Petition — Cogdell v. Fort Worth National Bank

Der

MICHAEL RODAK, JR,,

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

No. 76-8834

Bitt P. COGDELL,

Petitioner,

v.

THe Fort WorTH NATIONAL BANK, Trustee,

Under the Will of D. M. CoGpELL, Deceased,

Respondent.

OO

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CIVIL APPEALS FOR THE

ELEVENTH SUPREME JUDICIAL DISTRICT OF TEXAS

—— <r re

GLORIA TANNER SVANAS

1813 East Eighth Street

Odessa. Texas 79761

Counsel for Petitioner

December, 1976

a Te ST ee aD

TABLE OF CONTENTS

Page

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Appendix A

Opinion of the Eleventh Judicial

Destrict Court of Civil Appenis ......cccccccescccs A-l

Appendix B

Orders in the Supreme Court of

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Appendix C

Order sustaining Plea of

Privilege — District Court,

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Appendix D

PE PRN sé. cncchccdusanncdncanencéesenes A-10

Appendix E

Request to Clerk to Certify and

Py GE Ss ov bk d60ustnbsendadneeoes A-11

Table of Authorities

Cases: Page

Casey v. Adams, 102 US 66 (1880) .................. 5. 8,9

Cincinnati St. R. Co. v. Snell, 193 US 30,

I a i i i A et

Davis v. Elmira Savings Bank, 161 US 275 (1896).........

First National Bank in St. Louis v. State of

SD CPU UP CUUIDs 6 bcc coecacesecsccescouces 6

Griffin v. Illinois, 351 US 12, 17 n.11 (1956)..............

Langdeau v. Burke Investment Company, 358 SWd

es A SUED 666060 4.06b5-5600068 6 0600b0ccedees

McClellan v. Chipman, 164 US 347 (1896) ...............

Michigan National Bank v. Robertson,

FE EE cecckucdatecedebeacconseapessenscs

National Bank v. Commonwealth, 9 Wall. 353,

RIPE eed IPR poten oe nn eo

Nationa! Bank of North America v. Association

of Obstetrics and Female Surgery, Inc.,

— am TD G, Ge Oe Sin OS BR, CRED wn cccccccseccs

Reaves v. Bank of America, 352 F. Supp. 745

SR PE dhe earokencneccacaccdbesesage peeseses

Renwar Oil Corporation v. Lancaster, 276 SW2d

OO ere Tere eT Pee rT er

7-Up Bottling Co. of Austin, Inc., v. The

Capital National Bank, 505 SW2d 624 (AUs.

Se CE, hind cg cadueuweenseneneseseses

Stanley v. Illinois, 405 US 645 (1972) ........... 0.000 eee

Vann v. First National Bank in Little Rock,

324 So.26 94 D.CX. Fin. App. (9976)... ccccccsccceces

See , Ga re GI EF COE Fis ocd cccccccccccnessane

Williams v. Illinois, 399 US 235 (1970)...............24-.

Table of Authorities-(continued)

Page

United States Constitution:

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PT I bb dcp. teeucoacsesessecceevers 8

Statutes:

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In The

Supreme Court of the United States

OCTOBER TERM, 1976

No.

Bit. P. COGDELL.

Petitioner,

We

THE Fort WorTH NATIONAL BANK, Trustee,

Under the Will of D. M. CoGpett, Deceased,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To The Court of Civil Appeals

For the Eleventh Supreme Judicial District of Texas

a

OPINIONS BELOW

The Opinion of the Court of Civil Appeals for the Eleventh

Supreme Judicial District of Texas is reported at 536 SW2d 257.

The Motion for Rehearing was denied on May 6, 1976. On

2

September 29, 1976, the Supreme Court of Texas dismissed

Petitioner's Application for Writ of Error for Want of

Jurisdiction, and Petitioner's Motion for Rehearing was

overruled on October 27, 1976. There is no written Opinion by the

Supreme Court of Texas.

JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C.

§ /257(3).

QUESTION PRESENTED

Whether a National Bank’s sale of real property of a Trust to

the Co-Executors prohibited by Texas Statutes constitutes a

waiver of the venue privilege of /2 U.S.C. §94?

