Delaporte v. Currey, 5192
| Decision Date | 19 October 1972 |
| Docket Number | No. 5192,5192 |
| Citation | 486 S.W.2d 114 |
| Parties | John and Carol Ann DELAPORTE, Appellants, v. Arthur R. CURREY, Appellee. |
| Court | Texas Court of Appeals |
Margolis & Staffin, Harry W. Margolis, Dallas, for appellants.
Moses & Truett, Nick Warden, McKinney, for appellee.
This is a venue case. The facts are without dispute.
Plaintiffs, John Delaporte and wife, are residents of Collin County, Texas. Defendant Arthur R. Currey, is a resident of Seminole County, Oklahoma. Plaintiffs brought this action in Dallas County, alleging that the defendant has refused to fulfill the terms of a written agreement to sell them a purebred stallion for which they have allegedly paid defendant $3,000. They seek an order requiring defendant to perform the contract.
Defendant filed a plea of privilege setting forth the fact that he is a resident of Oklahoma; and asserting 'that by virture of Subd. 3 of Article 1995, Vernon's Ann.Rev.Civ.St., Plaintiffs should have properly brought this suit in the county in which they reside, and that such provision is the only exception to the general rule provided under Article 1995 requiring suit to be brought in the Defendant's domicile.'
Plaintiffs duly controverted defendant's plea. After a hearing without a jury, the trial court granted the plea of privilege and ordered the cause transferred to Collin County.
The pertinent provisions of Article 1995 are as follows:
'No person who is an inhabitant of this State shall be sued out of the county in which he has his domicile except in the following cases:
Plaintiffs appeal on three points of error contending that because defendant is a non-resident he is 'not entitled to the benefits' of the venue statute; and that Subd. 3 is permissive rather than mandatory, thereby giving plaintiffs the option of filing the suit in the county of their residence or elsewhere.
Article 1995, and Rule 86, Texas Rules of Civil Procedure, provide that a defendant 'who is an inhabitant of this State' may, by the filing of a proper plea of privilege, (1) require that any suit against him be tried in the county of his residence unless plaintiff's case falls within one of the exceptions enumerated in Article 1995; or (2) require that the suit be tried in a county in which venue of the case is made mandatory by statute. Shell Petroleum Corporation v. Grays, 122 Tex. 491, 62 S.W.2d 113, 115 (1933); Jefferies v. Dunklin, 131 Tex. 289, 115 S.W.2d 391, 393 (1938);...
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Portland Sav. and Loan Ass'n v. Bevill, Bresler & Schulman Government Securities, Inc.
...the plea." Id. at 956. See also Dealer Service Plan, Inc. v. Chabarria, 543 S.W.2d 740 (Tex.Civ.App. El Paso 1976, no writ); Delaporte v. Currey, 486 S.W.2d 114 (Tex.Civ.App. Waco 1972, no writ); Aviation Credit Corp. v. University Aerial Service Corp., 59 S.W.2d 870 (Tex.Civ.App. Eastland ......
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Dealer Service Plan, Inc. v. Chabarria, 6548
...unless the venue of the action is controlled by some mandatory provision of the statute.' This was the holding by the Court in Delaporte v. Currey, 486 S.W.2d 114 (Tex.Civ.App.--Waco 1972, no writ), where the Court 'Article 1995, and Rule 86, Texas Rules of Civil Procedure, provide that a d......