the court as to disposition to be legally made of the plea of privilege if sustained in providing that "the cause shall not be dismissed." The court is required under the article only to determine whether or not the plea shall be sustained. The granting of a plea of privilege results in itself in having the legal effect under this article of transferring the cause. Hickman v. Swain, 106 Tex. 431,167 S.W. 209. The court is not granted any discretion in that respect of transferring the cause. And it is as well the legal right of the defendant filing the plea to have the cause as to him transferred upon the plea being sustained. Goggan v. Morrison, 163 S.W. 119. As the legal effect attaching to the granting of the plea of privilege is to transfer the cause, the court, in dismissing the cross-action, would be acting not only contrary to the legal effect of his action in sustaining the plea, but to the express prohibition of the article "that the cause shall not be dismissed." The crossaction in the instant case being an entirely independent suit and legally severable from the plaintiff's cause of action, the court was required under the statute, upon sustaining the plea of privilege, to enter the order, as he did, transferring the cross-action only to the proper court. It is true that the succeeding article requires the clerk of the court to transmit "the original papers in the cause," but this is made the subsequent duty on the clerk, and is not a part of or incident to the power of the court in determining the plea. This particular article is, we think, a directory procedure in the method of procedure to be adhered to in the given cases. In order to accomplish the purpose of the statute in requiring the cause to be transferred and not dismissed, if the plea of privilege be granted, the court may require a repleader if the answer and cross-action be so arranged as not to be detachable. Rutledge v. Evans, supra. Even the plaintiff in the transferred case, on whom rests the burden of proper transfer, could ask leave to amend to comply with the order. The "original papers" may then be transferred. But in a given case a good legal reason is not apparent why any substantial method of compliance with the statute in this particular directory method of procedure may not be held sufficient, if necessary to do so, to protect the statutory requirement of transfer of the case being defeated or inoperative. If the cross-action be subject to exception or demurrer, such pleading and action of the court thereon would be determinable in the court to which the cause is transferred. The only question before this court, as was before the trial court, is the precise one of venue as to the person, involved in a plea of privilege, and no other question can be or is considered.

The judgment is affirmed.