Congleton v. L. Mundet & Son, 9625.

• Decision Date: 29 October 1931
• Docket Number: No. 9625.,9625.
• Citation: Congleton v. L. Mundet & Son, 43 S.W.2d 1111 (Tex. App. 1931)
• Parties: CONGLETON v. L. MUNDET & SON, Inc.
• Court: Texas Court of Appeals

43 S.W.2d 1111

CONGLETON v.L. MUNDET & SON, Inc.

No. 9625.

Court of Civil Appeals of Texas. Galveston.

October 29, 1931.

Rehearing Denied December 10, 1931.

Appeal from District Court, Harris County; Allen B. Hannay, Judge.

Action by L. Mundet & Son, Inc., against J. A. Congleton.From a judgment for plaintiff, defendant appeals.

Affirmed.

James G. Donovan and W. L. Smith, both of Houston, and Coombes & Coombes, of Dallas, for appellant.

Lewis & Burr, of Houston, for appellee.

GRAVES, J.

The appellee sued appellant in Harris county as for the recovery of some personal property (cork products) located there, pursuant to R. S. arts. 2217 and 1995, subd. 10, alleging, in so far as deemed material:

"2.Heretofore at various times plaintiff has had shipped to itself in care of the defendant at Houston, Texas, the cork and cork products hereinafter specifically described, and the defendant has come into possession of said goods as the factor and distributor of plaintiff and has stored the same and now holds possession of same as hereinafter more specifically alleged.

"3.Plaintiff is and has been at all times referred to in this petition the owner of said goods and entitled to the possession of same on demand.On or about August 12, 1930, plaintiff made demand on the defendant for the possession of said goods, which was then and there refused. * * *

"5.The said goods constitute the supply from which plaintiff supplies the demand for such products in Texas and adjoining states, and they are selected and located in conformity with such trade demand and transportation facilities serving same; and the said goods and property have an especial value to plaintiff.

"Wherefore, premises considered, plaintiff prays that the defendant be cited to appear and answer this petition and that upon hearing hereof it have judgment against the defendant for the possession of said goods in this petition described and for such writs, orders and process as may be necessary to vest it with such possession; and, in the alternative, for the value thereof."

The appellant duly filed a statutory plea of privilege, asserting his right to be sued in Dallas county, where he had his domicile, whereupon appellee filed its controverting affidavit repeating and making its entire petition a part thereof, specifically claiming the venue to be properly laid in Harris county because the suit was one for the recovery of personal property that was located there.

At a hearing on the issue thus joined, the sole evidence consisted of: (1) The admission of the parties that the property involved was personal property, and had been located in Harris county at the time the suit was filed; (2) the full petition of the plaintiff that had been introduced, over the defendant's objection that it was not admissible to prove the nature of the suit, for the purpose of showing the suit to be one for the recovery of personal property, and for that purpose only; (3)the defendant's plea of privilege.

The able trial judge overruled the privilege plea, upon a stated finding of fact, in addition to those specifically agreed upon below, that the suit was one for the recovery of personal property, and a conclusion of law to the effect that section 10 of R. S. art. 1995, authorized the laying of the venue thereof in Harris county.

The appeal at bar regularly proceeds from that order.

In substance, appellant very ably makes two main contentions: (1) That, in the circumstances here obtaining, the plaintiff's petition, there being nothing else in evidence, was neither receivable in proof of the cause of action alleged, nor sufficient to establish either what the same in legal...