Kelly v. Natl. Bank of Denison , 271 S.W. 261 ( 1925 )

If the suit was on the injunction bond, and we think it was, the pleas of privilege should not have been overruled because M. L. Kelly, Sr., resided in Dallas county, for he was not a party to the bond, therefore was not liable thereon (32 C.J. 437), and hence was neither a proper nor a necessary party to the suit. The exception (fourth) in the statute authorizing a plaintiff, where the defendants reside in different counties, to sue them in a county where one of them resides, does not apply if the defendant residing in the county where the suit is brought is neither a necessary nor a proper party to the suit. Goggan v. Morrison (Tex.Civ.App.) 163 S.W. 119; Ry. Co. v. Lumber Co. (Tex.Civ.App.) 54 S.W. 324; Ry. Co. v. Mangum, 68 Tex. 342, 4 S.W. 617. The exception referred to, said Judge Stayton in the case last cited —

"does not mean that an inhabitant of this state may be sued in a county other than that of his residence whenever a plaintiff, without sufficient ground, may join with him as a defendant some person who may be a resident of the county in which the action is brought. It means simply that, if one who is a proper or necessary party defendant resides in the county in which the action is brought, then other defendants may be joined with him who reside in other counties."

If an action on the injunction bond was not appellee's sole remedy (Hayden v. Keith, 32 Minn. 277, 20 N.W. 195; Gorton v. Brown, 27 Ill. 489, 81 Am.Dec. 245; Jacobs v. Greening, 109 Kan. 674, 202 P. 72; Spires v. Spires, 30 Ga. App. 228, 117 S.E. 255; Railway Co. v. Ry. Co.,47 W. Va. 725, 35 S.E. 978; Neal v. Barbee [Tex. Civ. App.] 185 S.W. 1059, 14 R.C.L. 479), and if the suit should be treated as one for damages for a "trespass" in Dallas county (in having the writ of injunction served there), within the meaning of the ninth exception in the statute, it was error, nevertheless to overrule the pleas; for, assuming there was testimony showing that M. L. Kelly, Sr., though not a party to the injunction suit, conspired with and advised and encouraged the plaintiffs therein to commence and prosecute it and to have the writ obtained therein served in Dallas county, yet there was no testimony showing or tending to show that said M. L. Kelly, Sr., was in fact a member of the "M. L. Kelly Cotton Company" firm, or that he in any way owned an interest in its assets. If he owned no interest in that firm, then the levy made by the sheriff at appellee's instance was a nullity, and appellee could not have suffered loss and did not have a right to complain because of the delay resulting from the refusal of the sheriff to sell under the levy he had made. No right of appellee of which the law will take notice was invaded when it and the sheriff were restrained from selling an interest that did not exist, so far as the testimony showed to the contrary, in the assets of the cotton company firm. 12 C.J. 581. This court has held that a plaintiff who controverts a plea of privilege conforming to the requirements of the statute must not only allege, but also must prove, facts entitling him to have the plea overruled. Caughan v. Urquhart (Tex.Civ.App.) 265 S.W. 1097, and see authorities there cited, and Hilliard v. Wilson, 76 Tex. 180, 13 S.W. 25.

As we view the record, there is error in the judgment. Therefore it will be reversed, and the cause will be remanded to the court below, with instructions to transfer same to Hall county for trial, as prayed for by appellants and as provided in article 1833, Vernon's Statutes.