STATUTES INVOLVED

12 U.S.C. § 94

12 U.S.C. §94. Venue of suits

Actions and proceedings against any association under

this chapter may be had in any district or Territorial court of

the United States held within the district in which such

association may be established, or in any State, county, or

municipal court in the county or city in which said

association 1s located having jurisdiction in similar cases.

Title 12 U.S.C.A. Banks & Banking §§ | to 530, Page 442.

TEXAS PROBATE CODE

§352. Representative Not to Purchase Property of the Estate

The personal representative of an estate shall not become

3

the purchaser, directly or indirectly, of any property of the

estate sold by him, or by any corepresentative if one be

acting. If any such purchase is made, any person interested in

the estate may file a written complaint with the court in

which the proceedings are pending, and upon service of

citation upon the representative, after hearing and proof,

such sale shall be by the court declared void, and shall be set

aside by the court and the property ordered to be reconveyed

to the estate. All costs of the sale, protest, and suit, if found

necessary, shall be adjudged against the representative.

Vol. 17B V.A.T.S. Probate Code, Page 214

STATEMENT OF THE CASE

Petitioner, Bill P. Cogdell (whose name has been legally

changed from Marion P. Cogdell) filed suit in the 132nd Judicial

District Court of Scurry County, Texas, (Tr. 1-8) for Declaratory

Judgment to have declared void ab initio all leases, sales of all

properties, real and personal, of the Estate of D. M. Cogdell,

Deceased, to the Independent Co-Executors of the Estate of D.

M. Cogdell, Deceased, prohibited by §352 of the Texas Probate

Code. The Fort Worth National Bank, Trustee, Co-Defendant,

filed its Plea of Privilege claiming /2 U.S.C. $94 (Tr. 9) which was

controverted by Petitioner (Tr. 13-16) claiming ten statutory

exceptions established venue in Scurry County, Texas. Summary

Judgment susiaining the Bank’s Plea of Privilege was rendered on

October 20, 1975. (Tr. 34-35)

In November, 1974, The Fort Worth National Bank, Trustee

under the Last Will and Testament of D. M. Cogdell, Deceased,

executed special Warranty Deeds (Tr. 6) conveying undivided

interests in real property in Scurry County, Texas, from the trust

4

for the benefit of Marion P. Cogdell to the Independent Co-

Executors of the Estate of D. M. Cogdell, Co-Defendants in the

District Court.

The Eleventh Court of Civil Appeals erroneously held that

since the Bank had already parted with title to the land that it was

not a suit for recovery of land although the Deeds were void as a

matter of law under §352 of the Texas Probate Code. The Court

of Civil Appeals affirmed the Summary Judgment sustaining the

Plea of Privilege of The Fort Worth National Banx, Trustee. (Tr

46-47) |-A After Motion for Rehearing was denied on May 6,

1976, Petitioner timely filed his App.ication for Writ of Error in

the Supreme Court of Texas posing the question whether a

National Bank can violate substantive laws of Texas and claim

the protection of a Federal law granting preferential venue to

National Banks. The Application for Writ of Error was dismissed

tor Want of Jurisdiction on September 29, 1976, and the Motion

for Rehearing of the Application for Writ of Error was overruled

on October 27, 1976. Petitioner has taken every requisite step

under the Texas Rules of Civil Procedure to preserve the error of

the Bank’s Waiver of its venue privilege by the Bank’s execution

and delivery of the void Deeds.

REASONS FOR GRANTING THE WRIT

This case presents a clear example of Waiver by a National

Bank in a local action. The Fort Worth National Bank, Trustee,

by accepting appointment as Testamentary Trustee (Tr. 40-41)

and dealing in its fiduciary capacity with assets of the Trust in the

Estate of D. M. Cogdell, Deceased, in violation of §352 of the

Texas Probate Code waived venue privilege of /2 U.S.C. §94, in

an action filed in the County in which it conveyed undivided

interests in real estate held as assets of a Trust to the Co-

5

Executors of the same Estate creating the Trust. (Michigan

National Bank v. Robertson, 372 US 591, 594 (1963). It is

fundamental that a National Bank cannot violate the Statutes of

Texas with impunity from venue outside the County of its

principal place of business. The action against the Bank to declare

its Deeds void as a matter of law constituted an action to recover

real property which is a loca! action within the exception to /2

U.S.C. §94 carved out by Casey v. Adams, [102 US 66 (1880)]}

It is uncontroverted that the Trustee-Bank as Grantor

participated in the sales specified in the Petition for Declaratory

Judgment. (Tr. 6) The Deed conveyed undivided interests of the

Trusts in land in Scurry County, Texas, where jurisdiction is

sought to be maintained against the Bank.

