Compton v. Elliott

• Decision Date: 20 November 1935
• Docket Number: No. 1578-6422.,1578-6422.
• Citation: 88 S.W.2d 91
• Parties: COMPTON v. ELLIOTT.
• Court: Texas Supreme Court

88 S.W.2d 91

COMPTON v. ELLIOTT.

No. 1578-6422.

Commission of Appeals of Texas, Section B.

November 20, 1935.

Appeal from Court of Civil Appeals of Eleventh Supreme Judicial District.

Action by Ottis Compton against R. A. Elliott who filed a plea of privilege. From a judgment sustaining the plea, plaintiff appeals, and the Court of Civil Appeals certified questions to be answered by Commission of Appeals .

Questions answered.

J. G. Harrell and Bryan H. Atchison, both of Breckenridge, for appellant.

Homer T. Bouldin, of Albany, for appellee.

SMEDLEY, Commissioner.

The certificate from the Court of Civil Appeals for the Eleventh supreme judicial district thus concisely and clearly states the nature of the cause and the questions to be answered:

"Ottis Compton instituted this suit against R. A. Elliott in the district court of Stephens county for damages alleged to have been suffered by him by reason of malicious prosecution charged to have been initiated or instituted by Elliott against Compton in Stephens county, where the plaintiff had been indicted, tried and acquitted for the crime of cow theft. Defendant Elliott timely filed a statutory plea of privilege to be sued in Shackelford county, the county of his residence. A controverting plea was filed by Compton in which he sought to maintain the venue of the cause in Stephens county, where he alleged the crime of malicious prosecution had been initiated or instituted against him, under and by virtue of exception 9 to the general venue statute, article 1995, Rev.St., which exception reads: `Crime or trespass.—A suit based upon a crime, offense, or trespass may be brought in the county where such crime, offense, or trespass was committed, or in the county where the defendant has his domicile.'

"It will be observed that the instant case is one falling in that class wherein the facts relied on for venue in the county of the suit are also, in the main, the essential facts on which liability in the suit is predicated. There is no question about the sufficiency of the plaintiff's petition, the plea of privilege, or the controverting affidavit. The issues arising under the plea of privilege and controverting affidavit were tried before the court and the plea of privilege was sustained. Upon the trial both the plaintiff and the defendant introduced testimony on the issue of whether or not the defendant committed the crime of malicious prosecution in Stephens county. The evidence established beyond question that, if the defendant committed such offense, same was committed in Stephens county, but the issue was sharply conflicting as to whether such offense was committed at all. As said in our original opinion, the testimony in the record was sufficient to support either conclusion. Based upon such testimony, the trial court found in favor of the defendant, Elliott, and changed the venue of the cause to Shackelford county.

"In this court's original opinion disposing of the case, all members of the court were in accord in their views and affirmed the judgment of the trial court. On motion for rehearing the points presented by the appellant were again considered and the authorities re-examined, with the result that two members of the court are still of the opinion that the judgment of the trial court ought to be affirmed, while the other member dissented from such view. The majority overruled the motion for rehearing by an opinion giving additional reasons for so doing. Our original opinion, together with the opinion of the majority on rehearing and the dissenting opinion on rehearing, will be found in 55 S.W. (2d) 247.

"After the motion for rehearing was overruled, the appellant filed in this court a motion that our judgment overruling his motion for rehearing be set aside, and that certain questions involved in the appeal, and upon which the same is predicated, be certified to your court. After due consideration, we have concluded that this motion should be granted, and accordingly our judgment overruling appellant's motion for rehearing has been set aside and said motion for rehearing is now pending before this court.

"No member of the court agrees with appellant's views, but in order that his views as well as the divergent views of the members of this court be called to the attention of your court, we certify the following three questions and respectfully request answers thereto:

"(1) The evidence being conflicting upon the issue of whether or not defendant committed the crime of malicious prosecution against the plaintiff in Stephens county, and the trial court having found, upon sufficient evidence, that no such crime was committed, did this court err in affirming the judgment of the trial court?

