Knox v. Cunningham

• Decision Date: 09 December 1920
• Docket Number: (No. 626.)
• Citation: 226 S.W. 461
• Parties: KNOX v. CUNNINGHAM.
• Court: Texas Court of Appeals

226 S.W. 461

KNOX v. CUNNINGHAM.

(No. 626.)

Court of Civil Appeals of Texas. Beaumont.

December 9, 1920.

Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.

Suit by C. A. Cunningham against Hiram Knox. From a judgment overruling defendant's plea of privilege, he appeals. Affirmed.

Montooth & Collins, of Lufkin, and S. M. Adams, of Nacogdoches, for appellant.

V. E. Middlebrook, of Nacogdoches, for appellee.

WALKER, J.

C. A. Cunningham filed suit in the district court of Nacogdoches county against Hiram Knox for damages, alleging that Knox had willfully and maliciously instituted criminal proceedings against him in Nacogdoches county on the charge of forgery, and that on these charges he was imprisoned in the county jail of that county. Appellant answered by plea of privilege, duly verified, praying that this cause be transferred to Sabine county, where he resided. In addition to the statutory allegations, he further pleaded:

"That this is an action for damages for libel and slander, and that actions in such cases can only be maintained in the county in which the plaintiff in such action resided at the time of the accrual of the cause of action, or in the county where the plaintiff resided at the time of the filing of suit, or in the county of the residence of the defendant, and that at the time of the commencement and filing of this suit the plaintiff was not a resident of Nacogdoches county, state of Texas, but was then a resident of another and different county, that this defendant was, and is yet, an inhabitant of Sabine county, state of Texas."

Appellee replied to this plea by general demurrer and by affidavit to the effect:

"That his suit is not a suit sounding in damages for libel or slander; that it is a suit for damages for malicious prosecution and imprisonment; and that the statutes specifically provide that such suit may be brought in the county where such malicious prosecution and imprisonment was had, as is provided in section 9 of article 1830, V. S. C. S."

Appellee offered no proof to sustain his venue in Nacogdoches county, nor under the plea of privilege filed by appellant was he required to do so. We agree with appellant in his proposition that—

"A proper plea of privilege to be sued in one's county is prima facie proof of its genuineness, and, unless the same is contested, it shall be granted."

But to be "a proper plea of privilege" it must put in issue the jurisdictional facts alleged by plaintiff. Pearce v. Wallis, 58 Tex. Civ. App. 315, 124 S. W. 496; Drummond v. Bank, 152 S. W. 739; Baldwin v. Richardson, 87 S. W. 353; Kirkpatrick v. Bank, 148 S. W. 362.

The...