“It is well established that the venue provisions of 12 U.C.S.

94 were enacted for the “convenience” of the banks and may

be waived by the bank's conduct in a county where

jurisdiction is sought to be maintained, whether such

conduct occurred before or after the filing of the suit. Reaves

v. Bank of America, 352 F.Supp. 745 (S.D. Cal. 1973).

Following the sales by the Trustee-Bank in November, 1974, the

Trustee-Bank continued to use the Scurry County Court in

Probate No. 2422: In re: Estate of D. M. Cogdell, Deceased, and

continued to use the District Court of Scurry County, Texas, to

enforce its claims as Testamentary Trustee under the Estate of D.

Cogdell, Deceased, in Cause No. 9730 styled The Fort Worth

National Bank, Trustee under the Will of D. M. Cogdell,

Deceased, for the benefit of Marion P. Cogdell and for the benefit

of Charlotte Cogdell Etgen, Plaintiffs, v. Jonisue Cogdell Stiff,

David Martin Cogdell, Jr., and William Munsey Cogdell,

Individually and as Independent Executors of the Estate of D. M.

Cogdell, Marion P. Cogdell and Charlotte Cogdell Etgen,

6

Defendants. Indubitably, the Trustee-Bank knew the Grantees in

the Warranty Deed were one and the same individuals as the

Independent Co-Executors under the Last Will and Testament of

D. M. Cogdell, Deceased, which also created the Testamentary

Trust under which the Trustee-Bank claimed. In fact, the Trustee-

Bank executed the special Warranty Deed to the individuals as

Independent Co-Executors as part of the settlement in Cause No.

9730 in which David Martin Cogdell, Jr., and William Munsey

Cogdell as Independent Co-Executors of the Estate of D. M.

Cogdell, Deceased, had filed a Cross-Action against The Fort

Worth National Bank, Individually and The Fort Worth

National Bank, Trustee. The Trustee-Bank ratified the

transaction by accepting the proceeds for the sales and crediting

the proceeds to the Trusts. National Bank of North America v.

Associates of Obstetrics and Female Surgery, Inc., US

48 L Ed 2nd 92, 92 S.Ct. ____(1976).

It is obvious that the enforcement against the Trustee-Bank of

the proscription of §352 of the Texas Probate Code will not

interfere with the purpose of the National Bank, Respondent

herein, nor will it tend to impair or destroy its efficiency as a

Federal agency nor will it conflict with the paramount law of the

United States. First National Bank in St. Louis v. State of

Missouri, 263 US 640, 656 (1923); National Bank v.

Commonwealth, 9 Wall. 353, 362[19 L Ed 701]; Davis v. Elmira

Savings Bank, 161 US 275, 283; McClelian v. Chipman, 164 US

347, 357; Waite v. Dowley, 94 US $27, 533.

“Whena bank. . . commits tortious acts, by and through its

agent, such as is alleged in this case, we hold that it has

waived its privilege to the extent of being sued on the local

transaction or activity involving the alleged tortious acts.”

Vann v. First National Bank in Little Rock, 324 So 2d 94, 95

D.Ct. Fla. App. (1976).

7

As a matter of law, a Judgment that the sales by The Fort

Worth National Bank, Trustee, are void restores the title to the

Trustee-Bank subject to the terms of the Testamentary Trust

under the Last Will and Testament of D. M. Cogdell, Deceased,

for the benefit of Marion P. Cogdell (Petitioner herein), and for

the benefit of Charloite Cogdell Etgen. Nevertheless, this is not a

suit for construction of a Trust, and the Court of Civil Appeals’

citations are inapposite. The conveyances by the Trustee-Bank

consisted of undivided interests in real property in the Cogdell

Center in Scurry County, Texas, held by the Trustee-Bank as

Trust assets for the benefit of Petitioner under the Last Will and

Testament of D. M. Cogdell, Deceased. It is the sales of these

undivided interests in real properties that Petitioner seeks to

cancel, rescind and have declared void ab initio. Texas Probate

Code §352. The real property sold to Billy Cogdell and D. M.

