Reeder Lynch v. E. B. Hayes MacHinery

257 S.W. 947

• Court: Court of Appeals of Texas
• Decided: December 20, 1923
• Docket: No. 2832.
• Status: Published

Opinion

LEVY, J.

(after stating the facts as above). The propositions stated in the appellants’ brief present, in effect, the two points in view: (1) That the venue of appeb lants’ suit was in Bowie county under both section 7 and section 24 of -article 1830, R. S., because the alleged fraud was committed in Bowie county and the appellee is a private corporation;-and (2) that section 17 of article 1S20, R.p -S., has no application, because the injunction operated to restrain the sheriff from executing a given execution only because it .was erroneous in amount, and in no wise to restrain the enforcement of the judgment itself upon the issuance and levy of a proper execution under said judgment. The injunction was granted in terms restraining “all things as prayed for in the within petition.” The petition therefore presents the question for consideration. The petition; properly construing it, was not entirely a suit for damages founded on a tort. The petition further sought to have the claim lor damages lor the alleged tort set off the judgment obtained in the county court of Harrison county due by the appellants to the E. B. Hayes Machinery Company. And there was sought an injunction to restrain the execution of the judgment in Harrison county upon the two grounds: (1) In order to correct an alleged excessive amount stated in the face of the writ; and (2) in order to arrest its enforcement for any amount against “plaintiffs’ property’* “during the. pendency of this suit,” in order “that,” quoting, “the remainder of said judgment of the said E. B. Hayes Machinery Company be, applied as a credit on the plaintiffs’ judgment as recovered in this suit in this court.” Then there is a joinder of two causes of action, a legal action lor damages for a tort, and an equitable action to stay enforcement of a previous legally existing judgment in order to constitute it the basis of a set-off. If there are legal or equitable reasons sufficiently alleged to hold up and stay the enforcement of that original judgment, and we do not determine that question, then a cause of action is stated, with an injunction issued according to its terms, having for its object to stay the execution “of a judgment” rendered in another court' in a different county. Thus the joinder which the appellants have vountarily elected to make, if permissible, operates to merge both causes, for damages for tort and for set-off of the Harrison county judgment, into one suit with, the same plaintiffs and the same defendant.

The joinder forming, as it does, “a suit” of itself, in which county is the venue? Each cause has a separate place of trial according to the statute; and it is elementary that the same venue must control both causes in order to hold a joinder valid as against a plea of privilege. It is believed that under the statute a joinder, as here, would not be authorized unless the suit be determined in the county court of Harrison county. Section 17 of article 1830 expressly provides that a suit to enjoin “the execution of a judgment * * * shall be brought in the county in which such judgment was rendered.” Also, article 4653, R. S. And section 30 of article 1830 specially provides that—

“Whenever, in any law authorizing -or regulating any * * * character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which jurisdiction may be so expressly given.”

These articles are mandatory, and even, as held, jurisdictional to the courts. Baker v. Orosbyton South Plains Ry. Co., 107 Tex. 566, 182 S. W. 287. Therefore, and for these reasons, the articles relied upon by appellants do not control. We can only decide the question of venue; but it is suggested a serious legal reason exists against the maintenance of the suit, as pleaded.

The judgment is affirmed.