Bowman v. Flint

• Decision Date: 29 October 1904
• Citation: 82 S.W. 1049
• Parties: BOWMAN v. FLINT.
• Court: Texas Court of Appeals

82 S.W. 1049

BOWMAN v. FLINT.

Court of Civil Appeals of Texas.

October 29, 1904.

Appeal from District Court, Hemphill County; B. M. Baker, Judge.

Action by L. T. Bowman against D. C. Flint. From a judgment dismissing the cause for want of jurisdiction, plaintiff appeals. Reversed.

Willis & Willis and H. E. Hoover, for appellant. W. D. Fisher, for appellee.

STEPHENS, J.

The following is appellant's statement of the case, which is accepted by appellee:

"This suit was instituted by appellant, L. T. Bowman, in the district court of Hemphill county, Texas, on November 13, 1903. The original petition stated, in substance, that the plaintiff resided in Roger Mills county, Okl., and the defendant in Hemphill county, Texas; that on or about the ____ day of February, 1903, and at the date of the institution of this suit, defendant, D. C. Flint, was, and still is, the owner of section number 64, block 41, situated in Hemphill county, Texas, and is doing business in said county, renting lands and other property and loaning money in said county of Hemphill; that defendant negligently left open and unmarked a well or hole on said section of land, about seventy-five feet deep, on or near a public road running across the same; that plaintiff, without negligence on his part, while attempting to travel said road, the same being unfenced, and by reason of the road being obstructed by snow, and without any knowledge of the existence of said hole or well, drove into the same, whereby his horses and harness, of the value of five hundred ($500.00) dollars, were lost, having fallen into said well, a distance of seventy-five feet; that, by reason of the negligence on the part of said defendant in permitting said dangerous hole or well to remain without mark or anything to indicate its presence, defendant became liable for the damages sustained by plaintiff. Plaintiff asked for judgment in the sum of five hundred ($500) dollars. Service was had by personal service on the defendant in Hemphill county. The defendant, D. C. Flint, filed his first amended original answer on January 11, 1904, consisting, among other defenses, of a sworn plea to the jurisdiction by reason of the fact that both plaintiff and defendant were nonresidents of the state of Texas, and resided in the territory of Oklahoma, at the time the damages were alleged to have been received. The truth of this plea was submitted to the court upon evidence taken without the intervention of a jury. The court, after hearing the evidence upon the plea to the jurisdiction of the court, found in favor of said plea, and entered judgment dismissing the suit."

The court rendered judgment on the following conclusions:

"(1) The question raised by the petition and the plea to the jurisdiction, as to whether or not defendant, D. C. Flint, was at the institution of the suit a nonresident of Texas, and is so now, having been submitted to the court by agreement of counsel on both sides, before going further into the case, I find that when the suit was instituted he was not a resident of Texas, but was a resident of Oklahoma Territory, has remained so, and is so...