Pan Am. Sign Co. v. J. B. Hotel Co.

• Decision Date: 13 May 1966
• Docket Number: No. 16723,16723
• Citation: 403 S.W.2d 548
• Court: Texas Court of Appeals
• Parties: PAN AMERICAN SIGN COMPANY, Appellant, v. J. B. HOTEL COMPANY et al., Appellees. . Dallas

Page 548

403 S.W.2d 548

PAN AMERICAN SIGN COMPANY, Appellant, v. J. B. HOTEL COMPANY et al., Appellees.

No. 16723.

Court of Civil Appeals of Texas Dallas.

May 13, 1966.

Richard S. Woods, Dallas, for appellant.

John Peace, San Antonio, for appellees.

BATEMAN, Justice.

This appeal involves only the question of the proper venue of the case. The appellant Pan American Sign Company, claiming to hold an unsatisfied judgment against the appellee J.B. Hotel Company, sued that company and appellee E. J. Burke alleging that the former transferred its assets to the latter in fraud of creditors, that the transfer was void under Vernon's Ann.Civ.St., Art. 3997, and prayed that it be so adjudicated and set aside, for the appointment of a receiver and for general and special relief. Both defendants filed pleas of privilege, J.B. Hotel Company praying for transfer of the cause to Bexar County, where it resided, and Burke praying that it be transferred to Webb County, where he resided.

Appellant controverted the Hotel Company's plea on the ground that the suit was maintainable in Dallas County against the other defendant, E. J. Burke, under subdivision 3 of Art. 1995, V.A.C.S, and was therefore maintainable there against the Hotel Company, a necessary party, under subdivision 29a of Art. 1995.

Subdivision 3 provides that if a defendant resides without the State or if his residence is unknown he may be sued in the county in which the plaintiff resides. Subdivision 29a provides that when there are two or more defendants, and the suit is lawfully maintainable in the county of suit as to any of such defendants, it may be maintained in such county against any and all necessary parties thereto.

After due notice and hearing, the court sustained both pleas of privilege. By its first two points of error on appeal the appellant asserts that there was no evidence to support the sustaining of either plea of privilege, as the applicability of exceptions 3 and 29a was established by the uncontroverted evidence.

The only evidence offered by appellant to prove that Burke's residence was unknown was the testimony of its attorney, Mr. Richard S. Woods, who said that he tried to determine Burke's residence by examining the telephone directories for San Antonio and Laredo, Texas, but found only E. J. Burke, Jr. listed in San Antonio; that John E. Fitzgibbon, an attorney in Laredo, Webb County, Texas, advised him that Burke 'was out of the State.' Citation in this cause was sent to the Sheriff of Burke, after which answers were filed. was returned unserved. A citation was served on Elmore Borchers, a Webb County Attorney described by the Sheriff of Webb County as the attorney representing E. J. Burke, after which answers were filed.

On cross-examination Mr. Woods testified that while in Laredo before January 31, 1964 in connection with another cause he attempted unsuccessfully to locate Burke's address by visiting with the deputy sheriff who serves citations. He made no attempt to locate Burke anywhere else besides San Antonio at that time and made no trips to San Antonio to ascertain whether he could be located at the residence of his son, or that of his daughter, or anybody who might assist him in locating Burke.

Appellant proved that its residence was in Dallas County, Texas, and also introduced in evidence a letter dated March 20, 1964 from the Sheriff of Webb County, Texas, to appellant's attorney, as follows:

'We do not know when E. J. Burke became a citizen in Oklahoma. It seems that he travels extensively. However, his son, E. J. Burke, Jr. does live in San Antonio. Whenever our office can assist you in any way just call on us.'

There was other testimony, introduced by appellees, to the effect that in the years 1961, 1962 and 1963, and on January 31, 1964 (when this suit was filed) Burke lived at the Sands Motel, in Laredo, Texas, although on that date he was recuperating from a serious operation he had in Houston, Texas. His tax returns are prepared in Laredo, where he is well known. He had a Mercury station wagon registered in Webb County, Texas, as well as other interests in Laredo and in Nuevo Laredo, Mexico. He had a post office box in Laredo.

The burden of proof was on appellant to show by a preponderance of the evidence that Burke's residence was unknown to it at the time this suit was filed. This was a venue fact which it had to prove; a prima facie case was not sufficient. Compton v. Elliott, Tex.Com.App., 88 S.W.2d 91; Couch v. Schley, Tex.Civ.App., 255 S.W.2d 885, no wr. hist. To carry this burden appellant relied wholly on the testimony of its attorney, who said that he was the only person with appellant who was 'concerned with the whereabouts of Mr. Burke.' He may have intended that statement to mean that none of those in charge of appellant's business, other than himself, knew where Burke's residence was, and that he was the only one who made any effort to ascertain it; but the trial court could have interpreted it to mean that he was the only one connected with the company who Cared where it was; that others in the company may have known where it was but were not 'concerned' about it. Moreover, one's place of residence may be well known but his present 'whereabouts' quite unknown.

The trial court filed no findings of fact or conclusions of law. The state of the evidence was such as to warrant the implied finding that appellant failed to carry its burden of proving that...