Frazier v. Williams, 3743

• Decision Date: 15 June 1962
• Docket Number: No. 3743,3743
• Citation: 359 S.W.2d 213
• Parties: H. R. FRAZIER et al., Appellants, v. T. W. WILLIAMS et al., Appellees.
• Court: Texas Court of Appeals

Page 213

359 S.W.2d 213

H. R. FRAZIER et al., Appellants, v. T. W. WILLIAMS et al., Appellees.

No. 3743.

Court of Civil Appeals of Texas, Eastland.

June 15, 1962.

Lester O. Berg, Abilene, Harry E. Lofthus, Amarillo, for appellants.

Royce B. Adkins, Dist. Atty., Haskell, W. R. Ely, Abilene, for appellees.

WALTER, Justice.

H. R. Frazier and Lon A. Fuller filed suit against T. W. Williams, Arlos Weaver, Olen Dotson, Hallie Chapman, W. R. Johnson, Frank C. Scott, Noel Reynolds, Hunter Woodruff, Joseph L. Brown, Consolidated Tungsten Mines, Inc., and Yucca Tungsten Company for conversion of certain mining properties located in Arizona. Williams, Weaver, Dotson, Chapman, Johnson and Scott filed pleas of privilege to be sued in Haskell County, the county of their residence. The plaintiffs controverted said pleas and alleged that the District Court of Taylor County had venue under Subdivision 4 of Article 1995 of the Vernon's Ann. Revised Civil Statutes of Texas. The court sustained the defendants' pleas of privilege.

The plaintiffs have appealed. They contend that the court erred in sustaining the defendants' pleas of privilege because the plaintiffs proved conclusively that their cause of action was maintainable in Taylor County under said Subdivision 4.

The applicable provision of Subdivision 4 of Article 1995 provides 'If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides.' In order to maintain venue under Subdivision 4, the plaintiffs had the burden of proving (1) that one of the defendants resided in Taylor County and (2) that he had a cause of action against the resident defendant. He also had the burden of alleging facts showing that the non-resident defendants were properly joined in the suit. Ladner v. Reliance Corporation, 156 Tex. 158, 293 S.W.2d 758; Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300.

'The general rule of venue is, of course, that a defendant shall be sued in his own county, and however many and important are the exceptions contained in the statute, an equal doubt between the exception and the rule is to be resolved in favor of the rule. Stated differently, the application of the exception must clearly appear.' Goodrich v. Superior Oil Company, 150 Tex. 159, 237 S.W.2d 969.

In cases tried before the court without a jury, in the absence of a point that the judgment is contrary to the overwhelming weight and preponderance of the evidence, the rule is well settled that the judgment must be affirmed if there is any evidence of probative value to support it and that only evidence which tends to support the judgment may be considered. See Wilson v. Teague Independent School District, Tex.Civ.App., 251 S.W.2d 263, (Writ Ref.).

The plaintiffs charged that the defendants mined and removed...