Leonard v. Maxwell, A-8966

• Decision Date: 30 January 1963
• Docket Number: No. A-8966,A-8966
• Parties: John S. LEONARD, Jr., Petitioner, v. Charles B. and Violet MAXWELL, Respondents.
• Court: Texas Supreme Court

Page 340

365 S.W.2d 340

John S. LEONARD, Jr., Petitioner, v. Charles B. and Violet MAXWELL, Respondents.

No. A-8966.

Supreme Court of Texas.

Jan. 30, 1963.

Rehearing Denied March 20, 1963.

Long, Maroney & Aronson, Brown, Sparks & Erwin, Austin, for petitioner.

Warren McKenney, Byrd & Davis, Austin, for respondents.

GRIFFIN, Justice.

Respondents, as plaintiffs, filed their suit in the District Court of Travis County, Texas, against petitioner, as defendant, for damages resulting from being hit by an automobile driven by the defendant. In due time-March 31, 1961-defendant filed his plea of privilege in proper form, alleging that he resided in Dallas County, Texas, and asking for transfer of the cause for trial to Dallas County, Texas.

April 4, 1961, plaintiffs filed their plea controverting the defendant's plea of privilege. This controverting plea was not sworn to and contained no affidavit, and therefore did not comply with the requirements of Rule 86, Texas Rules of Civil Procedure. May 29, 1961, defendant filed his motion to strike the plaintiffs' controverting plea, on the ground that such plea did not conform to Rule 86, Texas Rules of Civil Procedure, and that no controverting plea had been filed within the time required by Rule 86, and in addition again asked that the case be transferred to Dallas County, Texas. Plaintiffs on the same date filed an answer to the motion to strike because said motion was in general terms only and alleged no facts justifying the striking of the controverting plea. On the same day, plaintiffs filed what they called their 'first amended plea controverting plea of privilege' in the identical language of their original controverting plea, save and except the addition of language calling it their 'first amended plea' and filed 'with leave of the court first obtained.' This amended plea had an affidavit by one of plaintiffs' attorneys and a proper jurat.

June 8, 1961, plaintiffs filed their 'plea controverting plea of privilege' in the same language as their original controverting plea and also as their first amended controverting plea, except all reference to leave of the court having been first obtained and that this was an amended plea was omitted. The allegations of paragraphs 1 and 2 in all three controverting pleas were identical. This June 8th controverting plea also had appended an affidavit and jurat in all respects except as to date identical with that attached to the first amended plea.

The trial court overruled defendant's motion to strike the controverting plea, and granted plaintiffs' motion to be permitted to file a controverting plea. This order shows the court acted on same June 8th but signed it June 14th. The trial court by another order dated June 8th but signed and entered June 16th, set out the facts relied upon by plaintiffs to excuse the failure to file a proper controverting plea within the ten-day period provided by Rule 86, and found these facts showed good cause and granted plaintiffs leave to file their controverting plea June 8th as was shown by the June 14th order.

Defendant on June 21, 1961, filed an answer containing exceptions to the June 8th controverting plea, and again moved to strike this plea. The grounds stated therein will be more fully discussed later in this opinion.

The trial court by its order dated June 21, 1961, but signed and entered June 27, 1961, after a hearing on the plea of privilege, overruled the same.

On appeal to the Court of Civil Appeals, the trial court's action was affirmed, one Justice dissenting. 356 S.W.2d 335.

This being a plea of privilege case, we have jurisdiction thereof under Sec. 1 of Art. 1728, Vernon's Ann. Revised Civil Statutes of Texas.

Defendant by his points of error raises the question that the various controverting pleas were not sufficient to permit the introduction of evidence on the hearing of the plea of privilege.

Omitting the opening and concluding paragraphs, all three of the controverting pleas found in the record are in identical language and read as follows:

'1. Plaintiffs deny the allegation contained in defendant's plea of privilege that no exceptions to exclusive venue in the county of one's residence provided by law exist in such case and plaintiffs say that in truth and in fact an exception to exclusive venue in the county of one's residence does exist.

'2. Plaintiffs allege that the allegations contained in their original petition on file herein are true and correct, and that plaintiffs are entitled to bring this suit in Travis County against the defendant, John S. Leonard, Jr., under Section 9a of Article 1995, Revised Civil Statutes of Texas.'

