Hearn v. Frazier
| Decision Date | 17 March 1950 |
| Docket Number | No. 2791,2791 |
| Citation | 228 S.W.2d 582 |
| Parties | HEARN v. FRAZIER. |
| Court | Texas Court of Appeals |
Blanton & Blanton, Albany, for appellant.
Wagstaff, Harwell, Wagstaff & Alvis, Abliene, for appellee.
This is a venue case. The parties will carry the same designation as in the trial court. Plaintiff, J. S. Hearn, Jr., sued A. E. Frazier for a one-half interest in a spudder and oil well drilling machinery located in Shackelford County and for $1,860.00 alleged to be due him for labor performed in drilling six oil wells in said county and to foreclose a mechanic's lien upon such oil well machinery. Defendant filed his plea of privilege to be sued in Taylor County where he lived. Plaintiff controverted such plea and sought to hold venue in Shackelford County under Exceptions 10 and 12 to Article 1995, R.C.S. Upon a hearing, the court sustained the plea of privilege and ordered the case transferred to Taylor County. From this order plaintiff has appealed.
We believe the suit was properly maintainable in Shackelford County under Exception 10 of the venue statute. The pleadings, when construed as a whole, disclose that plaintiff's suit was for the recovery of personal property situated in Shackelford County. The proof conclusively shows the property was located in such county.
Defendant contends that plaintiff's petition shows on its face that Hearn and Frazier were partners and that a partner cannot have a lien against partnership property for services rendered to the partnership. We agree with this contention and hold that under the pleadings and evidence plaintiff had no lien upon the property involved and hence venue could not be sustained in Shackelford County under Exception 12. To maintain venue under this Exception, plaintiff must show he has a valid lien upon property situated in Shackelford County. Defendant further contends that one partner cannot sue the other for interest in partnership property and that his remedy would be for dissolution of the partnership and accounting. This goes to the merits of the case. A hearing upon issues made by the filing of a plea of privilege and controverting affidavit is limited to a trial of the question of venue and not of the merits of the case. Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300; Uvalde Construction Co. v. Waggoner, Tex.Civ.App., 159 S.W.2d 203; Bradley v. Trinity State Bank, 118 Tex. 274, 14 S.W.2d 810; Salisbury v. Taylor, Tex.Civ.App., 5 S.W.2d 874.
It is true plaintiff alleged and the proof shows that plaintiff and defendant entered into a partnership agreement. Defendant bought a spudder and oil well drilling machinery which cost $3,500.00. It was agreed between the parties that Hearn was to have charge of the drilling of wells for oil and gas on a contract basis and that when the partnership had made enough money to reimburse Frazier for the money expended for the spudder, that Hearn was to have one-half interest in the spudder and one-half interest in all profits made by the partnership. Plaintiff further alleged that he drilled six wells and that the partnership made enough money to pay for the spudder and in addition thereto, the sum of approximately $200.00.
There is a distinction between a trial upon a plea of privilege and a trial upon the merits of a case. The hearing on a plea of privilege is held to determine...
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