Ulmer v. Dunigan Tool Supply , 163 S.W.2d 901 ( 1942 )

The writer has no criticism of the majority opinion upon the ground that it shows certainly a wrong construction of the decisions of the Supreme Court deemed to require the conclusion that the parties asserting their privilege are necessary parties to the suit within the provisions of exception 29a to the general rule of venue. R.S. 1925, Art. 1995, Vernon's Ann.Civ.St. Art. 1995. My position is that said decisions leave the question of who constitutes a necessary party under exception 29a in such uncertainty that it should not be regarded as settled.

That the term "necessary parties" in exception 29a means something different from the term "proper parties" has had repeated recognition in the opinions of the Supreme Court. For instance, in an illustration in Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347, 353, it is said: "On the other hand, suppose suit is brought by C against A, a nonresident, in Carson county under some subdivision of article 1995, other than subdivision 4; then if B, also a nonresident, is a necessary party to the suit, as distinguished from merely a proper party, he can be joined in the case in Carson county under subdivision 29a." (Italics the court's.) This opinion cites with approval Boydston v. Morris, 71 Tex. 697,10 S.W. 331, which held that in a suit by a mortgagee against a mortgagor to recover the debt and foreclose the mortgage lien, a purchaser of the mortgaged property, alleged to have converted it, was not a necessary party; and also that in a suit by the mortgagee against the alleged conversioner, the mortgagor was not a necessary party. But, if the later opinions cited in the majority opinion mean what they are interpreted as meaning, then any distinction between necessary parties and proper parties is no longer recognized.

Judge Townes in his Texas Pleadings pointed out that "There are at least two distinct senses in which the term necessary is applied to parties, — one, the strictest sense, including only those persons without whose presence before the court no adjudication of any of the subject matter involved in the litigation can be had." Townes' Texas Pleadings, 2d Ed., p. 258.¹

In the other sense, in addition to the persons included in the first, according to the same authority, there are embraced "also such other persons as may be required to be before the court in order that one or more of the ancillary or subordinate purposes of the suit can be accomplished." Id. "Necessary parties" in the latter sense means the same as "proper parties", as is well shown by Judge Townes' quotation from Pomeroy, as follows: "In all equitable actions, a broad and most important distinction must be made between two classes of parties defendant; namely, (1) those who are `necessary' and (2) those who are `proper.' Necessary parties, when the term is accurately used, are those without whom no decree at all can be effectively made determining the principal issues in the case. Proper parties are those without whom a substantial decree may be made, but not a decree which shall completely settle all the questions which may be involved in the controversy, and conclude the rights of all the persons who have any interest in the subject matter of the litigation. Confusion has frequently arisen from a neglect by text writers, and even judges, to observe this plain distinction. Parties are sometimes spoken of as necessary when they are merely proper. Thus, because a decree cannot be rendered which shall determine the rights of certain classes of individuals without making them defendants in the action, they are not unfrequently called necessary parties; or, in other words, because they must be joined as defendants in a particular suit, in order that the judgment therein may bind them, they are denominated `necessary' parties absolutely. Such persons are `necessary' sub modo — that is, they must be brought in if it is expected to conclude them by the decree; but to call them `necessary'absolutely is to ignore the familiar and fundamental distinction betweenthe two classes of parties which have just been mentioned. Thisinaccurate use of language would make every person a necessary party, whoshould actually be joined as a co-defendant in an equitable action" (Italics ours.) Id.

If "every party whose joinder in the suit is necessary to the securing of full relief in `such suit' is a necessary party in the sense that term was used in subdivision 29a", as the majority opinion quotes from Pioneer Building Loan Ass'n v. Gray, 132 Tex. 509, 125 S.W.2d 284, then it is necessarily true that all parties to any suit are necessary parties, unless as to them plaintiff's petition without reference to any question of venue would be subject to a timely plea of misjoinder of parties. This would include all proper parties since a plea of misjoinder of parties should never be sustained as to any proper party.