The affidavits attached to the second and third controverting pleas are identical (except as to a showing that the second one is an amendment) and are as follows:

'The State of Texas:

County of Travis:

'BEFORE ME, the undersigned authority, a Notary Public in and for Travis County, Texas, on this day personally appeared WARREN P. McKENNEY, to me well known to be a credible person of lawful age and qualified in all respects to make this affidavit, who, being first duly sworn, on oath says that he is attorney for Violet Maxwell and husband, Charles B. Maxwell, and that he has read the foregoing plaintiff's plea controverting plea of privilege in cause No. 121,002, Charles B. and Violet Maxwell v. John S. Leonard, Jr., in the 98th District Court of Travis County, Texas, and knows the contents thereof, and that such instrument and every statement, allegation and denial thereof are true and correct.

Warren P. McKenney'

(Jurat follows)

We hold that no one of these controverting pleas is sufficient to comply with the requirements of law as to the contents of a controverting plea and its accompanying affidavit, and therefore it was error for the lower courts to overrule defendant's plea of privilege.

Art. 1995, subdivision 9a, provides:

'* * * The venue facts necessary for plaintiff to establish by the preponderance of the evidence to sustain venue in a county other than the county of defendant's residence are:

'1. That an act or ommission of negligence occurred in the county where suit was filed.

'2. That such act or omission was that of the defendant, in person, or that of his servant, agent or representative acting within the scope of his employment.

'3. That such negligence was a proximate cause of plaintiff's injuries.'

A reading of the controverting pleas clearly demonstrates that no one of them alleges these necessary venue facts. Plaintiffs answer first that their reference to Subdivision 9a of Art. 1995 is a sufficient allegation. This allegation states no cause of action against anyone for any damages. At best it can only be an allegation of the statutory language and is a conclusion. In the face of an exception, as filed herein, the allegation is insufficient to permit proof of the necessary venue facts.

In discussing the requisites of a controverting plea, the court said in Jefferies v. Dunklin (1938), 131 Tex. 289, 115 S.W.2d 391:

'Under the plain terms of the above statute (Now rule 86 T.R.C.P.), the controverting plea of the plaintiffs is, and must be, a sworn pleading. Also, under the plain terms of such statutes, such controverting plea must set out specifically the fact, or facts, relied on by the plaintiff to establish venue in the court where the case is pending. In this connection, the statute unquestionably contemplates that the controverting plea constitutes the pleadings of the plaintiff on the issue of venue, and such plea must allege all the facts that are necessary to be proved to sustain the venue in the court where the suit is filed. The statute puts the burden on the plaintiff to plead in his controverting plea, and to prove, the facts which will sustain the venue in the court where the suit was filed. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91. An examination of the controverting plea filed by the plaintiffs in this case will disclose that it neither directly nor indirectly makes the petition in such case a part thereof. Such controverting plea must therefore be tested by its own allegations, unaided in any way by the petition. Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347. When we test this controverting plea by its own terms or allegations, unaided by the petition, we find that it amounts to nothing, because it fails utterly to allege a cause of action against defendant in Tarrant county. In fact, it unaided by the petition, is meaningless as a controverting plea or pleading.' (Emphasis added.)

In the case of Henderson Grain Co. v. Russ (1933), 122 Tex. 620, 64 S.W.2d 347, this court held a controverting affidavit insufficient, even though it specifically pleaded reliance upon Sections 4 and 9 of then Art. 1995, Revised Civil Statutes to maintain venue in the county where the suit was filed. Also, the plaintiff in his controverting affidavit alleged that he delivered the grain ('mentioned and described in their petition, to which reference is here made'), for conversion of which the suit was brought in Carson County, Texas, to one of the defendants in Carson County, Texas.

This court said that the controverting affidavit nowhere makes the petition a part thereof, and therefore the allegations of the controverting affidavit must be tested by its own allegations 'unaided by the petition.' The controverting affidavit was held insufficient.

In A. H. Belo Corp. v. Blanton (1939), 133 Tex. 391, 129 S.W.2d 619, this court held insufficient to permit introduction of testimony the following allegation of a controverting plea:

"'* * * this is a civil libel suit * * * as set forth and pleaded in plaintiff's original petition, which for the purpose of showing that this is a civil libel suit is referred to and made a part of this controverting affidavit."'

The Court also said:

'In other words, it is necessary, in order to comply with Article 2007, that the plaintiff in his controverting...