City of Irving v. Luttrell
| Decision Date | 04 December 1961 |
| Docket Number | No. 7132,7132 |
| Citation | 351 S.W.2d 941 |
| Parties | CITY OF IRVING v. William H. LUTTRELL et al. |
| Court | Texas Court of Appeals |
McCulloch, Ray, Rembert, Luna & Trotti, Dallas, for appellant.
Lefkowitz, Green, Ginsberg & Eades, Dallas, for appellees.
This suit was instituted by appellant, City of Irving, and is in the nature of a condemnation suit. The city is seeking to condemn a strip of land across appellees' property for a drainage and utility easement. It is undisputed that appellees' property is located in Dallas County. This appeal is from an order sustaining appellees' motion for a change of venue based on their affidavit that too great prejudice existed in Dallas County to enable them to obtain a fair trial there, and that a combination against them instigated by influential persons existed in Dallas County. The order sustaining this motion transferred the case to Rockwall County, an adjoining county.
Appellees have filed a motion to dismiss this appeal on the ground that the trial court's order sustaining the motion is not such an interlocutory order from which an appeal is allowed by law. Appellees' application for change of venue was made under the provisions of Rule 257, Vernon's Ann.Texas Rules. In support of this motion appellees cite and rely on Byer v. Dallas Power & Light Co., Tex.Civ.App., 290 S.W.2d 948 (no writ history). That case involved the identical procedural question as presented here, however the trial court in the Byer case overruled the application to change venue. Such a distinction is very material and in our opinion this distinction renders the rule in the Byer case inapplicable in the instant case.
Venue was properly laid in Dallas County under Article 3264, Subdivision 1, Vernon's Ann.Civ.St., unless Rules 257-261 V.A.T.R. were properly pleaded and applied. The trial court's order in sustaining this application is appealable, as the trial court's discretion in taking such action is subject to review. In addition, under the circumstances here we see no distinction in sustaining a motion for change of venue under Rule 257 and sustaining a plea of privilege. Rule 385 V.A.T.R. specifically provides for an appeal from an order sustaining a plea of privilege. For the reasons stated appellees' motion to dismiss is overruled.
In considering this appeal, the question to be determined is whether or not the trial court erred in sustaining the application to change venue. This requires an examination of the affidavits provided for under Rules 257 and 258. Appellees' application for a change of venue was in proper form and supported by affidavits of three other credible persons as required by Rule 257. Rule 258 directs the trial court to grant such application unless it is attacked by the opposing party. Appellant timely filed an opposing affidavit. We are therefore called upon to determine the sufficiency of this opposing affidavit. Appellees contend the opposing affidavit made no attack upon the application. We are unable to agree. Appellant duly contested the application when it denied under oath the truth of the allegations therein. It stated: '* * * it is not true * * *' that appellees could not get a...
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Governing Bd. v. Pannill
...venue merely avers "it is not true", then the raised issues must be tried by the judge, pursuant to TEX.R.CIV.P. 258. City of Irving v. Luttrell, 351 S.W.2d 941 (Tex.Civ.App.--Amarillo 1961, no writ). The burden was upon the movant to prove the facts upon which the motion for change of venu......
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Roberts v. Allen
...a motion to transfer venue is inapposite because thatcase involved opposing affidavits that created a fact issue. See City of Irving v. Luttrell, 351 S.W.2d 941, 942-43 (Tex. Civ. App.—Amarillo 1961, no pet.). Moreover, section 15.002 of the Civil Practice and Remedies Code, rather than sec......
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Robertson v. Robertson
...of venue was a sufficient attack to form an issue which must be tried by the trial court as required by Rule 258. City of Irving v. Luttrell, (Tex.Civ.App.), 351 S.W.2d 941. The issue thus formed was heard by the trial judge. The application was refused and appellant duly excepted. Thereupo......
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Henson v. Tom
...County was on the Plaintiff. Robertson v. Robertson, Tex.Civ.App., (1964), 382 S.W.2d 945, w.r., n.r.e.; City of Irving v. Luttrell, Tex.Civ.App., (1961), 351 S.W.2d 941, n.w.h.; Bennett v. Jackson, Tex.Civ.App., (1943), 172 S.W.2d 395, w.r., w.m.; Baptist Foundation of Texas v. Buchanan, T......