Cogdeli, Jr., Grantees, was property located in Scurry County,

Texas, and sold by the Trustee-Bank as Co-Representative to the

Independent Co-Executors. William Munsey Cogdell (also

known as Billy Cogdell) and David Martin Cogdell, Jr. (also

known as D. M. Cogdell, Jr.) Co-Defendants in the District

Court, who are the purchasers directly of the property of the

Estate of D. M. Cogdell, Deceased, sold by the Trustee-Bank

prohibited by §352 of the Texas Probate Code. The proscription

of the statute is clear and unamb:guous and does not provide for

any exceptions from its terms. 7-Up Bottling Co. of Austin, Inc. v.

The Capital National Bank, 505 SW2d 624 (Austin Civil Appeals

1974, writ refused, no reversible error). The dual relationship of

the purchasers and the dual relationship of the Seller in its

fiduciary capacity under the Estate of D. M. Cogdell, Deceased,

are controlling. The sole question is whether The Fort Worth

8

National Bank, Trustee, could sell real property acquired out of

the Estate of D. M. Cogdell, Deceased, to the Co-Executors of the

Estate of D. M. Cogdell, Deceased, in their capacity as

individuals against the prohibition of Texas Probate Code§352.

The rule is that if the suit is founded upon any equitable title or

right and requiring for its effectuation the removal of a legal

impediment to Plaintiff's land, it is governed by Article 1995(/4)

Vernon's Annotated Texas Statutes as an exception to the venue

statute and must be brought in the County where the land is

situated. Landeau v. Investment Company, 358 SW2d 553 (Texas

Supreme Court 1962); Renwar Oil Corporation v. Lancaster, 276

SW2d 774 (Texas Supreme Court 1955). On the basis of these

authorities, it is perfectly clear that a suit by a cestui que trust to

set aside and cancel deeds conveying his interest in the title to land

in violation of Probate Code §352 is properly regarded as a suit to

remove an encumbrance or cloud upon the title to land and is

within the mandatory exception to the venue statute and must be

brought in the County where the land is situated, that is, Scurry

County, Texas.

It is well settled that /2 U.S.C. §94 is not applicable to local in

rem actions.

“Local actions are in the nature of suits in rem, and are to be

prosecuted where the same on which they are founded is

situated.” Casey v. Adams, 102 US 66, 68 (1880).

The discriminatory application of /2 U.S.C. §94 by the

Eleventh Judicial District Court of Civil Appeals granting

preferential venue to The Fort Worth National Bank, Trust-e, isa

denial of equal protection to Petitioner guaranteed by the

Fourteenth Amendment to the United States Constitution and

the equal protection principle embodied in the due process clause

9

of the Fifth Amendment to the United States Constitution. The

decision by the Eastland Court of Civil Appeals holding that the

Trustee-Bank had parted with title deprived Petitioner of his

recourse statutorily specified by Texas Probate Code §352.

“

. . any person interested in the Estate may file a written

complaint with the Court in which the proceedings are

pending,.. .”.

Every citizen of Texas is subject to the exceptions (Article 1995

Vernon's Annotated Texas Statutes) to the statutory right to be

sued in the County of his domicile—except National Banks in

some Courts in Texas. It cannot be said that in all tribunals of

Texas equal laws prevail. Cincinnati St. R. Co. v. Snell, 193 US

30, 37 (1904). The preferential venue privileges accorded Nationa!

Banks by some Texas Courts undeniably over-burden the already

congested dockets of metropolitan Courts. Furthermore, the

National Bank as a co-conspirator and indispensable party co-

defendant can effectively deprive the Court in which it is sued of

jurisdiction over its joint tort-feasors or conspirators by claiming

its preferential venue privilege as a National Bank. Casey v.

