Meadows & Co. v. Turner

• Decision Date: 07 March 1925
• Docket Number: (No. 9343.)
• Citation: 270 S.W. 899
• Parties: MEADOWS & CO., Inc., v. TURNER.
• Court: Texas Court of Appeals

Page 899

270 S.W. 899

MEADOWS & CO., Inc., v. TURNER.

(No. 9343.)

Court of Civil Appeals of Texas. Dallas.

March 7, 1925.

Rehearing Denied April 4, 1925.

Appeal from District Court, Dallas County; Kenneth Force, Judge.

Action by J. E. Turner against Meadows & Co., Incorporated, and others, in which certain defendants filed a plea of privilege. From a judgment overruling such plea, defendant named appeals. Reversed and remanded.

Capps, Canty, Hanger & Short, of Fort Worth, and Witt, Terrell & Witt, of Waco, for appellant.

Rasbury, Adams & Harrell, of Dallas, for appellee.

LOONEY, J.

This appeal is from an order overruling a plea of privilege. J. E. Turner, appellee, sued C. R. Myers, a resident of Johnson county, Tex., on a promissory note payable in Bosque county, also the appellant herein, Meadows & Co., Inc., domiciled in McLennan county, Tex., the Greiner-Kelly Drug Co., Inc., the J. W. Crowdus Drug Co., Inc., both domiciled in Dallas county, Tex., and other defendants residing in Tarrant, Johnson, and McLennan counties.

Appellant, as well as all out-of-the-county defendants, except Myers, filed pleas of privilege, which, by agreement of the parties, are to abide the decision of the court in this case. Appellant's plea of privilege, in form and substance, was in compliance with the provisions of article 1903, Revised Statutes. It is not necessary to make any statement of the pleadings, other than to say that appellee sought to hold appellant and the defendants, other than Myers, liable for the payment of the Myers' note, on the idea that they, and each of them, had assumed its payment or had become liable for its payment by reason of the facts alleged in his petition.

To the plea of privilege filed by appellant, appellee interposed the following controverting affidavit:

"To the Honorable Judge of Said Court:

Comes the plaintiff, J. E. Turner, by and through one of his attorneys, W. B. Harrell, and makes this, his affidavit and contest to the plea of privilege filed in this cause by Meadows & Co., Inc., and for said controverting affidavit and contest would show that this suit comes within article 1830, subdivision 4 of the Revised Civil Statutes of Texas: `Where there are two or more defendants residing in different counties, in which case the suit may be brought in any county where any one of the defendants reside.' And said plaintiff would show that there are two or more defendants in this cause, and that the defendants, Crowdus Drug Company and Greiner-Kelly Drug Company, are both defendants in this cause and are each corporations under the laws of the state of Texas, and each have their principal place of business in Dallas County, Texas, and the venue of this cause should be sustained. Wherefore plaintiff prays that the plea of privilege herein be overruled and denied."

Appellant assigns as error the action of the trial court in overruling its general and special exceptions to the controverting affidavit filed by appellee. We cannot consider these assignments, for the reason that the record fails to show any action of the court thereon, except it appears by a bill of exception that the court overruled the general demurrer.

The courts of this state have repeatedly held that the action of the trial court on demurrers will not be reviewed on appeal in the absence of a judgment entry showing the ruling of the court, although the ruling is made to appear in a bill of exception. Rule 53 for District and County Courts; Daniel v. Daniel (Tex. Civ. App.) 128 S. W. 469; St. L. & S. F. Ry. Co. v. Cartwright (Tex. Civ App.) 151 S. W. 630; Bishop v. Mount (Tex. Civ. App.) 152 S. W. 442.

In several propositions appellant makes the further contention that the order of the court overruling its plea of privilege was without evidence to support it, in that there was an entire absence of evidence showing that appellee had a cause of action against either the appellant or the defendants residing in Dallas county, and that neither the appellant, nor either of the defendants residing in Dallas county, was shown by the evidence to be a necessary or proper party to the suit against Myers on the note.

It will be observed that the only evidence offered by appellee on the trial of the contest, tending in any way to show the existence of a joint cause of action against appellant and the defendants residing in Dallas county, was the evidence afforded by the allegations of his original petition. In our opinion, plaintiff's petition cannot be used as evidence to support the contention that he has a joint cause of action against these defendants. If the allegations of the plaintiff's petition had been made a part of the controverting plea by appropriate reference, they would thereby have become a part of the contesting plea, and could be looked to as a basis for the admission of evidence, but could not be considered evidence to establish the existence of any fact relied on to confer venue of the suit on the court below.

To hold otherwise would result in depriving a defendant of the valuable right to be sued in the county of his residence on the unproven allegations of the plaintiff's petition, or of casting on him the burden of showing that the cause did not belong to any of the exceptions to exclusive venue in the county of his residence. To illustrate, a plaintiff by proper allegations brings his case clearly within one of the exceptions to exclusive venue, a plea of privilege is urged by defendant, which is contested by plaintiff, and, on the trial of the contest, plaintiff makes out a prima facie case by introducing in evidence the self-serving unproven allegations of his petition. If the contest ends at this point, plaintiff would succeed, the plea of privilege would be overruled. In order to meet the...