Garrett's Estate v. Gay, 145

• Decision Date: 17 June 1965
• Docket Number: No. 145,145
• Citation: 392 S.W.2d 565
• Parties: The ESTATE of Norman M. GARRETT, Deceased, Appellant, v. Jack GAY, Appellee.
• Court: Texas Court of Appeals

Page 565

392 S.W.2d 565

The ESTATE of Norman M. GARRETT, Deceased, Appellant, v. Jack GAY, Appellee.

No. 145.

Court of Civil Appeals of Texas, Tyler.

June 17, 1965.

Rehearing Denied July 15, 1965.

W. C. McClain, McClain & Harrell, Conroe, for appellant.

Marvin Jones, Jones, Watkins & Gay, W. Newton Barnes, Dallas, for appellee.

DUNAGAN, Chief Justice.

Venue is the only issue in this appeal. The suit was filed in Dallas County by Jack Gay, against the defendant Bettye Byrd, individually and as executrix of the Estate of Norman M. Garrett, Deceased, to establish a money judgment against the estate, as against Bettye Byrd, individually. The Estate of Norman M. Garrett, Deceased, filed its plea of privilege to be sued in the County of Montgomery, where said estate is being administered. The court overruled the plea of privilege filed by the Estate of Norman M. Garrett, Deceased, to be sued in Montgomery County, the county of its residence, and apparently holding Subdivisions 4 and 29a of Article 1995 applicable.

This appeal lies from a judgment of the 101st Judicial District Court of Dallas County, Texas, overruling a plea of privilege filed by the Estate of Norman M. Garrett, Deceased, in the above cause. There are no findings of fact or conclusions of law filed by the court, and nothing is found in the record to disclose the basis of the court's ruling except one statement of the court contained in the order, reading:

'The stipulation of the parties having been submitted to the Court, together with the pleadings in the cause, and the Court being fully advised, and being of the opinion that the Plea of Privilege, as filed herein by the Defendant, Estate of Norman M. Garrett, Deceased, should be in all things overruled.'

Jack Gay filed suit in the District Court of Dallas County, Texas, against Bettye Byrd, individually and as executrix of the Estate of Norman M. Garrett, Deceased. Bettye Byrd is a resident of Dallas County and the Estate of Norman M. Garrett, Deceased, is a resident defendant of Montgomery County, Texas, where said estate is being administered. The only plea of privilege filed was a plea of the Estate of Norman M. Garrett, Deceased, alleging its right and privilege to be sued in Montgomery County, Texas.

Plaintiff alleged in his petition that heretofore, on or about the 15th day of August, 1961, plaintiff and defendant entered into an oral contract by the terms of which plaintiff would represent the defendant, Bettye Byrd, individually and as executrix of the Estate of Norman M. Garrett, Deceased, in all matters pertaining to said estate where defendant was interested or involved, either individually or as executrix of said estate, and agreed to pay plaintiff the reasonable and customary charges for the services to be rendered by the plaintiff under said contract.

The plaintiff further alleged that until on or about May 15, 1964, plaintiff performed such legal services as requested by the defendant and as were reasonable and necessary for her, individually and as executrix of said estate, and that the reasonable value and customary fee for such services so rendered by plaintiff was in the sum of $5,000.00. That defendant had failed to pay for said services and that written demand was duly made for the services, but the defendant had failed and refused to pay such fees or any part thereof.

The Estate of Norman M. Garrett, Deceased, contends that the venue as to it in this cause lies in Montgomery County, Texas, under and by virtue of Article 1995, Subsection 6, Vernon's Ann.Civ.St., which reads:

'Executors, administrators, etc.-If the suit is against an executor, administrator or guardian, as such, to establish a money demand against the estate which he represents, the suit may be brought in the county in which such estate is administered.'

The plaintiff seeks to maintain venue under Subsections 4 and 29a of Article 1995, V.A.C.S. in Dallas County, Texas.

The venue hearing was duly held and judgment entered by the trial court overruling the plea of privilege of the Estate of Norman M. Garrett, Deceased.

The appellant brings forward two Points of Error. First, contending that: 'The trial court erred in overruling defendant's plea of privilege for the reason that the plaintiff failed to prove a cause of action against the resident defendant, Bettye Byrd, as required by Subdivision 4 of Article 1995.'

This case was submitted to the trial court upon the stipulation of the parties, together with the pleadings in the case. Such stipulation of the parties and the pleadings constitute all the evidence adduced during said hearing. The stipulation of the parties was as follows:

(1) That Bettye Byrd, the defendant, is a resident of Dallas County, Texas; that

(2) Bettye Byrd is one of the executors of the Estate of Norman M. Garrett, Deceased; that

(3) She was a resident and an executor of the estate at all times pertinent to the plaintiff's cause of action; that

(4) The amount of the plaintiff's claim as sued for is within the jurisdiction of this court and is against Bettye Byrd and the estate; that

(5) The suit is a claim for services rendered by the plaintiff for the defendant, Bettye Byrd and the estate; and that

(6) No payment has been made for the services sued for.

Perhaps the leading case in Texas construing Section 4 of Article 1995 is Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300. Under the holding in that case, it is incumbent upon one...