Opinion
No. 3920.
November 20, 1930. Rehearing Denied December 31, 1930.
Appeal from District Court, Dallas County Towne Young, Judge.
Suit by Grace Fitzgerald, as trustee in bankruptcy of the Collin County Realty Company, bankrupt, against John Henry Kirby and others. From an order overruling his plea of privilege to be sued in the county of his residence, named defendant appeals.
Affirmed.
The suit was by appellee Miss Grace Fitzgerald as trustee in bankruptcy of the Collin County Realty Company, a corporation, bankrupt, as plaintiff, against appellees S.W. Sibley, a resident of Dallas county, the Dr. Pepper Company, a corporation alleged to have its principal office and place of business in the city of Dallas, in said Dallas county, the American Exchange National Bank, which had its office and place of business in said city, O. S. Carlton, a resident of Harris county, and appellant John Henry Kirby, also a resident of said Harris county, as defendants. It was to recover the title and possession of certain certificates covering shares of the capital stock of the Dr. Pepper Company, alleged to be the property of said realty company, for damages in the sum of $250,000 for an alleged conversion of said certificates by the defendants other than the Dr. Pepper Company, and for an injunction restraining said Kirby, said bank, and said Dr. Pepper Company from transferring said stock, or causing same to be transferred, on the books of said Dr. Pepper Company. The suit was commenced in said Dallas county, where it was being prosecuted when appellant, Kirby, by a plea in due form duly filed in said court, asserted a right he claimed to be sued in said Harris county, where, as before stated, he resided. Appellant's said plea was controverted by one filed by appellee Fitzgerald, in which she claimed a right to maintain the suit in Dallas county by force of exceptions 4, 9, 10, and exception 29a (as added by Acts 1927 [1st Called Sess.] c. 72, § 2) to the provision in article 1995, R.S. 1925 (Vernon's Ann.Civ.St. art. 1995), that "no person who is an inhabitant of this State shall be sued out of the county in which he has his domicile." Said exceptions are as follows:
"4. If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides."
"9. A suit based upon a crime, offense, or trespass may be bought in the county where such crime, offense, or trespass was committed, or in the county where the defendant has his domicile.
"10. Suit for the recovery of personal property may be brought in any county where the property may be or where the defendant resides."
"29a. Whenever there are two or more defendants in any suit brought in any county in this State and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, then such suit may be maintained in such county against any and all necessary parties thereto."
The appeal by appellant, Kirby, is from an order overruling his said plea and refusing to transfer the cause to Harris county for trial.
McCormick, Bromberg, Leftwich Carrington, of Dallas, and Andrews, Streetman, Logue Mobley, of Houston, for appellant.
Bullington, Boone, Humphrey King, of Wichita Falls, and I. M. Williams, Jed C. Adams, and Coke Coke, all of Dallas, for appellees.
It appeared from evidence adduced at the hearing on the pleas referred to in the statement above that the stock of the Dr. Pepper Company in question had been issued to and in the name of the Collin County Realty Company, and that said realty company owned and had possession of same in March, 1925, when appellee Sibley, having wrongfully obtained possession thereof, delivered the stock certificates to appellee Carlton, in Dallas, to hold as security for a promissory note for $35,000 made by him to said Carlton and appellant, Kirby. In so obtaining possession of the stock certificates and using them as stated, Sibley was guilty of a conversion thereof. Motor Co. v. De Ford (Tex.Civ.App.) 282 S.W. 832; Oil Corporation v. Waggoner (Tex.Civ.App.) 273 S.W. 903; Gulf, C. S. F. Ry. Co. v. Bank (Tex.Com.App.) 270 S.W. 1008; Copeland v. Porter (Tex.Civ.App.) 169 S.W. 915; Houston T. C. Ry. Co. v. Patterson (Tex.Civ.App.) 192 S.W. 1103; Pittman v. Fox (Tex.Civ.App.) 228 S.W. 579; Land v. Klein, 21 Tex. Civ. App. 3, 50 S.W. 638. Such conversion was a "trespass" within the meaning of the exception numbered 9 set out in the statement above authorizing suit "upon a trespass" to be brought in the county where the trespass was committed, without reference to whether the trespasser resided in that county or not. Ward v. Odem (Tex.Civ.App.) 153 S.W. 634; Geary v. Word (Tex.Civ.App.) 259 S.W. 309; Rose Mfg. Co. v. Coppard (Tex.Civ.App.) 255 S.W. 993; Carver v. Merrett (Tex.Civ.App.) 184 S.W. 741. Appellee Carlton became a party to the conversion of the stock when, as security for the $35,000 note, he accepted the certificates of Sibley, knowing Sibley was not the owner thereof and not authorized to use same for such a purpose. Parkersburg Rig Reel Co. v. Golden (Tex.Civ.App.) 277 S.W. 1106; Nunn v. Padgitt (Tex.Civ.App.) 161 S.W. 921; Kempner v. Thompson, 45 Tex. Civ. App. 267, 100 S.W. 351; Focke v. Blum, 82 Tex. 436, 17 S.W. 770. Such acceptance having been in Dallas county, we think it is clear that the suit for the conversion, or trespass, thus accomplished, was maintainable in that county so far as it was against Sibley and Carlton. It appeared from said evidence (the trial court had a right to say) that the delivery of the note and stock certificates to Carlton and Sibley was in pursuance of an agreement between them and appellant, Kirby, for "swapping credit," whereby Sibley was to make and deliver the $35,000 note to Carlton and Kirby, secure same with the stock, and receive therefor four notes (three for $10,000 each and the other for $5,000) made by Carlton and indorsed by Kirby. We think the trial court had a right to say, in view of said agreement, that the delivery of the $35,000 note and stock certificates was to Carlton, not only on his own account, but also as the authorized agent of appellant, Kirby, and that the latter, by Carlton's acceptance of same for him, became a party to the conversion in Dallas county and liable to be sued there. Ward v. Odem (Tex.Civ.App.) 153 S.W. 634; 38 Cyc. 2056. It follows that we think the trial court had a right to conclude it appeared the suit was within said exception 9 to the venue statute, and to overrule appellant's (Kirby's) plea on that ground. In that view of the case, it is not necessary to determine whether the ruling of the court was sustainable on the other grounds, or any of them, set up in the controverting plea, or not.
The judgment is affirmed.
On Motion of Appellant for a Rehearing.
Appellant insists the conclusion reached here that it appeared the suit was maintainable against him in Dallas county by force of exception 9 to the provision in article 1995, R.S. 1925, referred to in the opinion affirming the judgment, was unwarranted, because without the support of allegations in appellee's controverting affidavit showing him to have been guilty of conversion of the stock in that county. The allegations which we thought, and still think, authorized the admission of evidence on which that conclusion was based, were as follows: "That the defendant John Henry Kirby * * * acting in pursuance of an unlawful agreement theretofore made between himself, said John Henry Kirby, and the said defendants S.W. Sibley and O. S. Carlton, unlawfully converted all of said corporate stock to his, the said John Henry Kirby's own personal use and benefit. * * * This is a suit for conversion of the stock sued on, and for damages thereto, brought in the district court of Dallas County, Texas, where the wrongs complained of in plaintiff's petition (made a part of the controverting affidavit) and the torts therein alleged as committed by the defendants, and the trespass complained of, were committed in Dallas County, Texas."
The motion is overruled.