Johnson v. Dallas Cooperage & Woodenware Co.

• Decision Date: 04 February 1931
• Docket Number: No. 1221-5584.,1221-5584.
• Citation: 34 S.W.2d 845
• Parties: JOHNSON v. DALLAS COOPERAGE & WOODENWARE CO.
• Court: Texas Supreme Court

34 S.W.2d 845

JOHNSON v. DALLAS COOPERAGE & WOODENWARE CO.

No. 1221-5584.

Commission of Appeals of Texas, Section B.

February 4, 1931.

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

Suit by the Dallas Cooperage & Woodenware Company against S. N. Johnson. A plea of privilege to be sued in the county of his residence was overruled, and defendant appealed to the Court of Civil Appeals, which certified questions to the Supreme Court.

Questions answered, and ordered certified.

Hamilton, Frank & Hamilton, D. A. Frank, and Phelps & Phelps, all of Dallas, for appellant.

Burgess, Burgess, Chrestman & Brundidge and H. A. Bateman, all of Dallas, for appellee.

SHORT, P. J.

The following statement and certified questions are from the Court of Civil Appeals of the Tenth District:

"This suit was instituted by Dallas Cooperage & Wooden Ware Company, a corporation, whose domicile and principal place of business is in Dallas County, Texas, against S. N. Johnson, whose domicile and residence is in Webb County. Appellee's suit was founded upon three separate trade acceptances which it had drawn on the partnership of Johnson & Derby, and which partnership, appellee alleged, was composed of S. N. Johnson and G. W. Derby. The trade acceptances were each accepted by Johnson & Derby, per G. W. Derby, and provided that the amount thereof would be paid in Dallas County. Appellee alleged that G. W. Derby was dead and the suit was filed against S. N. Johnson as the surviving member of the partnership and in his individual capacity. Appellant Johnson filed his plea of privilege in statutory form, alleging his residence to be in Webb County, and alleged that `no exception to exclusive venue in the county of one's residence, provided by law, exists in said cause.' Appellee filed a controverting affidavit, in which it alleged that the district court of Dallas County had jurisdiction under and by virtue of subdivision 5 of article 1995 of the Revised Statutes, since the trade acceptances sued upon were payable in Dallas County, Texas, and made the original petition a part of the controverting affidavit, and by said affidavit swore that all the facts contained in the original petition were true. Appellant Johnson filed no additional answer to the controverting plea filed by appellee, but relied entirely on his plea of privilege. The plea of privilege was heard by the trial court and judgment entered overruling the same. It is from said judgment this appeal is perfected.

"On the hearing of the plea of privilege appellee was permitted to offer in evidence the trade acceptances sued on, over appellant's objection that no proof had been offered of their having been signed by Johnson & Derby, per G. W. Derby, or that appellant S. N. Johnson was a member of the partnership of Johnson & Derby, apparently on the theory that appellant had not denied under oath the execution of said trade acceptances or the existence of said partnership as alleged and sworn to by appellee in its petition and controverting affidavit. After said trade acceptances were offered in evidence, appellant then offered to prove by himself and another witness that he, appellant, was not at any time in partnership with G. W. Derby and that he had no connection with G. W. Derby in any capacity, and that G. W. Derby was not authorized to sign appellant's name to said trade acceptances either as a member of the partnership or otherwise. This testimony was excluded by the trial court on the sole ground, as shown by the bills of exception, that said testimony was not admissible on the trial of the plea of privilege but could only be offered and considered on the trial of the main case.

"The opinion of this court being final in this class of cases, and there being some doubt in our minds as to the correctness of the holding of the trial court, we have deemed it advisable to and we do hereby respectfully submit to the Honorable Supreme Court of this state for its determination upon the facts hereinbefore set out, the following questions:

"First Question: Is the sworn plea of privilege a sufficient denial under oath, under articles 2008, 2010 and 3734 of the Revised Statutes, to require the plaintiff to prove the execution of the trade acceptances sued on, and to require it to prove that appellee S. N. Johnson was a partner with G. W. Derby, before same could be offered in evidence?

"Second Question: Were said trade acceptances properly admitted in evidence in this case, over the objection that their execution had not been proved and that it had not been shown that S. N. Johnson and G. W. Derby were partners?

"Third Question: After the trade acceptances had been admitted in evidence, did the trial court commit error in refusing to permit appellant to offer testimony tending to show that he was not a partner with G. W. Derby and had no connection with G. W. Derby, and did not authorize G. W. Derby to sign the trade acceptances either as a partnership matter or in any capacity which would bind the appellant Johnson?

"Fourth Question: Where a plea of privilege and a controverting affidavit thereto have been filed, and on hearing thereof the plaintiff makes a prima facie case showing the suit has been brought in the proper county, has the defendant the right to offer testimony showing that the court does not have jurisdiction, and that the testimony of the plaintiff is untrue?"

The sworn plea of privilege in this case, according to the certificate, establishes prima facie that the original defendant, the appellant in the Court of Civil Appeals, under article 1995, subd. 5, of the Revised Statutes, was entitled to be sued by the plaintiff, the appellee in the Court of Civil Appeals, upon the alleged cause of action, in a court of competent jurisdiction in Webb county. Article 2007 of the Revised Statutes provides a plain path for a defendant to follow, who seeks to have a suit brought against himself in a county other than that of his residence, to be removed to the county of his residence. When the provisions of article 2007 have been complied with by a defendant, in the absence of a controverting affidavit, for which the article also provides, being filed by a plaintiff, it is the duty of the court to make the order transferring the suit to a court having jurisdiction of the subject-matter in the county where the defendant resides.

When the controverting affidavit was filed, mentioned in the certificate, the only issue of fact presented by the pleadings was whether S. N. Johnson, at the time he filed his plea of privilege, as well as at the time the suit was brought, and at the time he was served with process, resided in Webb county, and that at such times he had not contracted in writing to perform the alleged obligation in Dallas county. Upon this issue the burden of proof rested upon the original plaintiff, since it was the duty of the trial judge to assume the truth of the material allegations made in the plea of privilege, until this assumption had been overturned by competent evidence on this sole issue introduced in support of the...