Littlefield State Bank v. Moore

• Decision Date: 16 January 1924
• Docket Number: (No. 2239.)
• Citation: 257 S.W. 1007
• Parties: LITTLEFIELD STATE BANK v. MOORE et al.
• Court: Texas Court of Appeals

Page 1007

257 S.W. 1007

LITTLEFIELD STATE BANK v. MOORE et al.

(No. 2239.)

Court of Civil Appeals of Texas. Amarillo.

January 16, 1924.

Appeal from Lubbock County Court; P. F. Brown, Judge.

Action by George H. Moore and others against the Littlefield State Bank and another. The named defendant's plea of privilege was overruled, and it appeals. Affirmed.

Wilson & Douglas, of Lubbock, for appellant.

Spencer & Randal and Starnes & Howard, all of Lubbock, for appellees.

RANDOLPH, J.

This is an appeal from an interlocutory judgment of the county court of Lubbock county, overruling appellant's plea of privilege to be sued in the county of its residence — Lamb county.

Plaintiff's petition alleged that L. B. Steiger was a transient person, having no place of residence; that Littlefield State Bank is a corporation, having its principal place of business in Littlefield, Lamb county, Tex.; that plaintiff sold defendant Steiger certain personal property, setting out the various items and their prices, aggregating the sum of $204.55; that same was sold for cash, but that defendant gave them his check for only $102.20, drawn on defendant bank, and promised to pay the balance in a short time; that such check was by defendant Steiger given to and accepted by plaintiffs, on the representation that he had money in said bank and that they would not have parted with the possession of said property but for said cash payment and said representations that defendant Steiger had money in said bank, they believing and relying upon same; that the check when presented to said bank was dishonored; that such representations were false, and that defendant Steiger knew they were false when he made them, and that such representations were made by him for the purpose of defrauding the plaintiffs; that immediately upon discovering that said check was dishonored and said representations were false, plaintiffs rescinded said sale and demanded the return of the goods, but that said bank had obtained possession of the goods and refused to give up possession, but, on the contrary, obtained a bill of sale from the defendant Steiger, conveying the property to it and converted the same to their own use.

The defendant bank filed its plea of privilege to be sued in Lamb county, which being overruled, appeal has been had to this court.

Article 1903, Vernon's Texas Statutes, providing the requisites of a plea of privilege and providing that such plea when filed shall be prima facie proof of defendant's right to change of venue, does not, in our opinion, by the further provision of that article — which permits the plaintiff to contest defendant's right to change of venue by the filing of a controverting affidavit — alter the status of the parties or alter the position of the defendant. But we think, when the plaintiff files his contest, it devolves on him, and the burden remains on him, to show that the facts alleged in his controverting affidavit are true. If he fails to do this, defendant's prima facie right to change of venue remains unimpaired and, in the event of such failure of plaintiff, the trial court should sustain the plea and transfer the cause to the proper court. Holmes v. Coalson (Tex. Civ. App.) 178 S. W. 635; Carver Bros. v. Merrett (Tex. Civ. App.) 184 S. W. 744; Hayes v. Penney (Tex. Civ. App.) 215 S. W. 571.

However, we find in the transcript an agreed statement of the "evidence offered at the hearing of said plea of privilege." It is not stated by whom, plaintiff or defendant bank, this evidence was tendered in court. But this is not material, the evidence is in the record and inures to the benefit of either party whose cause of action or defense it tends to establish.

This being true, it devolves on us to ascertain if the evidence sustains the plaintiff's controverting affidavit.

The evidence discloses that Steiger, when he bought the goods from the plaintiffs and as an inducement for them to part with the possession of the goods, represented...