Johnson v. First Nat. Bank of Brenham, 1136.
| Decision Date | 15 October 1931 |
| Docket Number | No. 1137.,No. 1136.,1136.,1137. |
| Citation | 42 S.W.2d 870 |
| Parties | JOHNSON v. FIRST NAT. BANK OF BRENHAM. SAME v. DUBLIN MILL & ELEVATOR CO. |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; Claude M. McCallum, Judge.
Action by H. J. Johnson against the First National Bank of Brenham, the Dublin Mill & Elevator Company, and others. From a judgment sustaining the pleas of privilege of the defendants named, plaintiff appeals.
Affirmed.
Clark & Clark, of Dallas, for appellant.
Crane & Crane and Parker V. Lucas, all of Dallas, and Searcy & Hodde, of Brenham, for appellees.
This appeal challenges the correctness of the ruling of the trial court on the pleas of privilege filed by the defendants. H. J. Johnson filed suit in the district court of Dallas county against A. F. Manhart and wife, Anna B. Manhart, to recover on two promissory notes alleged to have been executed by said defendants and payable to the plaintiff in Dallas county, and to foreclose a chattel mortgage on certain personal property. The plaintiff joined the First National Bank of Brenham, a corporation, with its domicile in Washington county, and the Dublin Mill & Elevator Company, a corporation, with its domicile in Erath county, as defendants in said suit, alleging that each of them was claiming some interest in the personal property described in the chattel mortgage. The defendants First National Bank of Brenham and the Dublin Mill & Elevator Company each in due time filed a separate plea of privilege to be sued in the county of its domicile. The plaintiff wholly failed to controvert either of the pleas of privilege. Neither the defendant Manhart nor his wife filed a plea of privilege. The trial court, after the expiration of the time allowed by law for filing a controverting affidavit, sustained the plea of privilege of the defendant bank, and transferred the suit as to said defendant to Washington county, and sustained the plea of privilege as to the defendant Mill & Elevator Company, and transferred the suit as to said defendant to the district court of Erath county, and retained jurisdiction over the suit by the plaintiff against Manhart and wife. The plaintiff filed separate appeals as to the defendants Mill & Elevator Company and as to the bank. By agreed motion, the cases were consolidated on appeal.
The plea of privilege as filed by the bank and by the mill were each in the usual statutory form, and contained the statutory allegation "that no exception to exclusive venue in the county of one's residence provided by law, exists in said cause." It was appellant's contention that the above-quoted allegation was a mere conclusion of the pleader, and that by reason thereof the pleas of privilege were insufficient. The above allegation on the part of the defendants was clearly a conclusion of the pleader, and in the ordinary pleading would not be sufficient. However, in regard to the form of the pleas of privilege, the Legislature has provided that such an allegation is not only permissible, but that it is sufficient. Revised Statutes, art. 2007. Since the Legislature has provided that such an allegation is sufficient, the courts have no authority to hold otherwise. Murphy v. Dabney (Tex. Civ. App.) 208 S. W. 981; First National Bank of Rhome v. Cage (Tex. Civ. App.) 32 S.W.(2d) 500, par. 4; Oakland Motor Car Co. v. Jones (Tex. Civ. App.) 29 S.W.(2d) 861, par. 11.
The appellant complains of the action of the court in splitting up the...
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