Tempelmeyer v. Blackburn

This appeal is from a judgment of the District Court of Grayson County, sustaining plea of privilege of defendant D. E. Blackburn, also his plea of res adjudicata as to venue. The following material facts are pertinent to a disposition thereof: Blackburn, living in Victoria County, is one of the sureties on the $12,000 bond of F. H. Tempelmeyer, as permanent guardian of petitioners. F. H. Tempelmeyer died in 1934 and was succeeded by Melvin E. Tempelmeyer; each having first qualified as temporary guardian and then as permanent guardian, with proceedings concerning same filed and continuing in Grayson County, Texas.

In October, 1941, upon application of plaintiffs for an accounting, the Probate Court of said County entered an order relative to the liability of these guardians; and the suit on its merits was for recovery of the amounts so established against Melvin E. Tempelmeyer and sureties, Trinity Universal Insurance Company and J. V. Conaster, also against Blackburn (appellee,) T. B. Ireland and J. A. Dowling, sureties on the bond of F. H. Tempelmeyer, deceased. Suit on such bonds was originally filed in Dallas County, domicile of the named corporate surety, all other sureties residing in Grayson County, except D. E. Blackburn, the Victoria County resident. Timely pleas of privilege were filed in the Dallas Court by Blackburn, to be sued in the county of his residence; similarly, by sureties Dowling, Ireland and Conaster, claiming venue in their resident county — Grayson. Controverting affidavits were filed by plaintiffs, and trial was had upon the respective pleas before a district court of Dallas County on August 19, 1942. At the conclusion of such hearing and before the court had announced his decision, plaintiffs, through their attorneys, requested a nonsuit as to defendant Blackburn, and judgment was accordingly entered dismissing this party. The remaining venue pleas were sustained and the cause transferred to the District Court of Grayson County, to which action exception was taken and notice of appeal (though not prosecuted).

Upon transfer and filing of the cause in Grayson County, plaintiffs, in first amended petition filed, set up the same cause of action as originally; again impleading D. E. Blackburn, of Victoria County. This defendant, after service, promptly filed his pleas of privilege and res adjudicata, claiming that by reason of the prior proceedings, the District Court of Victoria County had been invested with exclusive jurisdiction of said cause as to him. These pleas were sustained on trial of the issues thus joined, and the instant appeal is predicated on the subsequent order of transfer. Appellee Blackburn relies upon the following Supreme Court decisions in support of the judgment under review: First Nat. Bank in Dallas v. Hannay, 123 Tex. 203, 67 S.W.2d 215; Royal Petroleum Co. v. McCallum, 134 Tex. 543, 135 S.W.2d 958; also, H. H. Watson Co. v. Cobb Grain Co., Tex.Com.App., 292 S.W. 174; the Hannay case holding that, "* * * judgment of dismissal upon voluntary nonsuit by the plaintiff, after the filing of a plea of privilege and a controverting affidavit and before the court has announced his decision on the question of venue, is res adjudicata as to the venue of a subsequent suit on the same cause of action. A plaintiff, who, after filing his controverting affidavit, takes a nonsuit, thereby abandons his contest of the plea of privilege and in effect withdraws his controverting affidavit. Such action amounts to an admission that the plea of privilege is well taken."

One of the plaintiffs was Eric Eades, Jr., guardian of the person and estate of Charles F. Tempelmeyer, a minor; and the first guardian's bond (F. H. Tempelmeyer's), executed by defendant Blackburn, together with other sureties, was conditioned upon the faithful discharge by the guardian of his duties thereunder, and payable to the County Judge of Grayson County. It is further apparent that, perforce of Arts. 4970-4975, R.S., exclusive jurisdiction of Trinity Universal Insurance Company, corporate surety on the second or Melvin Tempelmeyer bond, was in Grayson County, i. e., where said bond was filed. Bachus v. Foster, Tex.Com.App., 122 S.W.2d 1058. And bearing on the merits of the instant case, but pertinent here, is Art. 4238, R.S., providing, in effect, that when a guardian succeeds another, he shall be required, within certain limitations, to account for all property coming into the hands of his predecessor.

Appellants urge that, despite Blackburn's plea of res adjudicata, he is a necessary party to the Grayson County suit, being jointly and severally liable with all defendants; or otherwise stated in point 9: "The District Court of Grayson County, Texas, being the only court where the defendant, Trinity Universal Insurance Company can be sued on its bond of Melvin E. Tempelmeyer, Guardian, and all of the other defendants, except Blackburn being residents of Grayson County, Texas, and D. Blackburn being jointly liable with other defendants as to a portion of the indebtedness sued for, plaintiffs are entitled to maintain this suit against all parties including D. Blackburn in Grayson County in one action in order to avoid a multiplicity of suits and to enable the Court to grant plaintiffs the complete relief sought and to adjust the equities existing among the sureties themselves."

Manifestly, appellants' cause of action is joint and several, and if same had been originally filed in the Grayson County forum, venue over all defendants could have been successfully maintained. Plaintiffs did not do this; on the other hand, having themselves brought about the legal situation of which they complain, — first, by mistaken lodgment of suit in Dallas County, and second, by subsequent dismissal of Blackburn after joinder of issues on the venue plea. The rule of res adjudicata, as broadly stated in First Nat. Bank v. Hannay and Royal Petroleum Co. v. McCallum, supra, when applicable, appears to admit of no exceptions. And if the voluntary dismissal of defendant after plea of privilege is res adjudicata of venue in the same cause later filed against him in another county, likewise, we think, the rule of former adjudication would apply to the same suit transferred to the district court of another county.

Appellants argue that the dismissal merely bars them from further litigation in Dallas County; the same point being raised and overruled in Carter v. Calhoun, Tex. Civ. App. 6 S.W.2d 191; and in Humble Oil Refining Co. v. Pettaway, Tex. Civ. App. 76 S.W.2d 1069, different counties were involved. Among appellate decisions analogous in principle are: Murphy v. India Tire Rubber Co., Tex. Civ. App. 27 S.W.2d 1110; Scott v. Clark, Tex. Civ. App. 38 S.W.2d 382; Dallas Joint-Stock Land Bank v. Webb, Tex. Civ. App. 48 S.W.2d 434; Price v. Lovejoy, Tex. Civ. App. 88 S.W.2d 785; Coke v. Pottorff, Tex. Civ. App. 140 S.W.2d 586; Richardson v. Mohon, Tex. Civ. App. 157 S.W.2d 655; Cassel v. Edwards, Tex. Civ. App. 161 S.W.2d 362.

The further contention is made that plaintiffs' nonsuit is surely not res adjudicata with respect to the rights of Charles H. Tempelmeyer, a minor, who cannot be thereby prejudiced by the acts or omissions of his representatives. The dismissal in question was ordered and sanctioned by the court after a hearing on appellee's venue plea, Rainey v. Chambers,56 Tex. 17; thus becoming a lawful act of the guardian, by which the ward was bound. Art. 4164, Vernon's Civ.St.; Dancy v. Stricklinge, 15 Tex. 557, 65 Am.Dec, 179; Clayton v. McKinnon, 54 Tex. 206. The judgment appealed from must be in all respects affirmed.

Affirmed.