Hays v. McKemie

Decision Date03 January 1945
Docket NumberNo. 9490.,9490.
Citation185 S.W.2d 484
PartiesHAYS v. McKEMIE et al.
CourtTexas Court of Appeals

Appeal from District Court, Milam County; O. L. Kidd, Judge.

Trespass to try title and for damages by W. H. McKemie and another against Elmer H. Hays. From a judgment overruling the defendant's plea of privilege, the defendant appeals.

Judgment affirmed.

J. B. Talley, of Temple, and E. A. Camp, of Rockdale, for appellant.

Wallace & Wallace, of Cameron, for appellees.

BAUGH, Justice.

The appeal is from an interlocutory order of the trial court overruling appellant's plea of privilege to be sued in the county of his residence.

Both appellant and appellees reside in Bell County. The appellees sued appellant in trespass to try title, and for damages, to land situated in Milam County. Their petition in all respects complied with the provisions of Rule 783, Texas Rules of Civil Procedure, and contained the endorsement, "This action is brought as well to try title and for damages." The appellant filed his plea of privilege to be sued in Bell County where he resided. This plea was in usual stereotype form, containing the allegations required in Rule 86, Texas Rules of Civil Procedure. It was duly controverted by appellees, wherein they set up the nature of their cause of action as being in trespass to try title, adopted by reference the fact allegations of their petition, alleged that the land involved was situated in Milam County; and that the venue was laid under Subdivision 14 of Art. 1995, R. C.S. Thereafter, by amended plea of privilege, the appellant alleged that neither the plaintiffs nor the defendant were at the time the suit was filed, nor subsequent thereto, owners of a determinable fee-simple title to said land, nor in possession of said real estate. Upon the hearing of the plea of privilege, the plaintiffs introduced in evidence the controverting affidavit, the endorsement on their petition, the endorsement on the controverting affidavit, lis pendens notice filed in Milam County, and agreement of counsel that the land was situated in Milam County.

The sole contention made by the appellant herein is that such proof did not meet the burden cast upon them by the plea of privilege. This contention is not sustained.

Appellant cites and relies upon cases wherein partition suits filed under the provisions of Art. 6082 and under Subdivision 13 of Art. 1995, R.C.S. were involved, as laying down the burden of proof cast upon such plaintiffs as against a plea of privilege. See Pena v. Sling, 135 Tex. 200, 140 S.W.2d 441, 128 A.L.R. 1223; Goolsby v. Bond, C. J., 138 Tex. 485, 163 S.W.2d 830; and Herrington v. McDonald, 141 Tex. 441, 174 S.W.2d 307. Those cases, however, do not involve the question raised herein. They merely hold that suits filed as partition suits under Subdivision 13 of Art. 1995, if they involve a disputed issue of title to such land, are governed by Subdivision 14 instead of Subdivision 13, in so far as the title issue is concerned, and must be tried in the county where the land is...

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4 cases
  • Magnolia Petroleum Co. v. State
    • United States
    • Texas Court of Appeals
    • 7 d3 Novembro d3 1945
    ...such a suit was a mere conclusion of law, and not an allegation of fact." See also in this connection the recent case of Hays v. McKemie, Tex.Civ.App., 185 S.W.2d 484. Quite a number of cases have been brought by the State in Travis County under these articles, since their adoption twelve y......
  • Ridge at Red Hawk, L.L.C. v. Schneider
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 9 d1 Julho d1 2007
    ...of the suit is determinable solely by the allegations contained in the [complaint]." Aplt. Br. at 9 (quoting Hays v. McKemie, 185 S.W.2d 484, 485 (Tex.Civ.App.1945)) (internal quotation marks omitted). However, the arbitration award, which was attached to the First Amended Complaint as an e......
  • Campbell v. Burford Oil Co., 6263.
    • United States
    • Texas Court of Appeals
    • 14 d5 Fevereiro d5 1947
    ...such fact does not change the nature of the suit, evident in its pleadings, from an action to remove cloud from title. Hays v. McKemie et al., Tex.Civ.App., 185 S.W.2d 484. "Where the particular character of the suit (as here) constitutes a factor in determining the question of venue, the c......
  • Alston v. Harmon
    • United States
    • Texas Court of Appeals
    • 16 d4 Julho d4 1953
    ...such fact does not change the nature of the suit, evident in its pleadings, from an action to remove cloud from title. Hays v. McKemie, Tex.Civ.App., 185 S.W.2d 484.' Without further discussion, the trial court's judgment so sustaining the appellaees' plea of privilege will be reversed, and......

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