Godwin v. Oliver, 5419.

• Decision Date: 01 December 1941
• Docket Number: No. 5419.,5419.
• Citation: 156 S.W.2d 992
• Parties: GODWIN v. OLIVER.
• Court: Texas Court of Appeals

156 S.W.2d 992

GODWIN v. OLIVER.

No. 5419.

Court of Civil Appeals of Texas. Amarillo.

December 1, 1941.

Appeal from District Court, Potter County; W. E. Gee, Judge.

Action by G. T. Oliver against L. B. Godwin to recover damages for breach of a rental contract and damages to plaintiff's land occasioned by the alleged wrongful acts of defendant, in which defendant filed a plea of privilege and plaintiff filed a controverting affidavit. From a judgment sustaining the plea of privilege but ordering the cause transferred to the district court of a different county from that prayed for by defendant, both parties appeal.

Reversed and rendered.

Underwood, Johnson, Dooley & Wilson, of Amarillo, for appellant.

H. H. Cooper, of Amarillo, for appellee.

STOKES, Justice.

Appellee, G. T. Oliver, filed this suit against appellant in a district court of Potter County August 5, 1941, seeking to recover damages for breach of a rental contract and damages to his land located in Deaf Smith County occasioned by the alleged wrongful acts of appellant. He alleged that appellant owned the section of land lying immediately south of one of the sections which he rented to appellant and that there was a public road between the two sections; that the road had borrow pits on each side and that appellant constructed embankments on the north side of his own section of land in such manner as to divert the natural flow of water and turn the same into the borrow pits of the road; that appellant failed and refused to open the borrow pits and all of the surplus water falling or flowing upon and over appellant's land was caused to flow upon appellee's section thereby causing large and deep gulleys to be washed in the same to his damage in the sum of $1,500.

The petition alleged, in substance, that appellee leased or rented to appellant a large body of agricultural land located in Deaf Smith County to be planted to wheat and that, although appellant's farming operations thereon were successful and the wheat would have produced some 35 bushels per acre, appellant failed and refused properly to harvest a large portion of the same thereby depriving appellee of more than 26,000 bushels to which he would have been entitled as rental under the lease contract to his damage in the sum of $26,588.20.

Appellant filed a plea of privilege in the form provided by Art. 2007, R.C.S., 1925, Vernon's Ann.Civ.St. art. 2007, alleging that he was not, at the time the suit was filed, nor at the time of the service of process thereon, nor at the time of filing the plea of privilege, a resident of Potter County, the county in which the suit was filed; that the county of his residence at all such times was Deaf Smith County, and that no exception to exclusive venue in the county of one's residence provided by law existed in the cause. He prayed for removal of the cause to the proper county as therein alleged.

Appellee filed a controverting affidavit in which he alleged that appellant was a resident of Potter County and that if he had established a residence in Deaf Smith County, it was only one of two residences maintained by him, one of which was in Potter County. He further alleged that appellant was a resident of the city of Amarillo which is located partly in Potter and partly in Randall County and that, if he be mistaken in his allegation that appellant was a resident of Potter County, then his residence was located just over the county line in Randall County and that appellant was, therefore, a resident of Randall County. He prayed that the plea of privilege be denied and in the alternative that the cause of action be transferred to the district court of Randall County.

A jury was impaneled to try the issues made upon the plea of privilege and controverting affidavit and after the evidence was introduced the court, being of the opinion that it failed to make an issue of fact for submission to the jury, upon his own motion discharged the jury and entered judgment sustaining the plea of privilege but ordering the cause transferred to the district court of Randall County instead of Deaf Smith County as prayed for by appellant. Both parties excepted to the judgment, gave notice of appeal and the case is now before this court for review upon the issues made and the order of the court sustaining the plea of privilege and transferring the cause to Randall County.

Both parties assign error of the court below, appellant contending that the cause should have been transferred to Deaf Smith County and appellee contending that it should not have been transferred at all, but that the plea of privilege should have been overruled. Various propositions are presented by both appellant and appellee but we think it will be necessary to discuss and pass upon only one of them, viz., appellant's contention that the suit being in part an action to recover damages to real estate located in Deaf Smith County, the plea of privilege should have been sustained and the cause transferred to the district court of that county.

It is pertinent to observe just here that the controverting affidavit filed by appellee is not sufficient in its allegations to raise any issue upon the case made by the plea of privilege. Nowhere in the affidavit is any kind of a cause of action alleged against appellant nor is the petition made a part thereof. Appellee alleges only that (a) appellant is estopped from claiming his privilege to be sued in any county other than Potter because, when the rental contract was entered into, he represented to appellee that Potter County was the county of his residence. (b) He challenges the truth of appellant's allegations concerning his residence in Deaf Smith County; (c) that appellant maintains his place of business as an attorney at law at Amarillo, in Potter County; (d) that, if he is not a resident of Potter County, then his residence is located in Randall County, and (e) that he resides partly in both Randall and Potter Counties. Thus it will be seen that no cause of action whatever is alleged in the affidavit and, since the petition is not made a part of it, appellee has not discharged the burden resting upon him of pleading the facts which will sustain the venue in the county where the suit is filed. Jefferies v. Dunklin et al., 131 Tex. 289, 115 S.W.2d 391; Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91; Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347.

Waiving that feature of it, however, and considering the case as though a proper controverting affidavit had been filed, the plea of privilege, being in the form provided by Art. 2007, R.C.S., 1925, although it referred only to the residence of the appellant, was sufficient, under the holdings of our Supreme Court, to entitle him to a removal of the case to Deaf Smith County under the provisions of Sec. 14 of Art. 1995, R.C.S., which provides an exception to exclusive venue where the suit is for damages to land. In the case of Shell Petroleum Corp. v. Grays, 122 Tex. 491, 62 S.W.2d 113, the Supreme Court held that, when the venue and personal privilege statutes are properly construed as a whole, they are intended to cover all pleas of privilege or venue to be sued in the county where the venue is provided by the various provisions of Art. 1995 and Art. 2390, R.C.S., or any other county of venue provided by law. In adhering to that holding in the later case of Jefferies v. Dunklin, supra [131 Tex. 289, 115 S.W. 2d 393], the Supreme Court said:

"The effect of our ruling, as contained in the opinion in the Shell Petroleum Corporation case, as indicated by the above...