Venue of the cross-action was sought to be maintained in Tarrant County on two grounds.
The first was that Zachry and Hutches had made agreements in restraint of trade. The trial court found that appellee failed to make out a case in this respect, and the state of the evidence is not such as to warrant our overturning this finding.
The second was that Zachry, being the real party in interest, as plaintiff, was subject to suit in Tarrant County on the cross-action under the following rule:
"By instituting a suit in a county other than that of his residence the plaintiff submits to the jurisdiction of the court of that county as to all matters growing directly out of the subject matter of the suit; and thereby he waives his right to insist on his privilege to be sued in the county of his domicile on a cause of *Page 470 action of that character asserted in a crossaction * * *." 38 Tex.Jur. p. 403.
Granting that Zachry was the real plaintiff in interest when the suit was filed, it was shown without dispute that he assigned his interest in the cause of action to Hutches before the cross-action was filed against Zachry. The majority opinion seems to rely on an implied finding of the trial court that Zachry had not in fact assigned the cause of action to Hutches. Appellee Robertson has not made any such contention in this court. All of the arguments in his brief are founded on the premise that Zachry had assigned the cause of action to Hutches before the cross-action was filed which named Zachry as a cross-defendant, and are to the effect that venue lay in Tarrant County despite the fact that such assignment had been made. The following statement of fact is taken from appellee's brief filed in this court:
"It developed after the first amended cross-action, and before the filing of the second amended cross-action, Zachry had transferred his ownership in the plaintiff's cause of action to Hutches."
The opinion of Mr. Justice Speer suggests that the record does not show that Hutches had even heard of the assignment, or that it had been delivered to him. The assignment was introduced in evidence by the attorneys of record who represented Hutches in the suit. They also represented Zachry, but their representation of Zachry did not lessen the effect of their being also the attorneys of record for Hutches. I believe that it would be improper to presume that Hutches had never heard of or that there had been no delivery to him of a written agreement between him and another which appears to have been introduced in evidence by his attorneys of record, even though his attorneys also represented the other party to the agreement. The only reasonable inference from the record, it seems to me, would be that the attorneys who represented the two parties to the contract were acting under authority from both of them when they introduced the written assignment in evidence, when there is nothing in the evidence to destroy such a presumption. An attorney of record has, presumably, broad authority in representing his client in court, 5 Tex.Jur., p. 452, and I am unwilling to say that the record before us supports an implied finding by the trial court that the attorneys representing both Hutches and Zachry introduced in evidence a written agreement between their two clients which one of the clients had never heard of and which was not effective as between the two clients. Until the contrary is shown, at least by some fact or circumstance, I believe that it is our duty to presume that there was no such abuse of authority by the attorneys who appear for Hutches and Zachry in this case.
Also, the case seems to me to be a proper one for the application of Rule 419, which provides that any statement by appellant in his original brief as to the facts or the record may be accepted by the court as correct unless challenged by the opposing party.
Since Zachry was neither a nominal party nor a party in interest, as plaintiff, when the cross-action against him was filed, the cross-action against him is in the same category as a cross-action against a third party. "Thus the defendant in the main action cannot, by bringing a cross-action against a person not a party to the original suit on an independent cause of action, defeat such person's privilege to be sued in the county of his residence. * * *" 38 Tex.Jur., p. 402.
If the views above expressed are incorrect, it seems to me that in any event some of the grounds of recovery asserted in the cross-action were distinct and severable from the controversy in the main suit. The alleged conspiracy in restraint of trade was not a matter growing out of or incidental to the subject matter of the main suit, nor was the matter of profits alleged to have been lost on pecans which defendant would have purchased from Ara and sold to persons other than Hutches except for the alleged wrongful acts of Zachry and Hutches in interfering with the contract between Ara and defendant. "As shown in the article that treats of venue, a defendant is entitled to be sued in the county where he resides, unless the case comes *Page 471 within some of the statutory exceptions. This is true of a defendant in a cross-action on a cause of action which is distinct and severable from the controversy in the main suit." 38 Tex.Jur., p. 402.
Rule 97, Rules of Civil Procedure, can not be regarded as changing the law of venue above stated. Rule 816 expressly provides:
"These rules shall not be construed to extend or limit the jurisdiction of the courts of the State of Texas nor the venue of actions therein."
See Southwestern Peanut Growers Ass'n v. Womack, Tex. Civ. App.179 S.W.2d 371.
It is my opinion that the suit alleged in the cross-action against Zachry should be transferred to the county of his residence; and if I be wrong in this view, it is my opinion that the judgment overruling the plea of privilege should be reversed, and that the matter should be remanded for another hearing on the venue question to determine what, if any, of the cross-action is so connected with the subject matter of the original suit as that venue thereof may be maintained in Tarrant County under the rules above stated.