Benson v. Jones

Decision Date25 June 1927
Docket Number(No. 802-4831.)
Citation296 S.W. 865
PartiesBENSON v. JONES, Chief Justice, et al.<SMALL><SUP>*</SUP></SMALL>
CourtTexas Supreme Court

Holland & Moore, of Dallas, for appellant.

POWELL, P. J.

Upon proper application therefor, the Supreme Court granted relator the right to file a petition for mandamus. The nature of the petition is made manifest by a quotation therefrom, as follows:

"Relator is appellee in cause No. 9988, styled Mayo W. Neyland, Jr., et al. v. Mrs. J. W. (Lillie) Benson, in the aforesaid Court of Civil Appeals, and she was plaintiff in the trial court, which was the district court for the One Hundred and First judicial district of Texas, Dallas county. Her suit was for rescission and cancellation of an instrument of assignment, whereby she had sold and transferred to the defendants in the suit all her interest in and to 231 shares of stock in the First National Bank of Montgomery, Ala. The suit was based upon an alleged fraud, alleged to have been committed in Dallas county, Tex. The defendants, who were served with citation in the suit, duly filed pleas of privilege to be sued in Hunt county, Tex., the place of their residence. Relator duly filed her controverting affidavits to the pleas of privilege, the affidavits setting up the alleged fraud committed in Dallas, Dallas county, Tex., as constituting an exception to the general venue statute and as a ground for venue of the suit in Dallas county.

"The hearing was on the venue question alone, before the court without a jury. The trial court, after hearing the pleas, affidavits, and evidence, overruled the pleas of privilege, sustained the controverting affidavits, and retained the suit in Dallas county for trial on its merits. In due time the defendants perfected an appeal from the judgment of the trial court to the Court of Civil Appeals for the Fifth Supreme Judicial District of Texas at Dallas, which court on the 28th day of January, 1927, reversed the judgment of the trial court and rendered judgment transferring the original suit to the district court of Hunt county for trial on its merits.

"Relator duly filed her motion for rehearing in the Court of Civil Appeals, which motion was overruled on the 26th day of February, 1927. She requested certification of the questions of law, which request was refused on the 12th day of March, 1927.

"Under the law, the judgment of the Court of Civil Appeals on the question of venue is final and no appeal may be had therefrom, nor can the Supreme Court grant a writ of error in such a case. (Art. 1821, Revised Civil Statutes, 1925. See, also, National Compress Co. v. Hamlin 269 S. W. 1024, and Hinn v. Gallagher et al. 268 S. W. 132).

"Relator says that the opinion handed down in her case by the Honorable Court of Civil Appeals is in conflict, as hereinafter shown, with the opinions handed down by other Courts of Civil Appeals of the state, and with the Supreme Court of Texas, and that the questions of law decided in relator's case, adversely to her, are material and important to her interest and rights, and to the jurisprudence of the state.

"Relator says that the following questions of law are the very questions involved and decided in her case, as herein referred to, and, since they were decided adversely to relator's rights and interests as she conceives the case, and since the court's decision of the questions is inconsistent with law and justice, and in conflict with decisions and opinions of the Courts of Civil Appeals of Texas, and the Supreme Court of Texas, she feels certain that she is within her rights and the spirit and letter of the law in asking this honorable court to cause the questions to be certified to it for answer:

"Question No. 1. In relator's case upon the plea of privilege hearing only, was it necessary as a matter of law that she prove her cause of action by showing injury and the extent of such injury?

"Question No. 2. In relator's case upon the plea of privilege hearing only, was there, as a matter of law, any evidence showing injury to relator and the extent of the injury?"

The opinion of the Court of Civil Appeals herein, alleged to be in such conflict with other decisions as to require certification, is reported in 292 S. W. 251. In discussing the essential fact which Mrs. Benson was required, in any event, to establish in order to sue the Neylands outside the county of their residence, that court said:

"To sustain her controverting plea, it was incumbent upon appellee to prove that the statement that her interest in the stock was not worth in excess of $1,500 was false. This she attempted to do when she offered the testimony of the witness Ledbetter as to the value of unincumbered stock of the same issue as that involved, to which there was a clear title, but that is not the kind of stock she sold as the result of the alleged fraud. The stock she parted title with was incumbered by the life estate of another person, and attempted to be further incumbered by a provision of the will, creating the estate in remainder, which had been duly probated. The representation as to the value of the stock must be limited to the value of same at the time...

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15 cases
  • Ford Motor Co. v. Sheldon
    • United States
    • Texas Supreme Court
    • May 11, 2000
    ...were dicta, and conflicts jurisdiction does not arise from statements that were immaterial to the court's holding. See Benson v. Jones, 296 S.W. 865, 867 (Tex. 1927). Thus, Ford cannot show that the differences between this case and Kirkland satisfy the standard for conflicts Because none o......
  • Lufkin Nursing Home, Inc. v. Colonial Invest. Corp.
    • United States
    • Texas Court of Appeals
    • February 19, 1968
    ...510, 240 S.W. 896, 898; Hilliard Bros. v. Wilson, 76 Tex. 180, 13 S.W. 25; Word Company v. Dow, 116 Tex. 146, 287 S.W. 241; Benson v. Jones, 117 Tex. 68, 296 S.W. 865; Greenville Gas & Fuel Co. v. Commercial Finance Co., 117 Tex. 124, 298 S.W. 550: Duffy v. Cole Petroleum Co., 117 Tex. 387,......
  • High Plains Natural Gas Co. v. City of Perryton, 7874
    • United States
    • Texas Court of Appeals
    • September 23, 1968
    ...240 S.W. 896, 898; Hilliard Bros. v. Wilson, 76 Tex. 180, 13 S.W. 25; World Company v. Dow, 116 Tex. 146, 287 S.W. 241; Benson v. Jones, 117 Tex. 68, 296 S.W. 865; Greenville Gas & Fuel Co. v. Commercial Finance Co., 117 Tex. 124, 298 S.W. 550; Duffy v. Cole Petroleum Co., 117 Tex. 387, 5 S......
  • Kasishke v. Ekern
    • United States
    • Texas Court of Appeals
    • November 15, 1954
    ...Co. v. Dow, 116 Tex. 146, 287 S.W. 241; Greenville Gas & Fuel Co. v. Commercial Finance Co., 117 Tex. 124, 298 S.W. 550; Benson v. Jones, 117 Tex. 68, 296 S.W. 865; that defendant is entitled to be sued in the county of his residence, in the absence of any statutory exception; Moore v. Tuck......
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