Funk v. Walker

• Decision Date: 17 May 1922
• Docket Number: (No. 6759.)
• Citation: 241 S.W. 720
• Parties: FUNK et al. v. WALKER et al.
• Court: Texas Court of Appeals

Page 720

241 S.W. 720

FUNK et al. v. WALKER et al.

(No. 6759.)

Court of Civil Appeals of Texas. San Antonio.

May 17, 1922.

Appeal from District Court, Tarrant County; Bruce Young, Judge.

Suit by R. E. Funk and others against B. S. Walker and others, in which a change of venue from Tarrant County to Stephens County was granted, and the plaintiffs appeal. Reversed and remanded, with instructions.

Phillips, Trammell & Caldwell, of Fort Worth, for appellants.

Wilson & Allred and McCartney, Foster & McGee, all of Breckenridge, for appellees.

SMITH, J.

The sole question presented in this appeal is whether or not appellee, B. S. Walker, is such a resident of Tarrant county as to fix venue therein as to him, he having been sued in that county, along with residents of other counties. Pleas of privilege were filed alleging that Walker was a resident exclusively of Stephens county, to which the suit was sought to be transferred. Upon a hearing the pleas were sustained, and the cause ordered transferred. This appeal is from that order.

Walker was the only witness upon the issue of whether or not he was a resident of Tarrant county. His testimony was freely given, was without evasion, and his commendable frankness has served to greatly simplify what might otherwise have been a difficult question. His testimony was undisputed, and from it the court below concluded as a matter of law that he was not a resident of Tarrant county within the meaning of the venue statute, and upon that conclusion sustained the pleas.

If the testimony in the case had conflicted to such an extent as to warrant a finding either way, upon the issue of residence, then a determination by the trial court of such question of fact, thus raised, would in either event have been binding upon this court. But, as the testimony was undisputed, the question of its effect becomes one purely of law, upon which this court must satisfy itself without reference to the conclusion reached by the trial court, since the presumption in favor of a finding of fact upon disputed testimony does not attach to a conclusion of law drawn from undisputed evidence. West End Co. v. Grigg, 93 Tex. 451, 56 S. W. 49; Ry. v. Gaddis (Tex. Com. App.) 208 S. W. 895. The only question in the case, then, reaches this court as an original proposition.

It should be said at the outset that Walker has resided at Breckenridge, in Stephens county, most if not quite all of his life, and still maintains his old home there, where, it may be further said, he and his family spend more of their time than at any other place. The existence of this fact then, narrows the inquiry here to the question of whether or not Walker has also established and maintains a place of residence in Tarrant county, in addition to his residence in Stephens county; it being well settled that a person may maintain his residence in two different counties, in which case he may be sued in either county. Pearson v. West, 97 Tex. 238, 77 S. W. 944, and authorities there cited.

The statute (article 1830) provides that "no person who is an inhabitant of this state shall be sued out of the county in which he has his domicile," to which several exceptions are specified, the only one applicable here being (section 4, same article):

"Where there are two or more defendants (as is the case here) residing in different counties in which case the suit may be brought in any county where any one of the defendants may reside."

It has been settled by the decisions that "inhabitant" and "resident," and "domicile" and "residence," are interchangeable terms as used in this statute. Taylor v. Wilson, 99 Tex. 651, 93 S. W. 109; Pearson v. West, 97 Tex. 238, 77 S. W. 944; Brown v. Boulden, 18 Tex. 432.

The question presented has been written upon, and at great length, by many of the courts of this state. One of the earlier cases was that of Brown v. Boulden, supra, in the short opinion in which Justice Wheeler seems to us to have encompassed the whole spirit of the law which was designed to preserve to the citizen the right to be sued in the county of his domicile, and at the same time prevent him from evading venue of suits against him. In that case the defendant was in the midst of the process of abandoning his old home in one county for a new habitation in another. He had broken up his establishment, and left the home site, in the one, but had not moved his household goods or the other members of his family to the other, to which he in person, with part of his slaves and personal property, had gone for the purpose of preparing a place and building the necessary structures thereon for the reception of his family and household and personal effects. Suit was brought in the latter county, in which the trial court fixed the defendant's domicile. This finding was reversed by the Supreme Court, which held that the change of residence could not be regarded as completed until the defendant had actually established his family and affairs in the new site. It was said, however, that it was the manifest intention of the statute to reserve to every inhabitant of the state the right of being sued in the county of his residence, but that, to enable a defendant to claim this right, he should be able to point to his residence "by facts so certain and notorious as to enable the plaintiff, by the use of ordinary diligence, certainly to know where to bring his suit," and that—

"The fact of residence in a particular county ought not to be so uncertain and equivocal, nor ought the statute to be so strictly construed, as that the plaintiff shall be compelled, in a case rendered doubtful and uncertain by the conduct of the defendant, to decide rightly at his peril."

From this reasoning the court concluded that —

"If a defendant has a known residence, he must be sued in the county of his residence. But if he is in the act of removing from one county to another, and his affairs are in such a state, that it cannot be certainly known in which county his residence in fact is, we think it may be held consistently with the legislative intention, that the suit may be brought in either county."

The principle thus enunciated — that where the defendant is in process of removing from one county to another, thereby rendering it uncertain as to which is the county of his domicile, he may be sued in either county— has been broadened, so that now the rule is well settled that where an inhabitant has established two places of abode in different counties and uses them indiscriminately as places of residence, according to his pleasure or convenience, each constitutes his residence within the meaning of the venue statute, and he may be sued in either. The undisputed facts in this case bring appellant Walker clearly within this rule, as will be shown by a statement of the evidence.

As stated, Walker had always resided and maintained his home in Breckenridge, Stephens county, where he exercises all the privileges of citizenship, voting, doing jury service, and...