Demmer v. Lampasas Auto Co., 7539.
| Decision Date | 10 December 1930 |
| Docket Number | No. 7539.,7539. |
| Citation | 34 S.W.2d 421 |
| Parties | DEMMER v. LAMPASAS AUTO CO. |
| Court | Texas Court of Appeals |
Appeal from District Court, Lampasas County; Few Brewster, Judge.
Action by Lampasas Auto Company against E. J. Demmer and another. From an order overruling named defendant's plea of privilege, he appeals.
Affirmed.
Woodruff & Holloway, of Brownwood, for appellant.
Abney & Walker, of Lampasas, for appellee.
Appeal from an order overruling appellant's plea of privilege in statutory form to be sued in Brown county, his domicile. The nature of appellee's suit, as disclosed by its petition, was one for debt evidenced by certain notes made payable in Lampasas county, where the suit was filed, executed by defendant, W. E. Boswell, in part payment of an automobile, and secured by a mortgage on the automobile, which mortgage was sought to be foreclosed against both Boswell and appellant Demmer, who was alleged to have purchased the automobile with record notice of appellee's mortgage, and that he was in possession of and claiming same. No other judgment was sought against Demmer, except to foreclose the mortgage. Appellee's controverting affidavit to Demmer's plea of privilege reads, in part, as follows:
On the hearing of the plea of privilege appellee proved the execution of the notes and mortgage sued upon by W. E. Boswell; that they were payable and enforceable in Lampasas county; and that Boswell had made default in the payment of the notes. Appellee also proved that the mortgage was recorded in Brown county where Demmer resided; that thereafter Demmer claimed to have purchased the automobile; and that he was in possession of and claiming the automobile. A writ of sequestration was issued and caused to be levied upon the automobile; whereupon Demmer filed his replevy bond with the sheriff, claiming the automobile to be his own and thereby retained possession of it.
Under the preceding facts venue was sustained in Lampasas county, in virtue of subdivision 29a of article 1995, which provides that, where two or more defendants are sued and the suit is lawfully maintainable in the county where the suit is filed against any one of the defendants, "then such suit may be maintained * * * against any and all necessary parties thereto"; hence this appeal.
In the main appellant contends that the controverting affidavit fails "to state any cause of action against him or any facts tending to show that he is a necessary party to the suit," and seeks to invoke that provision of article 2007, which requires that a controverting affidavit shall set "out specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending." Clearly this statute does not require that a controverting affidavit shall set out specifically the fact or facts relied upon to confer a cause of action; but merely requires that it shall set "out specifically the fact or facts relied upon to confer venue" of the pending cause, the nature of which must be determined from the petition. Nor does the statute require that plaintiff replead his cause of action in the controverting affidavit to the plea of privilege; but...
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