Adams, 102 US 66 (1880). /2 U.SC. §94 as applied in Texas is

grossly discriminatory in granting preferential venue to National

Banks against the substantive real property rights of other

citizens of Texas[ Williams v. Illinois, 399 US 235 (1970); Griffin

v. Illinois, 351 US 12, 17 n. 11 (1956)] and exceeds limits of

constitutional due process clause of the Fifth Amendment

offending traditional! notions of fair play and substantial justice.

“this court has not. . . embraced the general proposition

that a wrong may done if it can be undone.” Stanley v. Illinois,

405 US 645, 647 (1972).

10

CONCLUSION

It is respectfully submitted that the Petition for Writ of

Certiorari should issue and that this Court should vacate the j

Orders of the Court of Civil Appeals for the Eleventh Supreme

Judicial District of Texas and remand the case to the District )

Court of Scurry County, Texas, for trial on the merits.

YO

GLORIA TANNER SVANAS

1813 East Eighth Street

Odessa, Texas 79761

Telephone: (915) 337-1568

Counsel For Petitioner

CERTIFICATE OF SERVICE

1, GLORIA TANNER SVANAS, a member of the Bar of the

Supreme Court of the United States and the Attorney for BILL P.

COGDELL, Appellant herein, hereby certify that on the Ss

day of December 1976, | have mailed two (2) copies of the

foregoing Petition for Writ of Certiorari to the Court of Civil

Appeals for the Eleventh Supreme Judicial District of Texas to

opposing Counsel at the following address:

Mr. Robert M. Randolph

Law, Snakard, Brown and Gambill

2600 Fort Worth National Bank Building

Fort Worth, Texas, 76102; and

Mr. Marvin Champlin

Law, Snakard, Brown and Gambill

2600 Fort Worth National Bank Building

Fort Worth, Texas, 76102

Attorneys for The Fort Worth National Bank, Trustee.

I certify that all parties required to be served, have been served.

Bite SB WED

Gloria T. Svanas

= oe nets ee

eee

ee ee ee

A-l

Bill P. Cogdell

Appellant

v.

The Fort Worth National Bank

Appellee

No. 4868—Appeal from Scurry County

Bill P. Cogdell filed suit against the Fort Worth National Bank,

Trustee, and others for a declaratory judgment. The Bank’s

motion for summary judgment sustaining its plea of privilege was

granted and Cogdell has appealed. We affirm.

The Bank’s plea was controverted by citing ten exceptions

under Article 1995, Texas Revised Civil Statutes.

The federal statute (12 USCA §94) on venue against nationa!

banking association is as follows:

§94. Venue of suits

Actions and proceedings against any association under

this chapter may be had in any district or Territorial court of

the United States held within the district in which such

association may be established, or in any State, county, or

municipal court in the county or city in which said

association is located having jurisdiction in similar cases

In Mercantile National Bank v. Langdeau, 371 U.S. 555, 83

S.Ct. 520 L.Ed.2d 523 (1963), the court said:

“The phrase ‘suits . . . may be had’ was, in every respect,

appropriate language for the purpose of specifying the

precise courts in which Congress consented to have national

A-2

banks subject to suit and we believe Congress intended that

in those courts alone could a national bank be sued against

its will.

We would not lightly conclude that a congressional

enactment has no purpose or function. We must strive to give

appropriate meaning to each of the provisions of Title 12 and

its predecessors. See United States v. Menasche, 348 US 528,

539, 99 Led 615, 624, 75 S Ct 513; Montclair Twp. v.

Ramsdell, 107 US 147, 152, 27 L ed 431, 432,2 S Ct 391.

Appellee, however, would have us hold that any state court

could entertain a suit against a national bank as long as state

jurisdictional and venue requirements were otherwise

satisfied. Such a ruling, of course, would render altogether

meaningless a congressional enactment permitting suits to be

brought in the bank’s home county. This we are unwilling to

do, particularly in light of the history of §57.. .”

