This suit was filed by Littlejohn, as plaintiff, against the insurance company in Harrison county. The petition alleged that the plaintiff resides in Harrison county; that the defendant is a foreign corporation having a local agent upon whom service could be had in Harrison county. We construe the petition as a suit upon a contract entered into between the plaintiff and the defendant, alleging a breach of that contract by the insurance company alone. The amount sued for is claimed as the damages sustained by the plaintiff as the result of that breach. After denying the material facts alleged in the plaintiff's original petition, the insurance company upon other averments sought to have Martin and Bonner, parties to an indemnity bond, made parties defendant in this suit. The prayer for relief was that, if the plaintiff recovered a judgment against it, the insurance company, that e the latter have corresponding judgment over against the defendants Martin and Bonner. This answer was filed apparently before the a case was called for trial. The plaintiff interposed no objections to that effort to bring into the case the new parties mentioned. Martin and Bonner after being cited each appeared and filed a separate plea of privilege. Martin alleged that he resided in Jefferson county, and Bonner alleged that he resided in Angelina county. Each claimed the right to be sued in the cross-action of the insurance company in the county in which one of them resided. Each plea was in due form and verified as required by statute. The plaintiff made no reply to those pleas. The insurance company filed a controverting affidavit which alleged that Martin and Bonner were necessary parties to that controversy. As evidence of that fact the pleadings of the plaintiff and the defendant insurance company were referred to. That Martin and Bonner did not reside in the county of Harrison was not disputed. The controverting affidavit repeats, in substance, the facts stated in the cross-bill. It was agreed by the parties interested that the issues raised upon the pleas of privilege and the facts stated in them and the controverting affidavits were true. Upon that agreement as to the facts the court below entered a judgment sustaining the pleas of privilege of Martin and Bonner, and ordered the suit as to them to be transferred to Angelina county. It was further ordered that "the clerk of the court immediately make out a correct transcript of all the orders in that cause, certify thereto officially, and transmit them with all the original papers which relate to the defendants Martin and Bonner to the clerk of the district court of Angelina county."
Under the provision of article 1848 of the Revised Civil Statutes either the plaintiff or the defendant may bring in new parties to the suit at any time before the case is called for trial, upon such terms as the court may direct. Conceding that Martin and Bonner were necessary parties to this suit, they could not be brought into it over their objection. St. L. S.W. Ry. Co. v. McKnight, 99 Tex. 289, 89 S.W. 755; Hickman v. Swain, 106 Tex. 432, 167 S.W. 209; Behrens Drug Co. v. Hamilton et al., 92 Tex. 248, 48 S.W. 5. In this case the original defendant, the insurance company, is a foreign corporation, and was sued in a county where it had an agency, under the provisions of subdivision 24 of article 1830. Had the suit been in the county of the domicile of the insurance company, the situation would have been materially different. To hold a nonresident defendant in a suit of this character, it must be shown that he is a necessary party, and that the suit is pending in the county of the residence of a *Page 598 codefendant, and not in a county where the latter may be sued under some other exception to article 1830.
It also appears from an inspection of the pleadings filed in this case that Martin and Bonner are not even proper parties to this suit. They are in no way involved in the controversy between the plaintiff and the insurance company. The most that can be said is that the insurance company is claiming a reimbursement from them in the event it is held liable to the plaintiff for the breach of the contract alleged. That is not sufficient. U.S. F. G. Co. v. Fossati, 97 Tex. 503, 80 S.W. 74. Moreover, the cross-bill, when considered in connection with the plaintiff's original petition, to which it refers, does not state a cause of action in any event against Martin and Bonner. It is clear, therefore, that Martin and Bonner cannot, over their objection, be held in this suit in Harrison county. To that extent I agree with my associates. Holloway v. Blum, 60 Tex. 627. I differ with them only as to the disposition that should be made of Martin and Bonner. Upon the presentation of the pleas of privilege the trial court might have pursued one of two courses — he might have dismissed Martin and Bonner from the suit; or he might have ordered the transfer of the entire case to a county in which one of those defendants resided. It is true the statute provided that, when a plea of privilege is sustained, the defendant shall not be dismissed, but the case shall be transferred to the proper county. That provision was inserted for the benefit of the party interested in having the foreign defendants brought into the pending controversy, in order to save him from the expense and the consequences of a delay in filing another suit. In this case the insurance company is the only party who can complain of a dismissal of Martin and Bonner. In order to claim the benefit of the statutory transfer, that company must present a situation to which the requirements of the statute regulating the procedure of a transfer can be applied. In this instance its cross-action is embraced in the same instrument of pleading which answers the plaintiff's petition. It is therefore impossible to separate them, for the purpose of transfer, without destroying the legal standing and effect of both its original answer and its cross-bill. It has been suggested that in such cases the court may require the parties to replead in order to make a compliance with the statute practicable. Rutledge v. Evans, 219 S.W. 218. But, if the parties should refuse to obey the order to replead, the court could only order a dismissal of those not properly joined in the suit. What he might do after such a refusal he had the power to do before. The insurance company could not, by thus blending its pleadings so as to make a compliance with the statute impracticable, prejudice the right of Martin and Bonner to be released from the suit in Harrison county. While the plea of privilege is not, strictly speaking, one raising the objection of misjoinder of defendants, it is nevertheless a legal objection to the exercise of the jurisdiction of the court over the person of those filing the plea, and is such a protest as may challenge the court's attention. Under the provisions of article 1848 the bringing in of new parties defendant is, to some extent, within the descretion of the court. Rush v. Bishop, 60 Tex. 177; Coleman v. Garvin,158 S.W. 185. He may exercise that discretion in eliminating parties improperly brought into the case when his attention has been called to the matter in some legal manner. There is authority for holding that dismissal under such circumstances is proper. Ft. Worth H. M. Co. v. Smith et al., 149 S.W. 200. But if the parties mentioned could not have been legally dismissed from the suit, then the court should have transferred the entire cause, which is clearly the procedure contemplated when a transfer is to be made. This in fact is but one "cause." If the plaintiff in the cause failed to recover a judgment, all of the defendants would be discharged. The court had no right to divide it and make two "causes." The plaintiff alone could object to the transfer of the entire cause to another county. He has interposed none in this case. But, even if he had, it would have been unavailable. Had he filed the suit against all of the parties in Harrison county, either Martin or Bonner could have had it removed for the reasons stated in the first group of cases cited. He cannot evade that right by permitting their retention in the suit when he might upon objection have had them dismissed. His failure to object is, in effect, an acquiescence in the attempt of the insurance company to make them parties.
My conclusion is this: The "cause" is one and inseparable; the court has no authority to divide it and make two "causes." Martin and Bonner cannot over their objection be held in Harrison county. Their right to be eliminated from the suit in that county cannot be prejudiced or defeated by either the plaintiff or the defendant.
I conclude that this judgment should be reversed, and the cause remanded, with directions to either dismiss Martin and Bonner from the suit, or transfer the entire case to another county. If this is not done, it will be interesting to know how the clerk of the trial court can comply with the order that has been there made. *Page 599