Burke v. Merrill Lynch, Pierce, Fenner & Smith, Inc.
| Decision Date | 10 May 1961 |
| Docket Number | No. 13749,13749 |
| Parties | E. J. BURKE, Sr., Appellant, v. MERRILL LYNCH, PLERCE, FENNER & SMITH, INC., Appellee. |
| Court | Texas Court of Appeals |
Oliver & Oliver, San Antonio, Elmore H. Borchers, Laredo, for appellant.
Lang, Byrd, Cross, Ladon & Oppenheimer, San Antonio, for appellee.
This is a plea of privilege case. Appellee, Merrill Lynch, Pierce, Fenner & Smith, Inc., filed suit on an open account in the District Court of Bexar County against appellant, E. J. Burke, Sr., who filed his plea of privilege to be sued in Webb County, the alleged county of his residence. Appellee controverted the plea of privilege, contending that appellant was a resident of Bexar County. After hearing the evidence, the trial court held that appellant was a resident of Bexar County and overruled the plea of privilege, from which judgment E. J. Burke, Sr., has prosecuted this appeal.
Appellant's first contention is that there is no evidence to support the judgment overruling his plea of privilege. There is evidence tending to show that while appellant may have his domicile in Webb County, he also has a residence in Bexar County for venue purposes. There can be no doubt that a person for venue purposes may have a dual residence. Snyder v. Pitts, 150 Tex. 407, 241 S.W.2d 136; Central Texas Electric Co-operative v. Stehling, Tex.Civ.App., 282 S.W.2d 729.
There were no findings of fact by the trial court, and none were requested. Under such circumstances the judgment must be upheld if there is any evidence of probative force to support it on any theory of the case. Gunstream v. Oil Well Remedial Service, Tex.Civ.App., 233 S.W.2d 897; 4 McDonald, Texas Civil Practice, Sec. 16.10.
Appellant testified tht the moved to Laredo, Webb County, Texas, about a year ago and has lived there since, claiming it as his domicile. His business now is general manager of the Sands Motor Hotel on Laredo, where he has an apartment which he occupies as his home. The Sands Hotel has about 102 units. Most of his mail comes to Laredo, but some of it goes to 1100 Goliad Road, San Antonio, Texas. He owns the property at 1100 Goliad Road, but contends that is not his office, but is that of his son. His nephew, William P. Hailey, is employed by him as a lawyer, and has rendered his property for him in Bexar County. He did not tell his lawyer to claim a homestead exemption for him in the year 1960, in San Antonio, and his lawyer did so without discussing the matter with him. He is a member of the Laredo Chamber of Commerce and buys his poll tax in Webb County. He was married to his present wife in February, 1959. She lives at 402 Cave Lane, San Antonio. He does not live with her and he does not live at 402 Cave Lane. His wife has visited him two or three times in Laredo, trying to settle their differences, but this could not be done. They are living apart but there is no divorce suit pending at this time.
William P. Hailey testified that he was appellant's attorney and...
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