Pena v. Sling

• Decision Date: 29 May 1940
• Docket Number: No. 7666.,7666.
• Citation: 140 S.W.2d 441
• Parties: PENA et al. v. SLING et al.
• Court: Texas Supreme Court

140 S.W.2d 441

PENA et al. v. SLING et al.

No. 7666.

Supreme Court of Texas.

May 29, 1940.

Certified Questions from Court of Civil Appeals of Fourth Supreme Judicial District.

Partition by proceeding by Hattie Morgan Pena and others against W. H. Sling and others. From a judgment sustaining pleas of privilege changing the venue of the cause from Bexar County to Duval County, plaintiffs appeal to the Court of Civil Appeals which certified the questions to the Supreme Court.

Questions answered.

William R. Quilliam, of Hebbronville, and Lester Whipple and Tabor Stone, both of San Antonio, for appellants.

Andrew Dilworth, W. H. Shireman, John J. Cox, and Dilworth, Shireman & Huth, all of San Antonio, for appellees.

CRITZ, Justice.

This cause is before this Court on certified questions from the Court of Civil Appeals at San Antonio. It involves an appeal from an interlocutory order of the District Court of Bexar County sustaining a plea of privilege, or venue. The order appealed from changes the venue of this cause from Bexar County to Duval County.

This suit was filed in the District Court of Bexar County in the form of a statutory action under Article 6082 et seq., R.C.S. 1925, to partition a tract of land in Duval County. The plaintiffs in the district court are Hattie Morgan Pena et al. All of the plaintiffs reside in Duval County, where the land is situated. The defendants in the district court are W. H. Sling, James C. Nelson, F. M. Frasher, R. F. Schoolfield, and Argo Royalty Company, a foreign corporation. Sling resides in McMullen County; Nelson, Frasher, and Schoolfield all reside in Bexar County. It is alleged that the Argo Royalty Company is operating in this state. The petition makes no express mention of any dispute of title as between the plaintiffs and the defendants, or any of them. The petition, omitting formal parts, is as follows:

"First

"For cause of action plaintiffs would allege and represent to the court that the plaintiffs and the defendants are the joint owners in fee simple of the following described land and premises situated in the County of Duval and State of Texas, to-wit: (Here follows description of 200 acres of land in Duval County.)

"Second

"That the plaintiffs own a one-half undivided interest in and to all of the above described land; that the defendant, W. H. Sling, owns a one-half undivided interest in and to the above described land, less however, and deducting an undivided 5/224ths interest in the mineral estate, which is owned by the defendant James C. Nelson, of San Antonio, Texas, and undivided 30/224ths interest in the mineral estate which is owned by the defendant F. M. Frasher, who resides in San Antonio, Texas, and an undivided 30/224ths interest in the mineral estate which is owned by the defendant R. F. Schoolfield, who resides in San Antonio, Texas, and an undivided 15/224ths interest in the mineral estate which is owned by the defendant Argo Royalty Company, of Denver, Colorado.

"Third

"That the plaintiffs and the defendants are the sole owners of said lands and premises, so far as is known to plaintiffs, and the estimated value thereof is $50,000.00

"Wherefore, plaintiffs pray the court that the defendants be cited to appear and answer this petition, and that plaintiffs have judgment for the partition and division of said lands and premises; that commissioners be appointed, and that writ of partition issue, and for possession of that portion as by judgment of the court may be ascertained and declared to be the property of plaintiffs; and for costs of suit, and for such other and further relief, decrees and orders, general and special, in law and in equity, as the nature of this cause may demand or merit."

In due time Sling filed plea of venue to be sued in Duval County, where this land is situated. This plea meets every requirement of Article 2007, R.C.S.1925, prescribing the statutory form of a plea of privilege, or venue. In addition to the requirements of a plea of privilege, or venue, as provided by Article 2007, supra, the plea filed by Sling contains the following allegation: "4. That the nature of the principal relief sought by plaintiffs in their original petition is for the recovery of lands and to quiet the title thereto, which lands are located wholly within the boundaries of Duval County, Texas, wherefore, under and by virtue of Article 1995, subdivision 14, Revised Civil Statutes of Texas of 1925, the exclusive venue for suits of that nature is in Duval County, Texas."

