Grayburg Oil Co. v. Powell

• Decision Date: 03 April 1929
• Docket Number: (No. 1232-5259.)
• Citation: 15 S.W.2d 542
• Parties: GRAYBURG OIL CO. v. POWELL.
• Court: Texas Supreme Court

Page 542

15 S.W.2d 542

GRAYBURG OIL CO. v. POWELL.

(No. 1232-5259.)

Commission of Appeals of Texas, Section A.

April 3, 1929.

Certified Questions from Court of Civil Appeals of Tenth Supreme Judicial District.

Suit by N. P. Powell against the Grayburg Oil Company. To review a judgment overruling defendant's plea of privilege, defendant appeals. On certified questions from the Court of Civil Appeals. Questions answered.

Victor Keller, of San Antonio, for appellant.

W. W. Mason, of Mexia, for appellee.

CRITZ, J.

This is a certified question from the Court of Civil Appeals for the Tenth District at Waco. The certificate shows that N. P. Powell instituted the suit in the district court of Limestone county, Tex., against Grayburg Oil Company, a domestic corporation, to recover a debt which Powell claimed the Grayburg Oil Company owed him. The principal office and place of business of the oil company is in San Antonio, in Bexar county, Tex. The oil company filed a plea of privilege contending that none of the exceptions to exclusive venue in the county of its residence existed, and asked that the cause be transferred from the county court of Limestone county to Bexar county.

Powell seeks to hold jurisdiction in Limestone county under subdivision 23 of article 1995, R. C. S. of Texas 1925, which provides that a suit against a private corporation may be brought in any county in which the cause of action or a part thereof arose. The trial court overruled the plea of privilege filed by the oil company, from which order and judgment the oil company appealed to the Court of Civil Appeals at Waco, and this cause is now pending in that court.

In two recent decisions by the Court of Civil Appeals for the Third District at Austin, Dublin Mill & Elevator Co. v. Cornelius, 5 S.W.(2d) 1027, and Houston Lighting & Power Co. v. Jenkins, 5 S.W.(2d) 1030, that court held that part of subdivision 23 of article 1995, R. C. S. 1925, which provides that a suit against a private corporation may be brought in any county in which the cause of action or a part thereof arose, unconstitutional, and in the last of the above-named cases said Court of Civil Appeals for the Third District held that the trial court's overruling a plea of privilege, when it appeared plaintiff was seeking to hold venue only by virtue of said above mentioned part of subdivision 23, presented fundamental error apparent of record.

On account of the importance of the question, the Court of Civil Appeals at Waco has certified in the case at bar the following questions to this court:

"First: Is subdivision 23 of article 1995 of the Revised Statutes of 1925, which authorizes the filing of a suit against a corporation in any county in which the cause of action, or a part thereof, arose, unconstitutional?

"Second: If the first question above is answered in the affirmative, then if the record shows that the plaintiff in the trial court, by its controverting affidavit, sought to maintain venue alone by virtue of said subdivision of said statute, and the trial court overruled the plea of privilege, does the ruling of the court present such fundamental error apparent of record as would require the Court of Civil Appeals to take cognizance thereof?"

Article 1995, R. C. S. of Texas 1925, provides:

"No person who is an inhabitant of this state shall be sued out of the county in which he has his domicile except in the following cases: * * *

"23. Corporations and Associations. — Suits against a private corporation, association or joint stock company may be brought in any county in which the cause of action, or a part thereof, arose, or in which such corporation, association or company has an agency or representative, or in which its principal office is situated. Suits against a railroad corporation, or against any assignee, trustee or receiver operating its railway, may also be brought in any county through or into which the railroad of such corporation extends or is operated. Suits against receivers of persons and corporations may also be brought as otherwise provided by law."

The part of said subdivision involved in the certified questions is that part of same reading as follows: "Suits against a private corporation, * * * may be brought in any county in which the cause of action, or a part thereof, arose. * * *"

In Dublin Mill & Elevator Co. v. Cornelius, supra, and in Houston Lighting & Power Co. v. Jenkins, supra, the Court of Civil Appeals for the Third District held, as above shown, that the part of subdivision 23 of article 1995 which authorizes the filing of a suit against a corporation in any county in which the cause of action or a part arose is unconstitutional and void under the Fourteenth Amendment to the Constitution of the United States, and based their decision on an opinion rendered by the Supreme Court of the United States in the case of Power Manufacturing Co. v. Harvey Saunders, 274...