"(2) The plaintiff having made at least a prima facie showing that the defendant committed the crime of malicious prosecution against him in Stephens county, should this court have disregarded the defendant's testimony, reversed the judgment, and remanded the cause for trial on its merits to the district court of Stephens county?

"(3) Under the facts as above detailed, was the burden which the law imposes upon the plaintiff to prove the fact or facts to show that the case was within the exception to the general rule of venue, discharged by assuming, without proving, that the crime was committed, and proving by a preponderance of the evidence that, if so, then it was committed in Stephens county?"

Answers to the questions presented depend upon the determination of the quantum of proof required and the nature of the hearing to be had, when the defendant files a plea of privilege in statutory form to be sued in the county of his residence and the plaintiff files a controverting plea, seeking to maintain venue in the county where the cause is pending by alleging facts showing that the suit is based upon a crime, offense, or trespass committed in such county.

Article 1995, Revised Civil Statutes of 1925, announces the rule that an inhabitant of the state shall not be sued out of the county of his domicile and then makes thirty-two exceptions to the rule. Article 2007 prescribes the form of a plea of privilege to be sued in the county of one's residence, and gives to such plea when filed the force and effect of prima facie proof of the defendant's right to change of venue, requiring the plaintiff, if he desires to controvert the plea of privilege, to file a controverting plea under oath, "setting out specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending." Article 2008 provides for a hearing by the court of the plea of privilege and the entry of judgment thereon, and gives to either party the right to appeal from the judgment sustaining or overruling the plea of privilege.

The substance of these familiar articles of the statutes has been stated to emphasize their several most important features: The general rule that one shall not be sued outside the county of his domicile; giving to the statutory plea the effect of prima facie proof of the right to change the venue; requiring the plaintiff to plead specifically the venue fact or facts upon which he relies; providing for a hearing by the court; giving the right of appeal.

It is well settled that "with the venue challenged, under proper plea, by one sued without his county, * * * the burden not only to allege but to prove that the case is within one of the exceptions to the statute rests on the plaintiff." Coalson v. Holmes, 111 Tex. 502, 510, 240 S. W. 896, 898; Hilliard Bros. v. Wilson, 76 Tex. 180, 13 S.W. 25; World Company v. Dow, 116 Tex. 146, 287 S.W. 241; Benson v. Jones, 117 Tex. 68, 296 S.W. 865; Greenville Gas & Fuel Co. v. Commercial Finance Co., 117 Tex. 124, 298 S.W. 550; Duffy v. Cole Petroleum Co., 117 Tex. 387, 5 S.W.(2d) 495; Johnson v. Dallas Cooperage & Woodenware Co., 120 Tex. 27, 34 S.W.(2d) 845; Berry v. Pierce Petroleum Corporation, 120 Tex. 452, 39 S.W.(2d) 824.

Some of the decisions last cited announce the same rule as that quoted, but more exactly, by stating that the plaintiff, to defeat the plea of privilege, must both plead and prove the facts relied upon to bring the case within one of the exceptions. Obviously, the facts so referred to are the "facts relied upon to confer venue of such cause on the court where the cause is pending," required by article 2007 to be set out specifically in plaintiff's controverting plea. Such facts we shall for convenience designate "venue facts."

The venue facts which a plaintiff, desiring to sue a defendant outside the county of defendant's domicile, must allege and prove, if the defendant asserts his privilege, are those which are stated in the particular exception of article 1995 that is applicable or appropriate to the character of suit alleged in plaintiff's petition. Here the plaintiff sued the defendant for damages for malicious prosecution, which is made an offense by article 1298 of the Penal Code. He invoked exception 9 of article 1995, his suit being based upon a crime or offense. This exception provides that such suit "may be brought in the county where such crime, offense, or trespass was committed." The venue facts, therefore, which plaintiff is required to plead and prove, are that the crime or offense alleged was committed and that it was committed in the county where the suit is pending. The substance of this exception of article 1995 is that venue may not be maintained in a county not the domicile of the defendant unless the crime, offense, or trespass upon which the suit is based was committed in such county. Proof of the fact of the commission of the crime, offense, or trespass is as essential as is proof of the place where it was committed. The commission of the crime,...