Bender v. Kowalski
| Decision Date | 09 January 1929 |
| Docket Number | (No. 8112.) |
| Citation | 13 S.W.2d 201 |
| Parties | BENDER v. KOWALSKI. |
| Court | Texas Court of Appeals |
Appeal from District Court, Kleberg County; W. B. Hopkins, Judge.
Action by Gus L. Kowalski against Lloyd Bender. From an order overruling a plea of privilege, defendant appeals. Order reversed, change of venue granted, and cause remanded, with instructions.
McFarland & Young, of San Antonio, for appellant.
E. H. Crenshaw, Jr., of Kingsville, for appellee.
The appeal presents, first, the question of the sufficiency of the averments required in a plea controverting a plea of privilege to be sued in the county of the defendant's residence. The statute (article 2007, R. S. 1925) requires that such controverting plea shall set "out specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending." In this case the general fact relief upon by the plaintiff was that the defendant contracted in writing to perform an obligation in Kleberg county, where the suit was instituted, the defendant being a resident of Bexar county (subdivision 5, art. 1995, R. S. 1925). The only grounds of jurisdiction set out in the controverting plea were "that the contract sued upon by the plaintiff was in writing signed by both plaintiff and defendant and was, by its terms, to be performed in Kleberg County, Texas, and said contract was in fact partly performed in Kleberg County, Texas, by reason of the fact that defendant, as he was obligated by the terms of said written contract to do, deposited with Robert J. Kleberg & Company, at Kingsville, in Kleberg County, Texas, the sum of One Hundred ($100.00) Dollars as earnest of his good faith." No extrinsic fact or document, such as the pleadings in the case, was referred to in the controverting plea for a more complete statement of the facts relied upon to show venue. These questions arise: First, were the facts averred in the controverting plea sufficient within themselves to meet the requirement in the statute that the controverting plea "set out specifically the fact or facts relied upon to confer venue"? And, second, if not, could the court consider the pleadings in the case as supplementing the averments in the controverting plea in order to determine the question of venue, in the absence from the plea of any reference to or adoption of those pleadings as a part of the plea? And, third, if so, did the controverting plea, aided by the averments in the pleadings, show venue in Kleberg county? Because of the disposition to be made of the first two questions, the third need not be decided here.
We are of the opinion that the controverting plea, when considered alone, is not sufficient to affirmatively show venue in Kleberg county. It is expressly provided that the controverting plea set out, "specifically," the facts relied on to show venue. We think the plea here failed to meet that requirement. The first allegation relied upon by appellee is that the contract sued upon "was, by its terms, to be performed in Kleberg County." Obviously this is not an allegation "of specific facts," as contemplated in the exception to the venue statute; it is but a most "general" conclusion of law, from specific facts not disclosed in the plea. It involves the arbitrary construction of a contract, none of the terms (specific facts) of which are disclosed in the plea; whereas, it was the true function of the plea to set out those terms in such detail as to enable the court trying the question of privilege to ascertain the intention of the parties and the purpose and legal effect of the contract, and, upon this construction, to determine the sufficiency of the plea of privilege. The court was not obliged, would not be authorized, to sustain or reject venue solely upon the construction put upon the contract by either party. The contract might be of such nature, and may contain such terms, and be couched in such language, as to render doubtful the true construction of its purposes and effect. In order to perform his office of construing the instrument, the trial judge must have the instrument itself, or a statement of its specific provisions, before him, and the general conclusions of law formed by the litigant are not sufficient to enable the court to perform that office.
The remaining averment in the...
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