Nelson, Frasher, and Schoolfield filed a plea designated by them as "Plea in Abatement." We quote such plea as follows:

"That although the Plaintiff's petition in this case is in form a pleading for a partition of real estate, in fact the Plaintiff seeks principally the recovery of an undivided interest in lands and to quiet the title to such undivided interest in lands. That such lands are not located in Bexar County, Texas, the county in which this suit is instituted, but said lands are located wholly within the boundaries of Duval County, Texas, and that under Subdivision 14, of Article 1995, suits for the recovery of lands or to quiet the title to lands, must be brought in the county in which the land lies, and these Defendants respectfully show that although they are residents of Bexar County, Texas, the county in which this suit was instituted, the exclusive venue of a suit of the kind and character filed by Plaintiff is fixed in Duval County, where the land lies.

"Wherefore, premises considered, these Defendants respectfully pray that this cause be abated and that the venue of same be transferred to Duval County, Texas, and for such other and further relief, general and special, in connection therewith to which they may show themselves entitled."

After the filing by the defendants of the above-described pleas, Pena et al. filed controverting pleas as required by Article 2007. These controverting pleas reiterate the allegations of the original petition and make same a part thereof. The controverting pleas allege that the suit in Bexar County is a statutory action to partition land. Venue is claimed in Bexar County under exception 13 of Article 1995, Revised Civil Statutes of 1925, on the ground that three of the defendants reside in Bexar County. In this regard, the controverting plea expressly alleges: "Plaintiffs further deny that part of defendants' allegations which read `that under Subdivision 14, of Article 1995, suits for the recovery of lands or to quiet title to lands must be brought in the county in which the land lies' because this is not a suit to recover lands or to quiet title, but is a suit solely for the partition of the lands owned by these plaintiffs and defendants, and for that reason Subdivision 14, under Article 1995 Vernon's Revised Civil Statutes of Texas, 1925, does not apply, but Subdivision 13, of Article 1995, Vernon's Revised Civil Statutes of Texas, 1925, applies."

In addition to the above and other allegations, one of the controverting pleas contains the allegation that "one of the defendants, W. H. Sling, has filed a plea of privilege to have said cause transferred to Duval County, Texas, and the defendants F. M. Frasher, R. F. Schoolfield and James C. Nelson, who reside in San Antonio, Bexar County, Texas, who are proper and necessary parties defendant to this suit for partition, and each of said defendants assert an adverse claim or interest in and to the property above described * * *."

No pleadings have been filed in this cause for any defendants, except as bearing on the issue of venue.

The case was finally tried in the District Court of Bexar County on the issue of venue only. The district court entered its interlocutory judgment changing the venue of this cause from Bexar County to Duval County, where this land is situated. Pena et al. appealed to the Court of Civil Appeals at San Antonio, and that court has certified certain questions of law to this Court. The certificate, omitting formal parts, is as follows:

"Certificate

"To the Honorable Supreme Court of Texas:

"The above cause is now pending in this Court on motion for rehearing. The facts are stated in the accompanying tentative opinion on rehearing, which is in consonance with the original opinion of this Court. Our holding upon one of the material questions is in conflict with a decision, upon the same point, of the Court of Civil Appeals of the Sixth District, in Thompson et al., v. Pure Oil Co., 113 S.W.2d 662, and is alleged by appellees to be in conflict upon another point with a holding of our Supreme Court in Shell Petroleum Corp. v. Grays, 122 Tex. 491, 62 S.W.2d 113. Because of the conflict upon the first point; because the members of this Court are not in agreement upon all the holdings announced in the original or accompanying tentative opinion; and because of the importance of the questions involved, as well, we deem it advisable to certify, as appellees have requested. Accordingly, this Court, acting through its Chief Justice, does hereby respectfully submit for your decision the following questions, to-wit:

"First: In this suit brought in Bexar County for partition of land situated in Duval County, did the plaintiffs fully meet the burden resting upon them to sustain venue, by (1) introducing their original petition in evidence showing the nature of their suit to be, strictly and exclusively, a statutory action for partition of real estate, and (2) by showing that three of the defendants were residents of the county in which the suit was pending? Or, on the contrary

"Second: Was it necessary for plaintiffs to go further and affirmatively show by evidence that they owned title to a joint interest in the land to be partitioned? And,

"Third: Was it necessary for plaintiffs to go still further and show that the defendants' claim or interest in said land was adverse to that of plaintiffs?

"In compliance with Rule 15 of the Supreme Court this...