Dees v. McDonald
| Decision Date | 12 February 1931 |
| Docket Number | No. 2496.,2496. |
| Citation | 36 S.W.2d 301 |
| Parties | DEES v. McDONALD. |
| Court | Texas Court of Appeals |
Appeal from District Court, Pecos County; C. R. Sutton, Judge.
Suit by J. A. McDonald against Frank Dees. From a judgment overruling defendant's plea of privilege, he appeals.
Reversed, and cause ordered transferred to Upton county.
B. F. Howell, of Rankin, and Lloyd Kerr, L. D. Gayer, and J. A. Thomas, all of San Angelo, for appellant.
W. B. Silliman, of Ft. Stockton, and J. F. Sutton, James Cornell, and R. G. Hughes, all of San Angelo, for appellee.
Appellee filed this suit in the district court of Pecos county, Tex., against appellant, who he alleged to be a resident of Upton county.
Appellee alleged that he was the owner in fee simple of an undivided one-third interest in "all of Survey No. 38, original survey for the public school fund by virtue of Certificate No. 8/1630, issued to the H. & G. N. Railway Company in Block No. 12" in Pecos county, Tex.; that on the 18th day of June, 1927, he was entitled to possession of such lands and premises; that on January 1, 1928, appellant unlawfully entered thereon and dispossessed him and withholds from him possession thereof; and that appellant had occupied and used the premises for two years to appellee's damage in the sum of $10,000.
Appellee prayed for recovery of his one-third interest in the land, that title and possession thereof be vested in him, and that he be awarded his damages.
Appellant files his plea of privilege to be sued in Upton county. This plea was controverted by appellee, who alleged therein that the venue was properly in Pecos county by virtue of the provisions of exception No. 14 to the venue statute.
Upon a hearing, appellant's plea of privilege was overruled, and he has appealed.
Opinion.The propositions advanced by appellant upon which he seeks a reversal are: (1) That the burden is on a plaintiff controverting a plea of privilege to establish the existence of one of the exceptions conferring venue in a county other than the county of defendant's residence; (2) that the controverting affidavit and the pleadings of plaintiff are not evidence and are incompetent to establish any fact on a trial of a controverting plea of privilege; and (3) that upon a trial of a controverted plea of privilege, where no evidence is introduced except plaintiff's pleadings and controverting affidavit, the court should transfer the cause to the county of defendant's residence.
Appellee, in response to the above propositions, lays down the following counter proposition: "Where a suit in statutory form of trespass to try title is filed, for recovery of title to and possession of real estate, in the County where the lands are alleged to lie, and defendant in such suit files a plea of privilege in statutory form, alleging his residence to be in another County, and plaintiff controverts such plea in due time by a plea alleging that such suit is for the recovery of lands lying in the County where the suit is pending, no evidence, other than the pleadings, is necessary to such venue in the County where the suit was filed."
After a study of the authorities cited by both parties, we have concluded that the trial court erred in overruling the plea of privilege.
Subdivision 14 of article 1995, Revised Statutes, provides: "Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet...
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