Thomason v. Sparkman

HIGGINS, J. Appellant, a resident of Dallas county, brought this suit against H. L. Webster and J. B. Sparkman to recover damages. Spark-man was alleged to be a resident of Cooke county. The residence of Webster was alleged to be unknown. It was alleged plaintiff employed Webster to manage a farm in Cooke county for a year; that Webster breached the contract and Sparkman wrongfully induced him so to do and defendants had converted certain property upon the farm. Sparkman filed plea of privilege which was sustained and the venue of the suit as to him transferred to Cooke county. The plaintiff appeals from this order contending the venue was properly laid in Dallas county, under subdivision 3 of article 1995, R. S., and subdivision 29a, as added by Acts 1927, 1st Called Sess., c. 72, § 2 (Vernon’s Ann. Civ. St. art. 1995, subd. 29a). The fact that the residence of Webster was unknown did not authorize the maintenance of the suit against Sparkman in Dallas county under subdivision 3 of the venue statute. U. S. G. & O. Co. v. Duffy (Tex. Civ. App.) 8 S.W.(2d) 278; Kennedy & Gafford v. Reppond (Tex. Civ. App.) 226 S. W. 140; Sublett v. Hurst (Tex. Civ. App.) 164 S. W. 448. Nor is the plaintiff aided in this respect by section 29a for the liability of defendants, if any, was several, as well as joint, and Spark-man was not a “necessary” party to the suit against Webster in Dallas county. Wool G. C. S. Co. v. Edwards (Tex. Civ. App.) 10 S.W. (2d) 577; Justin McCarty, Inc., v. Ash (Tex. Civ. App.) 18 S.W.(2d) 765; Fidelity Union Fire Ins. Co. v. First Nat. Bank (Tex. Civ. App.) 18 S. W. 800; Oakland M. C. Co. v. Jones (Tex. Civ. App.) 29 S.W.(2d) 861; Gulf R. Co. v. Lipscomb (Tex. Civ. App.) 41 S.W. (2d) 248; Woolridge v. Owens (Tex. Civ. App.) 44 S.W. (2d) 1061; Ellwood v. Pollard (Tex. Civ. App.) 46 S.W. (2d) 731; Matthews v. Hedley Motor Co. (Tex. Civ. App.) 47 S. W. 661. The plea' of privilege was properly sustained. Affirmed.