Haney v. Henry, 6717
| Decision Date | 25 November 1957 |
| Docket Number | No. 6717,6717 |
| Citation | 307 S.W.2d 649 |
| Parties | James (Jay) L. HANEY et al., Appellants, v. J. Leon HENRY, Appellee. |
| Court | Texas Court of Appeals |
Bradbury, Tippen & Brown, Sayles & Sayles, Grisham & Jeffrey, Abilene, for appellants.
Treadaway & Blumrosen, Lubbock, for appellee.
J. Leon Henry d/b/a Henry Electric of Lubbock County, Texas, filed suit in said county against James (Jay) L. Haney, whose residence was alleged to be in the same county; Jack Boles of Taylor County, Texas; Big State Baseball League, an Incorporated Association authorized to do business in Texas, whose president is Hal Sayles of Abilene, Taylor County, Texas; and P. B. Odon Construction Company, a corporation, whose president is P. B. Odom Jr. of Oklahoma City, Oklahoma.
James (Jay) L. Haney, Jack Boles, and Big State Baseball League, in due time, filed their pleas of privilege, Haney alleging his residence to be Dallas, Dallas County, Texas, and Boles and Big State Baseball League through its president Hal Sayles, alleging their residence to be Abilene, Taylor County, Texas. Defendant P. B. Odom Construction Company did not file a plea of privilege.
Appellee alleged his cause of action upon a verified, itemized statement of account for labor performed and various items of goods, wares and merchandise which 'were of the agreed and reasonable value of the amount set forth;' that at the beginning of the 1956 baseball season Haney was the owner and/or operator of the Lubbock Baseball Club, leasing the property known as Odom Park, on which Haney as owner and operator of said club contracted for the materials and services for the benefit and improvement of the baseball park; that the said baseball club was a member of the Big State Baseball League and had as its home field Odom Park in Lubbock, Texas; that about July 1, 1956, 'in some manner unknown to this plaintiff and unknown to anyone within this plaintiff's knowledge except the defendants, James (Jay) L. Haney, Jack Boles and Hal Sayles, president of Big State Baseball League, the Lubbock Baseball Club moved all its assets from Lubbock, Texas, to Texas City, Texas; that it was announced to the public that James (Jay) L. Haney was no longer the owner and/or operator of the baseball club but that Jack Boles was the new onwer and/or operator of the same.
'That this change and/or ownership of the Lubbock Baseball Club (including all assets) was done with the knowledge and consent of the Big State Baseball League and more especially Hal Sayles, its president.
'That by taking all of the assets of the Lubbock Baseball Club and moving the same to Texas City, Texas, thereby deriving and reaping all of the benefits from said baseball club the defendants, Jack Boles, and Big State Baseball League either and/or impliedly assumed all of the debts and obligations of James (Jay) L. Haney d/b/a Lubbock Baseball Club, and thereby became bound to pay this plaintiff the sum of $480.03.' Appellee further alleged demand and nonpayment and in the alternative allegations for a statutory and constitutional lien on the real property known as Odom Park.
Appellee filed, in due time, a controverting affidavit to each plea of privilege and alleged Lubbock County as the place of venue for this action under both Exceptions 4 and 29a of Art. 1995 Vernon's Ann.Tex.St. None of the pleas of privilege denied under oath that the account constituting the basis of appellee's action and supported by his affidavit was not just.
The hearing on the pleas of privilege were tried to the court and from the court's judgment overruling all of them appellants have perfected their appeal to this court.
A plaintiff who wishes to maintain venue under Subdivision 4 must first prove that one defendant resides in the county where he is attempting to hold venue and that he has a cause of action against said defendant. Certainly the law is clear as to this burden on the part of appellee. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300. Since Subdivision 4 is one of the exceptions of Art. 1995 relied on by appellee and since Haney was the only defendant whose residence was alleged to be in Lubbock County, we must first look to the questios of whether appellee discharged the burden of showing a cause of action against Haney and that his residence was in Lubbock County.
Under the pleadings above outlined we hold they alleged a cause of action against Haney. The next question then presents itself as to whether that cause of action was proved. Appellee offered in evidence and the court admitted his sworn petition and verified, itemized account, all defendant's answers and all pleas of privilege. Big State Baseball League objected for the alleged reason that they were not the best evidence and not sufficient to prove any fact necessary to venue. Boles made the same objection and Haney objected only to the introduction of his original answer for the reason that it would have no place in the case as long as the plea of privilege is before the court. The record before us shows no objections by Haney to the introduction of any of the instruments above named except his original answer. Under this state of the record there could be no question but that all instruments were properly before the court as evidence against Haney without objection except as to his original answer. It is our opinion that the court was correct in admitting all the instruments over the particular objection made by all parties. Since we have already said the pleadings alleged a cause of action against Haney it naturally follows that with the pleadings in evidence the burden of proving the case against him was established unless there was something in the pleas of privilege and answers of defendants to rebut said pleadings. The pleas of privilege were regular statutory pleas and were not sufficient to constitute a denial under oath of any allegations of plaintiff's petition required to be denied under oath by Rule 93. Additionally, none of the answers of defendants included any denials under oath.
Under Sudivision 4 'the plaintiff establishes his right to maintain venue where laid, by alleging a joint cause of action against the two defendants, or a cause of action against the resident defendant so intimately connected with the cause of action alleged against the nonresident defendant that the two may be joined under the rule...
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