Golasinski v. Warren Refrigerator Co.

• Court: Texas Civil Court of Appeals
• Writing for the Court: GRAVES
• Citation: Golasinski v. Warren Refrigerator Co., 226 S.W.2d 220 (Tex. Ct. App. 1949)
• Decision Date: 17 November 1949
• Docket Number: No. 12139,12139
• Parties: GOLASINSKI v. WARREN REFRIGERATOR CO. Inc.

Page 220

226 S.W.2d 220

GOLASINSKI v. WARREN REFRIGERATOR CO. Inc.

No. 12139.

Court of Civil Appeals of Texas, Galveston.

Nov. 17, 1949.

Rehearing Denied Jan. 12, 1950.

Graves & Finger, of Houston, for appellant.

Elledge & Elledge, of Houston, and W. O. Bowers, Jr., of Beaumont, for appellee.

GRAVES, Justice.

This much of appellant's general statement, deemed to be substantially correct, after examination of the supporting record, is thus quoted:

This is an appeal from a judgment sustaining appellee's plea-of-privilege. Appellant brought this suit against appellee in the 61st District Court of Harris County, alleging, in substance, that at all pertinent times appellant was a resident of Harris County, Texas, and that appellee was a Texas corporation having an agency and representative in Harris County; that, on or about July 13, 1948, appellee sold certain refrigeration equipment, including a fish-case, to D. H. Ferguson and M. Miller, a portion of the purchase-price being evidenced by an installment-contract and note, and secured by a chattel mortgage on the equipment; that in November, 1948, appellant bought the interest of Ferguson in such equipment, and executed a new chattel-mortgage jointly with M. Miller; that the new chattel-mortgage contract erroneously failed to reflect payments made on the old chattel-mortgage contract; that, on or about January 6, 1949, appellant bought the interest of M. Miller in such equipment; that all of the foregoing transactions occurred in Harris County; that on or about February 8, 1949, appellant entered into a contract with appellee in Harris County, whereby appellee agreed to accept the sum of $451.46 and the return of the fish-case, in full payment and discharge of appellant's obligation to appellee, and agreed to cancel the chattel-mortgages; that appellant paid the $451.46, pursuant to the agreement, but that appellee afterward sought to repudiate its agreement, refused to pick up the fish-case, and refused to release the chattel-mortgages, and threatened to foreclose thereon, and wrongfully asserted that appellant was still indebted to it on account of such chattel-mortgage contract. In such suit appellant prayed for a judgment decreeing cancellation of the chattel-mortgages, declaring that the chattel-mortgage obligation had been paid and cancelled, and for damages, etc.

Appellee filed its plea-of-privilege, alleging that Jefferson County, Texas, was and is its principal place of business. Appellant filed his controverting-plea, alleging that the action was properly brought in Harris County, first, because appellee was a private corporation, appellant resided in Harris County at the time the cause-of-action, or part thereof, arose, and appellee had an agency or representative in Harris County, and, second, because appellee was a private corporation, and the cause-of-action, or part thereof, arose in Harris County.

The plea-of-privilege was heard by the Court, Hon. Ben Moorhead presiding, and judgment was rendered sustaining the plea, and ordering that the cause be transferred to the District Court of Jefferson County, Texas, from which order this appeal has been taken.

Since the appeal is solely from the order sustaining the plea-of-privilege, under well-settled principles of procedure and decision, there is nothing involved here, except whether or not the issue of venue for the suit was properly disposed of below, no question of liability on the merits of the suit being material; Whitehead v. City Nat. Bank of Wichita Falls, Tex.Civ.App., 140 S.W.2d 967; Saladiner v. Polanco, Tex.Civ.App., 160 S.W.2d 537, error refused.

Not only so, but the reaches of the appeal have further been likewise circumscribed so as to leave only the venue-facts as being material, just as they were joined between the parties in the trial court by the plea-of-privilege of appellee, on the one hand, and of the controverting-affidavit thereto of appellant, on the other. Whitehead v. City, etc., supra.

In the setting thus outlined, the appellant presents to this court two points-of-error, in substance as follows:

'One: The Court erred in sustaining the plea of privilege, because appellant properly plead and proved that this is a suit against a private corporation, that appellant resided in Harris County, Texas, at the time the cause-of-action, or part thereof, arose, and that appellee has and has had at all pertinent times an agency and representative in Harris County; that, therefore, this action was properly brought in Harris County, under the provisions of Subdivision 23, of Art. 1995, VATS.

'Two: The Court erred in sustaining the plea-of-privilege, because appellant properly plead and proved that this is a suit against a private corporation, and that all, or a part of, the cause-of-action, arose in Harris County, and that, therefore, this suit was properly brought in Harris County, under the provisions of such Subdivision 23.'

The appellee's counter-points thereto are these:

'1. The appellant had no cause-of-action, but only has a possible defense against suit brought by the appellee.

'2. Under Subdivision 5, of Article 1995, the appellee had the right to have this suit filed and tried in Jefferson County.

'3. Appellant filed this suit for the express purpose of attempting to fraudulently fix venue upon the district court of Harris County.'

In the given state of the record, under the amended statute involved, that is, Subdivision 23, Article 1995, VATS, it seems clear that the only venue-facts the appellant was required to plead and prove were at most, in substance, as follows:

1. That this was an action against a private corporation;

2. That appellee had an agency, or representative, in Harris County;

3. That appellant resided in Harris County at the...