A-3

Independent Co-Executors and/ or Trustee of the Estate of

D. M. Cogdell, Deceased; . . .”

In Shellberg v. Shellberg, 428 S.W.2d 117 (Tex.Civ.App. Fort

Worth 1968, writ dism'd), the court said:

“In Miller v. Howell, 234 S.W.2d 925 (Tex.Civ.App. 1950,

no writ hist.), this court held: ‘Plaintiffs say that their suit is

one to recover land, and to partition land, and to foreclose a

lien on land, a part of which land lies in Wood County. Their

pleadings may contain conclusions to such effect, if the

conclusions are read without regard to the remaining

allegations in the pleadings, but when the pleadings are

examined in their entirety, and when it is endeavored to find

out what principal right or rights are asserted and what relief

is sought, it is seen thai the suit falls within a well-defined

category. It is, by all standards, an equitable proceedings for

a partnership accounting. It is a transitory action, rather

Appellant contends the mandatory provision of Subdivision 14 than a local one, it is primarily a proceedings in personam,

of Article 1995, V.A.C.S. controls venue. “The pleadings rather than a proceeding in rem.

concerning land in Scurry County are as follows: In the instant case when the pleadings are examined in their

“On November 12, 1974, The Fort Worth National Bank,

Trustee, sold to Billy Cogdell and D. M. Cogdell, Jr., the real

property interests held by The Fort Worth National Bank,

Trustee, in the Cogdell Center properties in Scurry County,

Texas, for a total consideration in excess of $10,000.00

Plaintiff alleges that the sale of an interest of real property

held by Trustee as distributions from an Estate directly to the

individuals serving as Execvitors of that Estate is proscribed

by Section 352 of the Tex.s Probate Code.”

Appellant’s prayer for relief in part is as follows:

“WHEREFORE, Plaintiff prays that citation be issued to

each of the Defendants named herein requiring them to

answer and appear herein; and upon jury trial hereon that

Plaintiff have judgment cancelling, rescinding, declaring

void ab initio all leases, sales of all properties, real and

personal, of the Estate of D. M. Cogdeil, Deceased, to the

entirety and when it is endeavored to find out what principal

right or rights ere asserted and what relief is sought, we must

conclude the trial court was correct in finding the suit was

brought primarily to construe the written Trust Agreement,

determine the rights and duties of the various trustees and

beneficiaries, and to require an accounting from defendant

as to his actions as a trustee.

The evidence, too, supports his findings.

The suit is primarily a proceeding in personam and not a

proceeding in rem. Defendant was not entitled, therefore, to

have the suit transferred to Moore County under the

provisions of Sub. 14.

Venue was retained in Tarrant County under the provisions

of Art. 7425b-24, Sections A and B, V.A.C.S.”

Article 7525b-24(a) and (b) of Texas Trust Act provides:

“A. The district court shall have original jurisdiction to

A4

construe the provisions of any trust instrument; to determine

the law applicable thereto; the powers, responsibilities,

duties, and liability of trustee; the existence or non-existence

of facts affecting the administration of the trust estate; to

require accounting by trustee; and to surcharge trustee.

B. In cases where there be a single trustee, the venue of such

actions shall be in the county of the residence of such trustee;

or if a corporation, in the county of its principal place of

business. Where there are two or more trustees, then the

venue shall be in the county where the principal office of the

trust is maintained.”

Article 1995, Subdivision 30, provides:

“30. Special venue—Whenever in any law authorizing or

regulating any particular character of action, the venue is

expressly prescribed, the suit shall be commenced in the

county to which jurisdiction may be so expressly given.

We hold the record conclusively establishes the primary,

dominant and ultimate purpose of this declaratory judgment suit

is not to recover lands or remove encumbrances therefrom.

Assuming this was a suit for the recovery of land, the above

quoted portions of appellant’s petition show the Bank parted with

title before the commencement of this suit and under the holding

in James v. Drye, 320 S.W.2d 319 (Tex. 1959) Subdivision 14

would not apply.

In James v. Drye, supra, the court said:

“This writ of error was granted because the holding of the

Court of Civil Appeals that the suit was a suit for ‘the

recovery of lands’ or ‘damages to land’ under Section 14, of

Article 1995, Revised Civil Statutes, Vernon’s Ann.Civ.St.

art 1995, § 14, is in conflict with the holding of the Courts cf

Civil Appeals in the following cases: Smith v. Rampy,

Tex.Civ.App. Amarillo, 1946, 198 S.W.2d 592; Morris Plan

Bank of Fort Worth v. Ogden, Tex.Civ.App. Ft. Worth,

1940, 144 S.W.2d 998, and other similar cases. We approve

A-5

the holding of the earlier cases that suits against former

owners of land who have parted with all title prior to the

filing of suit are not suits for ‘the recovery of lands’, or

‘damages to land’ within the meaning of Section 14, Article

1995, Revised Civil Statutes, 1925. . .”

