Opinion
No. 3754.
October 24, 1929.
Appeal from District Court, Dallas County; E. M. Dodson, Judge.
Bill of interpleader by the West Lake Hunting Fishing Club against H. P. Dunahoe and others. An order sustained the plea of defendants to have the proceedings determined in the county of their residence, and complainant appeals. Affirmed.
The appeal is by the plaintiff from an order of the court sustaining the defendants' plea of privilege to have the interpleader proceedings determined in the county of their residence. The West Lake Hunting Fishing Club is incorporated under the laws of Texas, with office in Dallas, Tex. On July 30, 1928, the corporation entered into a written contract with H. P. Dunahoe, residing at Crow, in Wood county, to do the grading work required to form a dam and a spillway to its club lake, located in Wood county, Texas. The contract price of the grading was to be $4,100. Mr. Dunahoe was required to execute a bond, and he did so, with four sureties signing it. The bond was in the sum of $3,000, and stipulated, as material to state:
"That we, H. P. Dunahoe as principal, and W. W. Myers and Pete White and H. M. Dunahoe as sureties, are held and firmly bound to West Lake Hunting Fishing Club, of Wood county, Texas, as well as to all persons, firms and corporations who may furnish material for or perform labor on the work, building or improvements contemplated in a certain contract hereinafter mentioned, in the sum of $3,000.00 lawful money of the United States of America well and truly to be paid at Dallas, Texas, to the West Lake Hunting Fishing Club and to such persons, firms and corporations who may furnish material for or perform labor on the work, building or improvements contemplated in the contract hereinafter mentioned. This bond is made for the use and benefit of all persons, firms and corporations who may furnish any material or perform any labor for or on account of said work, building or improvements, and they and each of them are hereby made obligees hereunder the same as though their own proper names were written herein as such, and they and each of them may sue hereon."
Thereafter, on the 19th day of January, 1929, within the time stipulated in the written contract, H. P. Dunahoe fully completed the contractual improvement and work, which, being satisfactorily done, was duly accepted by the West Lake Hunting Fishing Club. During the time of the performance of the contract, and prior to its completion, the West Lake Hunting Fishing Club paid to H. P. Dunahoe, under the provisions of the written contract, the total sum of $2,300, and at the time of the acceptance of the work done under the contract held in its hands as the balance due the sum of $1,800. At the time of and prior to the date of the acceptance of the work by the appellant, H. P. Dunahoe had not paid all of the amounts due for labor performed, and the various parties having such claims gave notice thereof to the president of the West Lake Hunting Fishing Club. The defendant H. L. Haynes gave notice of a claim asserted by him of above $6,000. The defendant Frank M. Morrison gave notice of an assignment to him of the claim of H. P. and H. M. Dunahoe to the extent of $1,050. At a time about the time of acceptance of the work, the sureties on the bond, and presumably the principal thereon, voluntarily deposited in the First National Bank of Mineola, to the credit of the West Lake Hunting Fishing Club, $3,000, being the full sum of the bond, in payment and extinguishment of the labor claims due and unpaid by the contractor. The aggregate amount of all the labor claims was greatly in excess of the $3,000 and the $1,800 due on the contract price of the work.
Thereafter on January 31, 1929, the West Lake Hunting Fishing Club filed in the district court of Dallas county, Texas, the present proceedings. The petition, after setting up the execution of the contract for the work on the lake, and the execution of the bond, then alleged the full performance of the work and its acceptance, and the payment of $2,300 of the contract, with $1,800 yet due and unpaid, and the giving of notice of unpaid laborers of their accounts, and the placing of the sum of $3,000 by the sureties on the bond in the First National Bank of Mineola to the credit of the club, and tendered the $1,800 and the $3,000 into court, asking the court to "divide and decree said sum to the parties herewith joined who may be rightfully entitled thereto." The final prayer was:
"Wherefore, this interpleader prays that all parties named herein be served and cited to appear and answer herein and set up such rights as they may have hereto, and that upon final hearing hereof this interpleader, be discharged with its costs and attorney's fees, and that it be decreed that no liability attach against this interpleader other than the amount of the sums of money herewith tendered herein, and that upon final judgment it be completely and finally discharged under said contract and bond and rights asserted herein."
The parties named in the interpleader as defendants are the contractor, the four sureties on the bond, Frank M. Morrison and H. L. Haynes as creditors asserting a claim for labor, and the First National Bank of Mineola. It was conceded that all the defendants, except H. L. Haynes, a claimant, and Pete L. White, surety on the bond, reside in Wood county, Texas. Mr. Haynes resides in Upshur county; Mr. White resides in Smith county.
Turner, Rodgers Winn, of Dallas, for appellant.
J. H. Beavers, of Winnsboro, Jones Jones, of Mineola, and W. H. Barnes, of Forney, for appellees.
The West Lake Hunting Fishing Club insists that affirmative relief of an equitable nature was sought by the club on the bond, in addition to the interpleader of the conflicting claimants, and, as the bond in question was to be performed by its terms in Dallas, the venue would properly lie in Dallas county as to the principal and sureties on the bond under subdivision 5 of article 1995, Complete Tex. St. 1928, and as to the other named claimants new subdivision 29a would be applicable. The controversy was not an action for debt or on the bond by appellant against the contractor or the obligors of the bond; but, the money being in court, it became a claim of ownership and possession, or a possessory action as to the specific funds between the claimants. The present proceedings became and was in purpose and effect, we think, one in which the West Lake Hunting Fishing Club admits its obligation to pay the balance of $1,800 due on a contract, completely performed and the work accepted, and admits custody and control of $3,000 voluntarily delivered by the obligors of the bond, to be paid to or contributed towards payment of rival claimants. Such sums of money were tendered into court with the request "that this court divide and decree said sums to the parties herewith joined who may be rightfully entitled thereto, and that upon such distribution, both as to the $1,800 and the sum of $3,000 herewith tendered, this complainant be fully and finally discharged from any and all liability to any parties herewith joined, or that may hereafter be joined, or that may hereafter assert claims against it."
The allegations of the petition and the evidence make a good cause for interpleader of the rival claimants to the fund; and, this being so, the remedy of interpleader was allowable to the appellant. But the appellant whose domicile was in Dallas cannot require all the parties to interplead in that county. None of them reside there, and they cannot be drawn into that jurisdiction and required there to interplead. It is not allowable to a complainant at all events to seek the forum or county of his choosing for the institution of the proceedings. Such character of proceedings, as in ordinary suits, shall be tried in the county of the residence of a defendant against whom substantial relief is prayed. That was the ruling and intended ruling in Rochelle v. Pacific Express Co., 56 Tex. Civ. App. 142, 120 S.W. 543. In that case J. F. Rochelle, a rival claimant to the fund, resided in Bowie county, where the express company filed the proceedings, and consequently that county was the proper county, or "proper forum," for the express company to have filed a complaint of interpleader.
It is thought that the trial court correctly decided the defendants' application, and made the proper order thereunder, and therefore the judgment is affirmed.