Fenner & Beane v. Lincoln

On Motion for Rehearing.

Appellee, on motion for rehearing, has called our attention to the opinion of the Supreme Court in Stockyards National Bank v. Maples, 95 S.W.(2d) 1300, in which it is held that, where a plaintiff alleges a joint cause of action against two or more defendants and proves a cause of action against the resident defendant, the plea of privilege of the nonresident defendants should be overruled, even though the evidence establishes that plaintiff has no right to recover against such out of county defendants. Under this holding, the trial court properly overruled the plea of privilege of the appellants. The plaintiff alleged that all the defendants conspired to and did make plaintiff believe that the business operated by M. S. Mullins, Jr., in Waco and that operated by Fenner & Beane in Dallas was one and the same business and that, but for the fraudulent representations made by the defendants in the carrying out of said conspiracy, plaintiff' would not have intrusted her business to said M. S. Mullins, Jr.; that said fraudulent representations and acts on the part of defendants occurred in Waco; and that defendants, after getting possession of her stocks and money, converted same to their own use and benefit in McLennan county. Such pleadings were sufficient to allege a joint cause of action against the resident and nonresident defendants and the proof established prima facie a cause of action against the resident defendant. Under the authority above cited, the judgment of the trial court overruling the plea of privilege of the nonresident defendants must be affirmed.

The judgment heretofore entered reversing and remanding the- cause is set aside and the judgment of the trial court is affirmed.