American Fruit Growers v. Sutherland
| Decision Date | 04 May 1932 |
| Docket Number | No. 8833.,8833. |
| Citation | 50 S.W.2d 898 |
| Parties | AMERICAN FRUIT GROWERS, Inc., et al. v. SUTHERLAND. |
| Court | Texas Court of Appeals |
Appeal from Willacy County Court; R. S. Dorsett, Judge.
Suit by G. H. Sutherland against the American Fruit Growers, Inc., and others. From the judgment denying defendants' pleas of privilege, defendants appeal.
Reversed and remanded.
Seabury, George & Taylor, of Brownsville, Cunningham & Rabel, of Harlingen, and Harry S. Dunmire, of Pittsburgh, Pa., for appellants.
A. B. Crane and J. G. Foster, both of Raymondville, for appellee.
In this county court case appellants each seasonably filed his plea of privilege to be sued in the county of his domicile. Each plea contained every requisite prescribed by the statute to render it "sufficient" in law as a plea of privilege. Article 2007, R. S. 1925.
To these pleas appellee interposed general and special demurrers, as well as a controverting affidavit. The trial court considered only the general demurrer, which it sustained, and thereupon, without further ado, denied appellants' asserted privilege.
The proceeding was clearly erroneous.
It is provided by statute that a plea of privilege "shall be sufficient if it be in writing and sworn to, and shall state that the party claiming such privilege was not, at the institution of such suit, nor at the time of the service of process thereon, nor at the time of filing such plea, a resident of the county in which such suit was instituted and shall state the county of his residence at the time of such plea, and that `no exception to exclusive venue in the county of one's residence provided by law exists in said cause'; and such plea of privilege when filed shall be prima facie proof of the defendant's right to change of venue." Article 2007, R. S. 1925.
The plea filed by appellants in this case strictly and fully complied with those requirements of the statute.
It is further provided, in article 2007, that: "If the plaintiff desires to controvert the plea of privilege, he shall within five days after appearance day file a controverting plea under oath, setting out specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending;" that (article 2008), "upon the filing of such controverting plea, the judge or justice of the peace shall note on same a time for a hearing on the plea of privilege," and that after ten days' notice to defendant "the court shall promptly hear such plea of privilege and enter judgment thereon."
Appellee filed both a general and special demurrer to appellants' plea of privilege, as well as a controverting affidavit thereto. The court passed only upon the general demurrer, which was sustained, and it was thereupon decreed, "without hearing any evidence," that the plea was "insufficient," and therefore was "in all things denied and refused."
Appellants raise the question of failure of proper notice to them of the hearing of their plea. It is probable that appellants waived such notice, but that question is deemed immaterial in this inquiry.
The plea of privilege, being in the form and of the substance prescribed by statute, established a prima facie case for change of venue, and, until a proper controverting affidavit was timely filed, the trial judge had no power to enter any order except one sustaining the plea.
This interposition of the controverting affidavit had no greater effect than to put in issue the facts asserted in the plea of privilege, which must still prevail until overcome by evidence adduced upon a hearing of those issues, the burden of pleading and proof resting upon the plaintiff throughout the proceeding. The facts alleged in appellee's petition, nor those in his controverting affidavit, could be taken as true as against the plea of privilege. Those facts must be affirmatively established by evidence before the court may consider them in determining the plea of privilege. World Co. v. Dow, 116 Tex. 146, 287 S. W. 241; Oakland Motor Car Co. v. Jones (Tex. Civ. App.) 29 S.W.(2d) 861, 865; First Nat. Bank v. Cage (Tex. Civ. App.) 32 S.W. (2d) 500.
The plea of privilege, being in strict conformity to the requirements of the statute, was impervious to demurrers. It is only when it lacks one or more of the essential elements prescribed by the statute, or sets up extraneous facts which affirmatively sustain the venue of the forum, that a plea of privilege may be reached by demurrer.
The judgment is reversed, and the cause remanded for further proceedings in consonance with this opinion.
On Motion for Rehearing.
Appellee has filed motions for rehearing and to certify. Both motions will be overruled.
In addition to the authorities cited in the original opinion in support of the holdings therein announced, we deem it proper to cite the opinion of this court on appellee's motion for rehearing in Commercial Standard Insurance Company v. W. L. Lowrie, 49 S.W. (2d) 933, 936, together with the authorities therein cited, and particularly the opinions of Judges Looney and Vaughan, respectively, of the Dallas Court of Civil Appeals, in Meadows & Co. v. Turner, 270 S. W. 899, and Waxahachie Nat. Bank v. Rothschild Co., 235 S. W. 633, which fully sustain the holdings of this court herein. If there is a conflict between the decision of this court in this case and that of the Dallas court in Barnum v. Lancaster Hdw. Co., 40 S.W.(2d) 1103, as contended by appellee, it is no more pronounced than the conflict between the opinion by Chief Justice Jones in the latter case and the opinions of his associates in the two cases first mentioned. Appellee, and some of the courts, cite the original opinion in the case of Humble Pipe Line Co. v. Kincaid, 19 S.W.(2d) 144, decided by this court, as being in conflict with the decision in this case. The question of venue in that case went off on the decision of this court that the plea of privilege was heard and properly determined on its merits, after notice, and the reference therein to the question here raised was pure obiter, which, along with the opinion embracing it, was later superseded by the majority opinion on rehearing. That case is therefore no authority on the question presented here, nor does it offer any conflict of decision.
This court will not willingly subscribe to the holding urged by appellee herein which would have the effect of nullifying the amendment of 1917 to article 2007, prescribing the requisites of a plea of privilege which "shall be sufficient" as "prima facie proof of the defendant's right to change of venue." The statute prescribes the procedure to be pursued after the filing of such "sufficient" plea. It does not prescribe any contingency or event which requires the plaintiff to enlarge upon the allegations of his original plea. It does not provide that, where the plaintiff's pleadings set out specific facts showing venue in the county selected, the defendant's plea of privilege shall specifically deny such facts, and affirmatively avoid their effect. Nor does the statute provide that, when the plaintiff files a controverting affidavit setting out such specific facts of venue, the defendant must enlarge upon his formal plea of privilege and specifically deny or avoid such facts. The statute simply, but arbitrarily, provides that, when the defendant timely files his plea of privilege in the prescribed form, it shall be sufficient to make a prima facie case for change of venue, and that, "upon the filing of such [plaintiff's] controverting plea, the judge or justice of the peace shall," after the prescribed notice, "promptly hear such plea of privilege and enter judgment thereon." It is absurd to say, in the face of the plain and mandatory provisions of the statute, that in cases, such as this, of suits for damages for fraud and breach of contract committed in a particular county, the defendant's plea of privilege is subject to the general demurrer unless...
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