Wm. E. Kendall v. S. A. Hackworth, 66 Tex. 499

Walker, P. J., Com. App. The suit having been brought in Fort Bend county, where jurisdiction rightfully belonged under the case-stated in plaintiff’s original petition, that court would retain its jurisdiction over the case in respect to any supplemental cause of action subsequently engrafted on the original cause of action by an amended petition, unless such amendment set up such additional cause of action fraudulently to deprive the defendant of his personal privilege to litigate it in the county of his residence.

To hold otherwise would be to attach a condition to t]p.e right to amend the cause of action as originally declared on, incompatible with the spirit of the law regulating amendments, and which the statute has not prescribed.

If a party has been properly sued in a county other than that of his domicil, the subsequent proceedings in respect to the matters that may be litigated in it under amendments varying the character of the issues to be tried, and what subject matters may be added by way of amendment for determination in that suit, are to be determined not on a question of privilege as to where such matters may be tried, but according to the rules of law which determine what may be added by way of amendment to the subject of litigation as it was presented in the original petition.

The general policy of the law is to avoid a multiplicity of suits; and it favors the adjustment of the rights of the parties in one suit if it can be done consistently with those rules of law, which for their own reasons fix a limit and a boundary to the liberal rule which thus encourages the settlement of controversies in one suit where it can be done, so as not to drive a party to another suit and before another forum to adjust that which may be settled in that jurisdiction before which the parties already are.

The right given by the statute to be sued in certain classes of actions in the county of his residence, is to be construed relatively to and with other statutes and rules of pleading and procedure, and when the suit is brought in a proper county, although it be not in that of the defendant’s residence, in the absence of fraud, ordinarily, the suit will proceed subject to the rules of law common to all other cases, unaffected by a question of venue.

This cause having been, by consent of parties, removed, by change of venue, to Harris county, where the defendant resides, and his plea in abatement and exceptions to the jurisdiction having been filed after the cause was pending in the district court of Harris county, it requires a nice discrimination, we think, to perceive the merit of defendant’s objection.

If his privilege was to be sued in Harris county, the change of venue to that county had the effect to accord to him all the benefits contemplated by the privilege the statute accords to him, and in such case, the law, which does nothing vainly, would not, whilst the cause was pending in Harris county, dismiss it, in order that it might be brought anew in that county.

The error assigned, it will be noticed, does not call in question the propriety of the court’s allowing the plaintiff to set up, by way of amendment, those matters concerning which the defendant urges he was entitled to be sued in the county of his residence. We are of opinion that if the subject was otherwise proper as an amendment, the defendant cannot successfully maintain the proposition that it must be rejected from the suit because of his residence elsewhere than in Fort Bend county; that his privilege to be sued in the county of his residence has no proper application to the case.

We think the court érred in refusing to permit defendant to introduce evidence for the purpose of showing the mistakes in the report of the auditor, that were designated in the written objections and exceptions to the report, filed Hay 10, 1883. The plaintiff’s grounds of objections, first, that the exceptions and objections had not been properly made and presented to the court, and second, because the objections and exceptions to the report were not presented as pleadings, before the trial began, were not sufficient.

Ho special reason seems to have been offered to support the first ground, nor is any apparent; and as to the second, we know of no rule of practice or principle of pleading that requires objections and exceptions to the correctness of items of an auditor’s report to be treated as pleadings, and to be read as such on the presentation of the case to the court and jury on the trial.

Where the objection relates to the form of the report or its validity, as a compliance with the order of the court requiring it to be made, proper practice would perhaps, require such to be presented to the court for its action before going into the trial; but objections to the report which relate to the correctness of the matters contained in it, serve the purpose of admitting evidence as to such items to contradict the report in those particulars. R. S., 1473; 46 Tex., 10; 38 Tex., 523; 44 Tex., 623.

The report, with reference to matters not properly arising under the pleadings, should, on exception, be excluded from the jury. 53 Tex., 251. The court, it would seem from the bill of exceptions, was influenced in rejecting the evidence by the supposition that the defendant had abandoned or waived his written objections and exceptions because they had been referred to in his first amended answer and had been made a part of it, and he had not in his second amended answer made any reference to them.

