Byer v. Dallas Power & Light Co., 15128
| Decision Date | 18 May 1956 |
| Docket Number | No. 15128,15128 |
| Citation | 290 S.W.2d 948 |
| Court | Texas Court of Appeals |
| Parties | E. R. BYER et ux., Appellants, v. DALLAS POWER & LIGHT CO., Appellee. |
Carrington, Gowan, Johnson, Bromberg & Leeds, and John L. Hauer, Dallas, for appellants.
W. Autry Norton, Jos. Irion Worsham, and Worsham, Forsythe & Riley, Dallas, for appellee.
This is an appeal from an interlocutory order in a condemnation suit overruling a motion for change of venue based on appellant landowner's affidavit that too great prejudice exists in Dallas County to enable him to obtain a fair trial there. The condemnation suit is still pending in the County Court.
Appellee has filed a motion to dismiss the appeal on the ground that the order in question does not come within the class of interlocutory orders from which an appeal may be taken.
Appellants assert that the right to appeal from interlocutory orders concerning venue issues is not limited to plea of privilege cases, but extends to interlocutory orders overruling all pleas of venue. In support of this contention we are cited to Shell Petroleum Corp. v. Grays, Tex.Com.App., 122 Tex. 491, 62 S.W.2d 113, and Wiley v. Joiner, Tex.Civ.App., 223 S.W.2d 539, no writ history.
In our opinion the cited cases do not support appellants' contention. They are both cases dealing with true pleas of privilege asserting a right to trial in a particular county. They are both cases in which pleas of privilege and controverting affidavits were filed.
The Shell Petroleum case was a suit to recover land and for damages to land lying in Gregg County. The court held the plea of privilege was good under Art. 1995 subd. 14, V.A.C.S., which expressly provides that such suits must be brought in the county in which the land may lie. Plaintiffs had taken the position that under Arts. 2007 and 2008, V.A.C.S., 'it is only where the appeal is from an interlocutory order overruling a personal plea of privilege 'to be sued in the county of one's residence' that an appeal is provided for'-that an appeal does not lie from an order overruling a plea of venue coming under one of the provisions of Art. 1995, V.A.C.S. The Supreme Court adopted the opinion of the Commission of Appeals holding adversely to plaintiffs' contention.
In Wiley v. Joiner, supra, the defendant filed a pleading which did not meet the requirement of Rule 86, Texas Rules of Civil Procedure, but which was denominated by defendant as a plea of privilege and was treated by the parties and the court as a plea of privilege. This proceedings prescribed by Rule 87, T.R.C.P., were adhered to. The case involved a question as to the interpretation and application of Art. 1995,...
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