Moorhouse v. King County Land Cattle Co. , 139 S.W. 883 ( 1911 )

¹ Writ of error denied by Supreme Court. It must be assumed in favor of the ruling of the court that each of appellees Nash, Spikes, and Pickard was not at the institution of this suit, nor at the time of service of process on him, nor at the time of filing his plea of privilege, a resident of King county, but that each was a resident at the time his plea was filed of Kaufman county, Tex. Indeed, these facts are not controverted, but are virtually admitted by appellant in his pleadings and brief.

No ground is shown which would defeat their plea of privilege, unless it be that plaintiff's allegations show that his cause of action against their codefendant, King County Land Cattle Company, whose place of business is King county, Tex., is the same or is so intimately connected or blended with his cause of action against said company as to render them inseparable or inseverable. It clearly appears from the allegations in plaintiff's petition that, if it alleges any cause of action against said corporation, it is entirely separate, distinct, and severable from that alleged against its codefendants, and therefore could not deprive them of their privilege of being sued in the county of their domicile. The position of appellant that, because the court did not act upon appellees' pleas of misjoinder of actions and of parties, before acting on the pleas of privilege, the latter were waived, is untenable.

In the natural order of disposition, the pleas of privilege were the first required to be acted upon by the court; and it was essential to a proper disposition of them that the court should determine whether, regardless of pleas of misjoinder of actions or of persons, plaintiff's alleged cause of action was the same against the parties pleading privilege as against their codefendant, or were so blended as to make them one, inseparable and inseverable. Its action sustaining such pleas carries with it the implication that the court found that the cause of action alleged against Nash, Spikes, and Pickard was essentially different and separable from that charged against their codefendant. In view of this, it became the duty of the court to order the venue of the case, as against said defendants, changed to the district court of Kaufman county, Tex. Article 1194c, Rev. Stats., added by Acts 30th Leg. p. 249. The plaintiff, after the court had sustained the King County Land Cattle Company's exceptions to his petition, which went to the validity of its substance, having failed to amend, nothing was left for the court to do save enter a judgment on said exceptions in favor of said defendant.

The judgment is affirmed.