The bill of exceptions recites that said exceptions and objections to the report were filed May 10, 1883, in the district court of Fort Bend county, and were endorsed with a separate file mark on that day; that they had been attached to and made a part of defendant’s first amended answer, and were attached to said answer when it was re-filed in Harris county after the venue was changed, but that they had never been endorsed with any separate file mark in Harris county.

The objections to the report had no such relation to the pleadings in the case as to affect that paper with the rule of the supreme court- for the government of the district court under which an amendment of an answer subsequently made, supersedes the antecedent pleading, and deems matters waived that were contained in the previous pleading, if not brought into the amendment which takes its place.

The objections and exceptions to the report were no part of the defendant’s answer •, it was a separate and independent paper, the scope and purpose of which was not connected with the answer in the sense of its constituting a part of it as such. Ho inference can fairly be drawn from the defendant’s second amended answer to warrant the belief that the defendant meant to relinquish his exceptions and objections to the report.

The plaintiffs’ case against the defendant as to the remedies sought under the amendments he made to his cause of action as it was presented in the original petition, rendered still more important to the defendant a reliance on the objections urged by him to the auditor’s report, and it would seem to require something-more definite and affirmative in its character than any of the matters recited in the bill of exceptions, to justify the court in construing his action as a waiver of such objections. For this error we think the judgment ought to be reversed.

In respect to the fifth error assigned, the tenor and effect of the defendant’s answer setting up particular settlements between the parties of certain subjects of their partnership affairs during the progress of their partnership, was to eliminate them from the partnership account remaining yet to be settled.

If they were once fairly settled between the parties, and the lands to which those settlements referred, were, as to the unsold balance of the respective tracts, divided between them, as to such property it ceased to be partnership assets and was thereby effectually withdrawn from the partnership business, and such a settlement, if fairly made, in the absence of fraud or mistake, would stand until reopened or set aside by appropriate proceedings for that purpose, which is not sought to be done on either of those grounds under the pleadings of the plaintiff.

Whether such settlements were in fact made was in issue, and it was a question as to the weight to be given to the evidence pro and con whether they were established to the satisfaction of the court.

The instruments in writing tending to support the defendant’s defense of settlement in regard to the lands referred to, were subject to be construed in determining their legal effect and the weight to be given them in the light of the facts surrounding the parties at the time they were executed, and parol testimony on the subj ect was before the court, and the court was not bound to accept as conclusive of the issue the instruments alone as isolated evidence from which to determine the matter.

It follows from this view that if the court had been satisfied from all the evidence that such settlements had been made, that the report of the auditor, in so far as it militated with such elimination of the account in respect to the lands concerning which the settlement was made, would of necessity yield, and in those particulars would have to be qualified so as to conform to the very truth and facts, and it would not, as to such items, afford a basis for ascertaining the true balance, if any, to which the plaintiff. would be entitled.

In respect to the appellant’s proposition that the court erred in disregarding his plea of the statute of limitations, and of laches and delays on the part of the plaintiff, and the evidence in support of it, we are not able to determine from the record what views of the law on that subject the court entertained or acted upon.

If the court was of opinion, from the whole evidence, that there had been no settlements made between the parties which operated to adjust any particular item, or items, or transactions, relating to their partnership affairs, but that their accounts had been, in effect, kept open between them, the statute of limitations could not have applied, because four years would not have elapsed at the institution of the suit, since the accrual of plaintiff’s right to sue for an accounting. R. S., Art. 3205.

But if, on the other hand, the account between the parties in respect to certain of their dealings, had become stated,” or had, as alleged, been settled and adjusted, as to them, the rules of law in respect to the running of the statute, and the equitable doctrine of stale demand, has application. We are not disposed, unnecessarily, to anticipate the questions that might be discussed in this connection under an assignment of error so general and indefinite as applied to the record before us.

We deem it sufficient in support of the suggestions we have made, to refer to the elementary writers on the subject in a very general way. See 1 Wood’s Collyer on Part., 456-462, 618, secs. 297-298, 398. *Note.—This opinion was delivered at Austin, and the record returned to Galveston. The record was misplaced, and hence it appears out of its due order.— Reporter. We do not regard it essential to further discuss the errors assigned, as those which we have considered reach, we think, sufficiently the merits of this appeal. We are of opinion that the judgment be reversed and the cause remanded.

Reversed and Remanded. [Opinion adopted June 23, 1885.]