W. F. Stewart & Co. v. Gordon

Stayton, Associate Justice. The plea to the jurisdiction, filed by the persons who composed the firm of W. F. Stewart & Co., negatived the fact that their association was other than partners. It alleged the residence of each of them in the county of Galveston, at the time the action was brought, and its continuance for a long time prior thereto until the filing of the plea. It asserted that Bell, who was a resident of Orange county, was no party to the contract sued upon, and that he was made a party defendant for the fraudulent purpose of conferring jurisdiction on the court. It denied that they had contracted in writing to perform any obligation in Orange county. Such was also the effect of the pleadings of the defendant Bell. It does not appear upon what ground the court below sustained the exceptions to the pleas to the jurisdiction. These pleas only went to the cause of action based on the contract alleged to have been made by all the defendants with the plaintiff. In so far as the action was one upon the contract set up in the petition, the pleas were good, and the exceptions should have been overruled. The evidence introduced on the trial was ample to prove the pleas true. The judgment in favor of the plaintiff for $21.90, with interest from August 10, 1880, would indicate that the court found that sum to be due on the contract sued on, for it was alleged to be due on that date. That [347] judgment,, however, was only against the persons composing the firm of W. F. Stewart & Co., and the entire judgment went in favor of the defendant Bell. This could not have been if the court had found that Bell was party to the contract, as alleged by the plaintiff. Proof of a contract made with the plaintiff by only a part of the persons who were alleged to have made the contract with him, would not have authorized a judgment in his favor. These matters but illustrate the fact,, that the exceptions to the pleas to the jurisdiction should have been overruled, and that the facts stated as to the purpose for which defendant Bell was made a defendant were true. The plaintiff sought to join with his action based on the contract made with him by Stewart & Co., an action against the persons who composed that firm, and against the defendant Bell, for a malicious prosecution alleged to have been instituted in Orange county. To this, the defendants pleaded a misjoinder of actions. The two causes of action were separate and distinct. The one based on contract and the other on tort. The general rule is, that such actions cannot be joined. Stephens’ Pleading, 267; 2 Chitty’s Pleading, 199; Pomeroy’s Remedial Rights, 356, 479, 483. In view of the facts developed in this case, if such actions can be joined at all, even under the liberal course of procedure adopted in this state, there is an insuperable objection to such joinder in this case. It is evident that Bell was not a party to the contract sued upon, but, under the pleadings, he was properly a defendant to the action for tort. Thus, we have in this case an action on a contract made by three persons with the plaintiff, joined with one for a tort alleged to have been committed on him by four persons. The causes of action which may be joined, must be such as the plaintiff may enforce against each of the defendants. The defendant Bell, under the pleadings of the other defendants, and under the evidence offered on the trial, is evidently not liable on the contract sued upon, as it was held upon the facts by the court below. He was made a defendant on that branch of the case solely for the purpose of giving to the court jurisdiction over the other defendants, who were exempt, under the law, from suit in Orange county. As to so much of the case, it should have been dismissed as to Stewart & Co., on hearing. As to so much of the case as claimed damages for malicious prosecution, the court below, most probably, found in favor of the defendants; if not, the facts proved would not [348] have justified any other finding. As all the facts bearing on both causes of action are contained in the record, and as the cause was tried without a jury, such disposition of the case will be here made as ought to have been made in the court below. The judgment of the court below will be reversed, and the pleas to the jurisdiction, as to that part of the cause of action based on contracts, will be here sustained, and so much of the action dismissed. In so far as a recovery is sought for malicious prosecution, the evidence did not justify a judgment for the plaintiff, and as to that cause of action, judgement will be here rendered, that the plaintiff take nothing, and that the plaintiffs in error recover from him all costs in the court below and in this court. It is so ordered. Reversed and Rendered. [Opinion delivered January 26, 1886.]