Brown v. Cox

• Decision Date: 12 October 1932
• Docket Number: No. 7730.,7730.
• Citation: 53 S.W.2d 848
• Parties: BROWN v. COX.
• Court: Texas Court of Appeals

53 S.W.2d 848

BROWN v. COX.

No. 7730.

Court of Civil Appeals of Texas. Austin.

October 12, 1932.

Rehearing Denied October 26, 1932.

Appeal from District Court, McCulloch County; E. J. Miller, Judge.

Suit by W. W. Cox against Herman Brown, individually and as surviving partner of the partnership of Brown & Root. From a judgment overruling the defendant's plea of privilege, the defendant appeals.

Reversed, and the cause remanded.

Sneed & Martins, of Austin, for appellant.

Shropshire & Sanders, of Brady, for appellee.

BAUGH, J.

Appeal is from a judgment overruling appellant's plea of privilege to be sued in Travis county, the place of his residence. He was sued individually and as surviving partner of the partnership of Brown & Root; the other partner, Dan E. Root, having died prior to the filing of the suit.

The first question presented raises the sufficiency of appellee's controverting affidavit to appellant's plea of privilege. Omitting formal parts, this controverting plea was as follows: "That on or about the 20th day of November, A. D. 1928, this plaintiff W. W. Cox entered into a written contract with Herman Brown and Brown & Root, a partnership in which it was agreed by and between said parties that Brown & Root and Herman Brown would grade and hard surface certain streets in the city of Brady, McCulloch County, Texas, more particularly certain streets in and about the residence of this plaintiff which is located in said city of Brady, McCulloch County, Texas; that said hard surfacing and grading was to be done by defendants in a manner conforming with the plans and specifications set out in said contract in writing to be performed in the said city of Brady. McCulloch County, Texas. That by reason of the defendants having breached said written contract by failing to perform the same in accordance with the same therein specified this suit may be maintained in this court by virtue of article 1995, Vernon's Statutes, subd. 5."

Nowhere does such controverting plea refer to nor adopt in any manner the original petition, nor set out any facts therein alleged.

Appellant's plea of privilege, which was in statutory form, established prima facie his right to have the suit transferred to Travis county. To defeat that right, it was incumbent upon appellee, under article 2007, R. S., to both plead and prove specifically the fact or facts relied upon to do so. It is just as essential that his pleading be sufficient in that regard as that his proof be. In the instant case we think appellee's pleading on that issue was insufficient. Nowhere does it allege any facts which would identify the property involved, the streets complained of, the terms of the contract, place of payment, nor intimate when, wherein, nor how, such alleged contract was breached. As a pleading, it was clearly subject to the demurrers lodged against it, and sets forth only legal conclusions. While the court may look to the original petition to ascertain the nature or character of the suit in question—that is, whether, for example, it involved lands, breach of contract, action in trespass, or tort, or related to some subject-matter over which the statute fixes venue specifically in some county—it cannot look to the petition for specific facts on the issue of venue, where no reference is made to same in the controverting plea. We are confined, therefore, under the controverting plea above set out, entirely to the averments of that plea on the sufficiency of the facts alleged. Penix v. Davis (Tex. Civ. App.) 265 S. W. 718; Jacobson v. Berwick (Tex. Civ. App.) 289 S. W. 1035; Bender v. Kowalski (Tex. Civ. App.) 13 S.W.(2d) 201; Lawless v. Tidwell (Tex. Civ. App.) 24 S. W.(2d) 515; Chicago Bridge & Iron Co. v. Bailey (Tex. Civ. App.) 44 S.W.(2d) 452; Commercial Standard Ins. Co. v. Lowrie (Tex. Civ. App.) 49 S.W.(2d) 933, 937. We think the controverting plea failed...