Kountze v. Smith

• Decision Date: 08 October 1936
• Docket Number: No. 1769.,1769.
• Citation: Kountze v. Smith, 97 S.W.2d 737 (Tex. App. 1936)
• Parties: KOUNTZE et al. v. SMITH et al.
• Court: Texas Court of Appeals

97 S.W.2d 737

KOUNTZE et al. v. SMITH et al.

No. 1769.

Court of Civil Appeals of Texas. Waco.

October 8, 1936.

Appeal from District Court, McLennan County; Giles P. Lester, Judge.

Suit by Mrs. Grace W. Smith and husband against Charles T. Kountze and another. From an order transferring the cause to another county for trial, defendants appeal.

Affirmed.

Coke & Coke, of Dallas, for appellants.

McClellan, Lincoln & Williams, of Waco, for appellees.

GALLAGHER, Chief Justice.

Appellees, Mrs. Grace W. Smith and her husband, A. Foster Smith, brought this suit in the district court of McLennan county against appellants, Chas. T. Kountze and Denman Kountze, to recover, as the separate property of Mrs. Smith, an undivided interest in several tracts of land situated in Brown, Jackson, Matagorda, McMullen, Tyler, and Wharton counties. Appellees resided at the time, and still reside, in McLennan county, and appellants were then and are now nonresidents of this state. Appellants, in what they termed a plea of privilege, challenged the jurisdiction of the district court of McLennan county to try and dispose of said suit, and invoked the provisions of subdivision 14 of the general venue article of our statutes (article 1995), which provides, in substance, that suits for the recovery of land must be brought in the county in which the same, or a part thereof, is situated. They confirmed, in said plea, appellees' allegations with reference to the several counties in which the land sued for was situated. They further alleged in that connection that more of the land sued for was situated in Wharton county than in any other county, and asked that the cause be transferred to the district court of that county for trial and disposition. No other ground for the selection thereof as the place of trial was shown. Appellants also filed a separate instrument which they termed a plea to the jurisdiction and venue, in which they made substantially the same allegations as in their plea of privilege.

Appellees, in response to appellants' said pleas, filed what they termed a motion, in which they reaffirmed their allegations that appellants were nonresidents of the state, and further alleged that absent affirmative plea by them, the district court of McLennan county had jurisdiction, in a venue sense, to hear and determine the cause. Appellees asked in said motion that the cause be transferred to Brown county for trial.

The parties agreed in open court, in substance, that the allegations of fact contained in appellants' pleas and appellees' motion as above recited were true, and submitted such agreement to the court for consideration. Whereupon the court entered an order transferring the cause to Brown county for trial. Hence this appeal.

Opinion.

The gist of appellants' contention in this case is that when a plaintiff institutes a suit in a county in which venue as against the defendant cannot, on his objection, be maintained, that there accrues to such defendant an arbitrary and conclusive right to select and designate the county to which such suit shall be transferred, notwithstanding defendant may not maintain a residence or domicile either in said county or in the state and notwithstanding concurrent venue of the suit may lie in one or more other counties on the same identical ground as in the county so selected by the defendant. Appellees, on the other hand, contend that in such situation the right to select and designate the county to which the cause shall be transferred for trial is vested in the plaintiff, or, in the alternative, that it rests in the discretion of the court ordering such transfer.

Our revised statutes provide that no person who is an inhabitant of this state shall be sued out of the county of his domicile except in certain cases specifically recited. Some of the exceptions so provided are merely permissive and some are expressed in mandatory terms, such as "shall be brought" or "must be brought" in a county bearing some specific relation to the subject-matter of the suit. One of such permissive exceptions (subdivision 3) authorizes a suit against a nonresident to be brought in the county in which the plaintiff resides, while another exception (subdivision 14) provides that suit for the recovery of land "must" be brought in the county in which such land, or a part thereof, is situated. R.S. art. 1995. The former exception is subordinate to the latter when properly invoked. Knoles v. Clark (Tex.Civ.App.) 163 S.W. 369, 370, par. 3. It is affirmatively provided that a plea of privilege to be sued in the county of one's residence shall negative defendant's residence in the county in which suit is brought, shall affirmatively deny the existence of any of the exceptions recited in said article 1995 (as amended [Vernon's Ann.Civ.St. art. 1995]), and affirmatively aver the residence of the defendant filing such plea. Plaintiff may controvert any or all of the allegations so made. When he does so, the burden is on him to support his controverting plea by affirmative proof. Article 2007. Said statutes further provide that in event the plea of privilege is sustained, the case shall not be dismissed, but "the court shall transfer said cause to the court having jurisdiction of the person of the defendant therein" or "the Court shall order the venue to be changed to the proper Court of the county having jurisdiction of the parties and the cause." Article 2019, and article 2020, as amended by Acts 1933, c. 177 (Vernon's Ann.Civ.St. art. 2020). While each of the articles cited refers in terms to a "plea of privilege," our Supreme Court has held that the transfer of causes of action for the recovery of land are governed thereby. Shell Petroleum Co. v. Grays, 122 Tex. 491, 62 S.W. (2d) 113, 115, par. 1. None of the three articles last cited purport to confer upon either party any power to elect or designate the county to which the case shall be transferred in event a transfer is ordered, unless it be said that the filing by a defendant of a plea of privilege to be sued in the county of his residence constitutes such an election. Appellants not being, nor claiming to be, inhabitants of this state, the statutory privilege of being sued in the county of their residence can have no application. Aviation Credit Corporation v. University Aerial Service Corporation (Tex.Civ.App.) 59 S.W.(2d) 870, 871, par. 2.

Appellees cite, in support of their contentions above recited, the case of Atchison, T. & S. F. Ry. Co. v. Stevens. The opinion of the Court of Civil Appeals in that case is found in 192 S.W. 304. The plaintiff in his original petition alleged that the defendant was a foreign corporation and that it was sueable in El Paso county because it had a local agent therein. The defendant filed a plea of privilege in which it denied having an agent in said county and denied venue of the suit therein, but admitted venue in Potter, Hemphill, Galveston, Johnson, and Cook counties. The prayer for transfer embraced in said plea is not recited in the opinion. The trial court overruled the plea of privilege, tried the case on its merits and rendered judgment in favor of the plaintiff. The Court of Civil Appeals reversed the judgment of the trial court rendered on the merits, but sustained its action in overruling the defendant's plea of privilege. The Supreme Court granted a...