We hold the summary judgment proof establishes as a matter

of law there is no genuine issue of fact and the Bank is entitled to

be sued in the county of its domicile as a matter of law under

Article 7425 b-24 (a) and (b) and Subdivision 39 of Article 1995,

T.R.C.S. and 12 USCA § 94.

We have considered all of Appellant's points and find no merit

in them. They are overruled.

The judgment is affirmed.

ESCO WALTER

Associate Justice

April 15, 1976

A

IN THE SUPREME COURT OF TEXAS

September 29, 1976

No. B-6084

BILL P. COGDELL

VS.

THE FORT WORTH NATIONAL BANK

From Scurry County, Eleventh District.

Application of petitioner for writ of error to the Court of Civil

Appeals for the Supreme Judicial District having been duly

considered, it is ordered that the application be, and hereby 1s,

dismissed for want of jurisdiction.

It is further ordered that applicant, Bill P. Cogdell, and surety,

Merchants Mutual Bonding Company, pay all costs incurred on

this application.

eeee0

October 27, 1976

No. B-6084

BILL P. COGDELL

VS.

THE FORT WORTH NATIONAL BANK

From Scurry County, Eleventh District.

Petitioner's motion for rehearing of application for writ of

error having been duly considered, it is ordered that said motion

be, and hereby is, overruled. |

I, GARSON R. JACKSON, Cleark of the Supreme Court of

lexas, do hereby certify that the above and foregoing is a true and

correct copy of the order of the Supreme Court of Texas in the

A-7

case numbered and styled as above, as the same appears of record

in the minutes of said Court under the dates shown.

WITNESS my hand the the seal of the Supreme Court of

Texas, at the City of Austin, this, the Fifth day of November,

1976.

s/ Garson R. Jackson

GARSON R. JACKSON, Clerk

By , Deputy.

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NO. 11429

BILL P. COGDELL

A

DAVID MARTIN COGDELL, JR., ET AL

IN THE DISTRICT COURT OF SCURRY COUNTY, TEXAS

132nd JUDICIAL DISTRICT

ORDER SUSTAINING PLEA OF PRIVILEGE

On the 9th day of October, 1975, came on to be heard the

Motion for Summary Judgment of Defendant The Fort Worth

National Bank, Trustee under the Will of D. M. Cogdell,

Deceased, on its Plea of Privilege to the Petition of Plaintiff Bill

P. Cogdell, and came the Plaintiff and said Defendant by their

attorneys of record and announced ready; and the Court having

read the pleadings and Affidavit on file and having heard the

argument of counsel and considered all matters properly before

the Court is of the opinion and finds that said Plea of Privilege

should be sustained.

ltis therefore ORDERED, ADJUDGEDand DECREED that

the Plea of Privilege of Defendant The Fort Worth National

Bank, Trustee under the Will of D. M. Cogdell, Deceased, be

sustained and that the cause of action alleged against said

Defendant by Plaintiff in the suit styled and numbered

hereinabove be transferred to the District Court of Tarrant

County, Texas. the county of said Defendant's residence, office

and place of business. It is further ORDERED, ADJUDGED

and DECREED that the Clerk of this Court transmit to the Clerk

of the District Court of Tarrant County, Texas, certified copies of

the following instruments:

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Petition for Declaratory Judgment.

Citation and Officer's Return of Citation served on

Defendant The Fort Worth National Bank.

Plea of Privilege of The Fort Worth National Bank, Trustee

under the Will of D. M. Cogdell, Deceased.

Controverting Plea to Plea of Privilege of The Fort Worth

National Bank, Trustee.

Defendant's Motion for Summary Judgment on Plea of

Privilege.

Affidavit of Bruce Petty in support of Motion for Summary

Judgment or Plea of Privilege of The Fort Worth National

Bank and Exhibit thereto.

Fiat setting hearing on Defendant's said Motion for

Summary Judgment.