Of course, it is possible that the Supreme Court, contrary to its previously expressed views, is now of opinion that "necessary parties", as the term is used in exception 29 9a, includes all proper parties. But, if so, why continue to give apparent approval to definitions of the term which clearly and certainly exclude mere proper parties? And why was Mrs. Scott, the mother, held to be not a necessary party in Scott v. Scott,133 Tex. 1, 123 S.W.2d 306, 313, 126 S.W.2d 626? That was a suit for divorce brought in Dallas County, the place of plaintiff's residence. The venue was proper under exception 16. Undoubtedly it was proper to join with such action one for division of property. In fact, it is said in the opinion that "Where the jurisdiction of the divorce court is invoked in the divorce action by either spouse to determine the rights of property, as between such spouses, the part of the divorce suit regarding property is a part of the very divorce action itself." The opinion further says, "If the facts justify, the divorce court can, as between the wife and the husband, fix a trust for the benefit of the wife on the husband's separate property." The wife in that divorce suit was seeking to do just that. Since, however, the legal title to the land was in defendant's mother, plaintiff, in order to establish that her husband owned the land, sought to show that the mother held the legal title in trust for plaintiff's husband. Certainly no authority can be found to support the proposition that the mother was not at least a proper party to the suit. The question, therefore, looms large whether the Supreme Court really means to hold, as the logic of some of its decisions imply, that necessary parties, as that term is used in exception 29a, means simply proper parties.

If the correct interpretation of exception 29a be that if venue of a suit as to any defendant is proper under any one of the 30 or more exceptions (other than 29a) to the general rule and under exception 29a all persons who are proper parties to the suit, as brought, arenecessary parties and may be joined therein, then, I think, it is pertinent to ask what is to prevent the mere allegation of a nonexistent cause of action against one defendant within a particular exception and by joining therewith, agreeably to the rule intended to avoid a multiplicity of suits, the real cause of action against a nonresident defendant, having the effect to deprive the latter of his privilege to be sued in the county of his residence? For example, suppose A sues B, a transient person, in C County where he is found, and alleges the same cause of action against D, a resident of F County, seeking to hold both defendants liable for a tort. The venue as to B would be proper under exception 2. But suppose B had committed no tort, was guilty of no wrong, the circumstances being such, however, that D was unable to show that B had been made a defendant only for the fraudulent purpose of fixing the venue. Plaintiff's petition would constitute "the best and all-sufficient evidence" that D was a proper party to the suit. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1302. The only other venue facts would be that B was a transient person, and that he was found in the county where the suit was brought. Thus, it appears it would be possible for D to be deprived of the privilege of being sued in the county of his residence by the simple allegation of plaintiff's petition "never perhaps intended to be proved." Oakland Motor Car Co. v. Jones, Tex. Civ. App. 29 S.W.2d 861, 865.

The rule evolved as to exception 4 to prevent such a consequence could have no application. Exception 29a never applies except where some exception other than 4 exists to sustain the venue as to at least one of the defendants. Pioneer Building Loan Ass'n v. Gray, supra; Henderson Grain Co. v. Russ, supra.

Under exception 4 the proof of a cause of action against the resident defendant is required simply to protect a nonresident defendant, claiming his privilege, from being concluded by the mere allegations of a cause of action against the resident defendant. In other words, such proof is required in order to show that one alleged to be a defendant residing in the county is in fact a defendant, in that plaintiff really has a cause of action against him. But certainly no court can hold that, included in the venue facts stated in exception 2, are the several elements of a cause of action against any defendant.

It is true that if the term "necessary parties" is to be construed as meaning what it ordinarily imports and as defined in Commonwealth Bank Trust Co. v. Heid Bros., 122 Tex. 56, 52 S.W.2d 74, and First Nat. Bank v. Pierce, supra, it will have a rather limited application. That it is possible for it to have some application, I think, our illustration in Oakland Motor Co. v. Jones, supra, demonstrates. The legislative act by which exception 29a was added to the other exceptions, expresses no intention that it was to have a wide application any more than it expresses the intention that it was to have a narrow application. It is an elementary rule of statutory construction that exceptions to a general provision are to be strictly construed. In my opinion, if no case could be imagined in which exception 29a could be applicable that would not warrant a construction to the effect that necessary parties mean simply proper parties; but in view of the fact that it can have application under some circumstances with no expressed intention that it is to have any wider application, it certainly seems to me to require the construction that the term is used in its ordinary sense.

A great deal more could be said in deprecation of the uncertainty and confusion sure to result from the present state of the decisions; but I shall end the discussion by referring to the minority opinion of the writer on the same subject in H. J. Moreland v. Hawley Independent School District, Tex. Civ. App. 163 S.W.2d 892, handed down on the same date as this opinion.

¹ The Supreme Court has approved this definition of "necessary parties" in construing exception 29a. First National Bank v. Pierce,123 Tex. 186, 69 S.W.2d 756. So far as I know, this definition has never been repudiated, although it has been ignored in application.