First Nat. Bank of Rhome v. Cage

• Decision Date: 17 October 1930
• Docket Number: No. 736.,736.
• Citation: 32 S.W.2d 500
• Parties: FIRST NAT. BANK OF RHOME v. CAGE et al.
• Court: Texas Court of Appeals

32 S.W.2d 500

FIRST NAT. BANK OF RHOME v. CAGE et al.

No. 736.

Court of Civil Appeals of Texas. Eastland.

October 17, 1930.

Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.

Suit by B. B. Cage against the First National Bank of Rhome and others. From an order overruling a plea of privilege, defendant named appeals.

Order and judgment on the merits reversed, with directions.

Paddock, Massingill & Belew, of Fort Worth, and Scott Key, of Eastland, for appellant.

Frank Judkins, of Eastland, for appellees.

FUNDERBURK, J.

B. B. Cage brought this suit in the district court of Eastland county against L. B. Finlayson, Mack Taylor, and the First National Bank of Rhome, Tex. The plaintiff's original petition was filed July 12, 1928, and therein the places of residence of the defendants were alleged to be L. B. Finlayson in Eastland county, the First National Bank of Rhome in Wise county, and Mack Taylor in Tarrant county. On August 7, 1928, said First National Bank of Rhome filed a plea of privilege in statutory form, alleging Tarrant county was its place of residence. On August 8, 1928, plaintiff filed a controverting affidavit in reply to said plea of privilege. The record discloses no other proceedings until December 5, 1929, when plaintiff filed his first amended original petition, naming the same defendants, but not stating their places of residence. On the same day said bank filed its "Amended Plea of Privilege," stated to be "in lieu of and instead of the plea of privilege heretofore filed in this cause on the 7th day of August, 1928." The amended plea of privilege was also in statutory form, and only differed from the original in stating that said defendant's place of residence was in Wise county instead of Tarrant county. Also the same day plaintiff B. B. Cage filed a controverting affidavit in reply to the bank's amended plea of privilege. On December 6, 1929, the trial court, after having overruled a general exception urged by the bank to the controverting affidavit, also overruled the plea of privilege, from which action the bank has prosecuted this appeal.

On the several questions presented there are two, the decision of either one of which will be sufficiently determinative of our judgment, and the other questions need not be noticed. These questions are: (1) Were sufficient facts alleged in the controverting affidavit to justify the action of the court in overruling the plea of privilege? (2) Was there any proof of sufficient facts to warrant the court's action in overruling said plea?

The law requires the controverting affidavit to set out "specifically the fact or facts relied upon to confer venue" of a cause on the court where the cause is pending. R. S. 1925, art. 2007. The only fact or facts alleged in this controverting affidavit to show that venue of this suit was properly in Eastland county was the single fact that Finlayson, one of the defendants, resided in that county. Logically, that would appear to meet the statutory requirement and be sufficient to present the issue that the case comes within the exception provided in subdivision 4 of article 1995. But the courts have declined to adopt that view. It seems to be definitely settled that a controverting affidavit which seeks to maintain venue in a particular county on the ground that one of the defendants resides in that county must allege the facts showing a bona fide cause of action against the resident defendant, and further showing, at least, a cause or causes of action which, as asserted against the several defendants, is of such nature that the nonresident defendant claiming his privilege is a necessary or proper party to the suit. Richardson v. Cage, 113 Tex. 152, 252 S. W. 747; World Co. v. Dow, 116 Tex. 146, 287 S. W. 241; Coalson v. Holmes, 111 Tex. 502, 240 S. W. 896; Duffy v. Cole Petreleum Co., 117 Tex. 387, 5 S.W.(2d) 495; Oakland Motor Car Co. v. Jones (Tex. Civ. App.) 29 S.W.(2d) 861, 865.

Such being the rule, it is clearly apparent that the controverting affidavit was insufficient to form the basis for the introduction of evidence, or the basis of a judgment overruling the...