This Order granting Defendant’s Motion for Summary

Judgment on its Plea of Privilege.

It is further ORDERED, ADJUDGED and DECREED that all

costs incurred in this Court in connection with his suit against

said Defendant be taxed against Plaintiff Bill P. Cogdell.

To which order Plaintiff Bill P. Cogdell then and there objected

and excepted in open court and gave notice of appeal to the Court

of Civil Appeals for the Eleventh Supreme Judicial District of

Texas at Eastland, Texas.

RENDERED AND SIGNED the 20th day of October, 1975.

Judge Presiding

S,

Wayland G. Holt

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NO. B-6084

iN THE SUPREME COURT OF TEXAS

BILL P. COGDELL,

Petitioner,

V

1 HE FORT WORTH NATIONAL BANK, TRUSTEE,

Respondent

AMENDED NOTICE OF APPLICATION

FOR WRIT OF CERTIORARI

NOTICE is hereby given that BILL P. COGDELL, Petitioner

above named, hereby gives Notice of his Application for Writ of

Certiorari to the Supreme Court of the United States from this

Court's overruling of the Motion for Rehearing entered in this

action on the 27th day of October, 1976, of the Dismissal of the

Application for Writ of Error entered September 29, 1976, in

Cause No. 4868 in the Court of Civil Appeals for the Eleventh

Supreme Judicial District of Texas at Eastland entered April 15,

1976, affirming the Order sustaining Plea of Privilege rendered

October 20, 1975, in Cause No. 11,429 in the District Court of

Scurry County, Texas, 132nd Judicial District.

This Application for Writ of Certiorari is taken pursuant to 28

USC §1257 (3).

DATED November 15, 1976

Respectfully submitted,

GLORIA T. SVANAS

1813 East Eighth Street

Odessa, Texas 79761

Telephone: (915) 337-1568

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CERTIFICATE OF SERVICE

THIS IS TO CERTIFY THAT a true and correct copy of the

foregoing Amended Application for Writ of Certiorari has this

14th day of November, 1976, been placed in the United States

Mail, postage prepaid addressed to the following:

Mr. Robert M. Randolph and

Mr. Marvin Champlin

Law, Snakard, Brown and Gambill

2600 Fort Worth National Bank Building

Fort Worth, Texas, 7610?

Certified Mail No. 696597

Return Receipt Requested

Attorneys for The Fort Worth National Bank, Trustee

Mrs. Oleta Moseley, Clerk

Court of Civil Appeals

Eleventh Supreme Judicial District

Eastland, Texas, 76448

Certified Mail No. 277857

Return Receipt Requested; and

Mrs. Bonnie Brooks

District Court Clerk

Scurry County Courthouse

Snyder, Texas, 79549

Certified Mail No. 277858

Return Receipt Requested

GLORIA T. SVANAS

IN THE COURT OF CIVIL APPEALS

FOR THE ELEVENTH SUPREME JUDICIAL DISTRICT

OF TEXAS

EASTLAND, TEXAS

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NO. 4868

BILL P. COGDELL,

Appellant,

v.

THE FORT WORTH NATIONAL BANK, TRUSTEE,

Appellee

Request To Clerk To Certify And Transmit Entire Record

TO: (Mrs.) OLETA MOSELEY

Clerk of the Court of Civil Appeals

for the Eleventh Supreme Judicial District

of Texas, Eastland, Texas

Pursuant to the provisions of Rule 12(1) of the Rules of the

Supreme Court of the United States, you are requested to certify

and transmit to the Supreme Court of the United States the entire

record of the proceedings herein.

GLORIA T. SVANAS

1813 East Eighth Street

Odessa, Texas 79761

Attorney For The Petitioner,

Bill P. Cogdell, Appellant

CERTIFICATE OF SERVICE

THIS IS TO CERTIFY THAT a true and correct copy of the

foregoing Request to Clerk to Certify and Transmit entire Record

has this 22nd day of November, 1976, been placed in the United

States Mail, postage prepaid, addressed to the following:

Mr. Robert M. Randolph and

Mr. Marvin Champlin

Law, Snakard, Brown and Gambill

2600 Fort Worth National Bank Building

Fort Worth, Texas, 76102

GLORIA T. SAVAS