Howell v. Loftis, 6655

• Decision Date: 25 February 1957
• Docket Number: No. 6655,6655
• Parties: Grover HOWELL, Appellant, v. R. I. LOFTIS, Appellee.
• Court: Texas Court of Appeals

Page 954

299 S.W.2d 954

Grover HOWELL, Appellant, v. R. I. LOFTIS, Appellee.

No. 6655.

Court of Civil Appeals of Texas, Amarillo.

Feb. 25, 1957.

R. A. Miller, Dallas, for appellant.

No attorney appearing for the appellee.

CHAPMAN, Justice.

This is an appeal from a judgment rendered for R. I. Loftis, appellee, against Grover Howell, appellant, for $244.77.

The case is before us without oral argument and without a brief on behalf of appellee.

The courts have interpreted Rule 419, Texas Rules of Civil Procedure, to mean that where appellee filed no brief and did not avail himself of oral argument, Court of Civil Appeals must assume as true all facts stated by appellants in their brief and render judgment in conformity therewith. Doherty v. Hensen, Tex.Civ.App., 174 S.W.2d 77, reversed in part on other grounds, Pearson v. Doherty, 143 Tex. 64, 183 S.W.2d 453; Beyersdorff v. Spiller, Tex.Civ.App., 224 S.W.2d 272.

It has also been held, in construing said rule, that where appellants complained by proper points of order overruling their plea of privilege to be sued in another county, and their brief contained statements pertaining to the support of such points, which were unchallenged by appellee, who did not file a brief, appellate court would accept such statements as correct, without resort to the statement of facts or the record. Van Pelt v. McCabe, Tex.Civ.App., 236 S.W.2d 685; Leavell v. Lincoln County Mutual Fire Ins. Co., Tex.Civ.App., 243 S.W.2d 223.

A jury having been waived by both parties appellant's attorney made a motion in open court that appellant's Plea of Privilege be in all things sustained. Said motion was overruled by the court, and following said attorney's exception, the Court heard the Plea of Privilege and tried the case on its merits at the same time. At the close of the testimony appellant renewed and restated his motion that said Plea of Privilege be sustained and that appellant have judgment. Both of said motions were overruled by the court and judgment rendered for appellee on the merits of the case.

The last line of Rule 87, T.R.C.P. says, 'If the defendant demands a trial by jury on the venue question, the court, in its discretion, may require the cause to be tried on its merits at the same time.'

The record before us not only fails to show a jury demand but on the contrary shows that both parties waived a trial by jury.

It is the settled law in this state that only venue issues, and not matters going to the merits of a case, can be determined at a venue hearing. Shaver v. Hughes, Tex.Civ.App., 214 S.W.2d 176.

From the record before us, it follows that the court below was without authority to try the case on its merits. Therefore, this court will consider the trial below only as it had to do with the venue question, and the evidence offered on the merits will be considered only as it had to do with the matters pertaining to venue.

On April 9, 1956, appellee sued appellant for the sum above stated on an itemized sworn account on an open account for groceries purchased during the year 1953, the last purchase having been made on July 3, 1953. Service was had on appellant in Tarrant County, Texas, the place of his residence and domicile at said time.

Within the legal period appellant answered, raising, among other things, the two years statute of limitation. Appellee thereafter filed his First Amended Original Petition alleging what amounted to a new cause of action on a subsequent new promise to pay. Sharp v. Frizzell, Tex.Civ.App., 153 S.W.2d 543. Appellant then filed his plea of privilege to be sued in the county of his residence. Appellee, in controverting appellant's plea of privilege, incorporated therein his original petition and the itemized open account contained therein. He failed to include and incorporate in his controverting affidavit his new cause of action, as alleged in his First Amended Original Petition.

Appellee testified each item was supposed to be paid for before the tenth of the next month following its purchase. The last purchase having been made on July 3, 1953, limitation on the last purchase would have started running August 11, 1953.

Under the record before us, for appellee to retain venue in Cottle County on his Controverting Affidavit to appellant's Plea of Privilege the 'sales slips,' or 'sales receipts' introduced in evidence would have had to be so worded as to constitute contracts in...