Boger v. Leyendecker
| Decision Date | 15 January 1948 |
| Docket Number | No. 4505.,4505. |
| Citation | 209 S.W.2d 210 |
| Parties | BOGER et al. v. LEYENDECKER et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Jefferson County; W. T. McNeill, Judge.
Action to recover debt by John D. Leyendecker and others against A. E. Boger, Moore, Inc., and others. Moore, Inc., filed a plea of privilege to be sued in Jasper County. From a judgment overruling the plea, Moore, Inc., appeals.
Reversed and rendered.
Cooper K. Ragan, of Houston, and O'Fiel & O'Fiel, of Beaumont, for appellant.
Cole, Patterson, Cole & McDaniel, of Houston, and Everett Lord, of Beaumont, for appellees.
This is the appeal of Moore, Inc., from a judgment of the District Court of Jefferson County overruling its plea of privilege. The cause appears to be improperly docketed in this court, since it is styled "A. E. Boger, et al., Appellant" and A. E. Boger, one of the defendants below, has not appealed from the judgment under consideration. Moore, Inc., was the only defendant below filing a plea of privilege and the only appellant before us in this cause.
The only brief filed in this cause is that of appellant Moore, Inc. Plaintiffs below, appellees Leyendecker, et al., originally filed suit in the District Court of Harris County against all of the defendants below except Moore, Inc. The cause was transferred to the District Court of Jefferson County on the plea of privilege of A. E. Boger. Thereafter the plaintiffs below filed an amended original petition and Moore, Inc., was made a party defendant. Moore, Inc., the appellant here, filed its plea of privilege to be sued in Jasper County on the ground that it was a foreign corporation with a permit to do business in Texas with an office and agent in Jasper County. This plea of privilege was controverted by plaintiffs below. The defendant, A. E. Boger, also filed a plea attempting to controvert the plea of privilege of his co-defendant, Moore, Inc. He also filed, with the permission of the trial court, a trial amendment of his plea controverting the plea of privilege of Moore, Inc., stating in such trial amendment that, joining in the resistance by J. B. Leyendecker, et al., plaintiffs, to the plea of privilege asserted by Moore, Inc., he adopted all the allegations by the plaintiffs in their controverting plea and all of the allegations made in plaintiff's first amended original petition, excepting from such adoption any of such pleadings which were inimical or adverse to Boger's interests, rights and pleadings. This trial amendment was filed on September 25, 1947, the judgment overruling the plea of privilege having been entered September 10, 1947, and appellant's appeal bond having been filed September 17, 1947.
Trial was had on the issue of venue and defendant Boger assumed the burden of showing that the appellants' plea of privilege should be overruled. Plaintiffs below were represented in court by an attorney, but presented no testimony to substantiate the allegations made in their controverting plea. At the conclusion of the testimony the trial court withdrew the case from the jury and entered the order and judgment overruling the plea of privilege of Moore, Inc., and the defendant has duly perfected its appeal to this court for review.
When the appellant Moore, Inc., filed its plea of privilege in proper form and properly verified, stating that it was a foreign corporation with a permit to do business in Texas with an authorized agent in Jasper County, Texas, that it did not have an agent or a representative or...
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Members Mut. Ins. Co. v. Tapp, 194
...v. Butaud, Tex.Civ.App., 350 S.W.2d 958, no writ hist.; Graham v. Ozuna, Tex.Civ.App., 275 S.W.2d 735, no writ hist.; Boger v. Leyendecker, Tex.Civ.App., 209 S.W.2d 210, no writ hist.; Key v. Mineral Wells Inv. Co., Tex.Civ.App., 96 S.W.2d 804, no writ The order overruling appellant's plea ......
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...by the defendant in Harrison County, Texas, the trial court should have sustained defendant's plea of privilege. See Boger v. Leyendecker, Tex.Civ.App., 209 S.W.2d 210. It is our further opinion that since plaintiff-appellee neither pleaded nor proved that any fraud was committed by appella......
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...of that requirement we cite Compton v. Elliott, Tex.Com.App., 88 S.W.2d 91, opinion adopted by the Supreme Court; Boger v. Leyendecker, Tex.Civ.App., 209 S.W.2d 210; Stewart v. McLean, Tex.Civ.App., 210 S.W.2d 274; and the authorities cited in the foregoing cases. As pointed out by Judge Sm......