Pinkston-Hollar, Inc. v. Big Three Welding Supply Co.
| Decision Date | 24 April 1964 |
| Docket Number | No. 16503,PINKSTON-HOLLA,INC,16503 |
| Citation | 378 S.W.2d 715 |
| Parties | , Appellant, v. BIG THREE WELDING SUPPLY COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Lemon, Close & Atkinson, and R. D. Lemon, Perryton, for appellant.
Mehl, Williams & Ashley and Carlos C. Ashley, Jr., Fort Worth, for appellee.
Our opinion in this case, filed under date of March 13, 1964, is withdrawn and the following substituted therefor.
This is an appeal from an order overruling a plea of privilege. The plaintiff, Big Three Welding Supply Company, prevailed in the matter of venue against defendant, Pinkston-Hollar, Inc., on the latter's contention that subdivision or exception No. 5, 'Contract in writing', to Vernon's Ann.Tex.St. Art. 1995, 'Venue, general rule', had application to its suit. The exception gives a plaintiff the right to sue a defendant in the county wherein he has contracted to perform an obligation, either upon or by reason of such obligation, if same be in writing.
Upon the hearing of a plea of privilege in a case where a plaintiff's controverting affidavit raises such a venue issue, the burden of proof is upon the plaintiff. This is so because a plea of privilege is prima facie proof of the defendant's right to change venue. In order to sustain venue under subdivision or exception No. 5, it is necessary for the plaintiff to prove by a preponderance of the evidence, under his pleadings, an obligation in writing executed by and binding the defendant to perform the same in the county of the suit. Clark, Venue in Civil Actions, p. 244 et seq., 'The Hearing', Sec. 2, 'The Hearing Itself', and p. 45, 'Contract in Writing', Sec. 6, 'Proof Necessary to Sustain Venue'.
At the time assigned for hearing the plea of privilege of Pinkston-Hollar, Inc., the said defendant failed to appear and wholly made default. Hearing was conducted, nevertheless, following which, order of the court was entered in which it was recited: '* * * and the Court having heard and considered such Plea of Privilege and Controverting Plea, and the evidence and argument of counsel thereon and being of the opinion that the Plea of Privilege should be overruled, it is accordingly ORDERED, ADJUDGED and DECREED that such Plea of Privilege be and the same is hereby overruled.'
There is no statement of facts included in the record on appeal. Therefore we do not know the nature of the evidence to which the Court's order referred. There are no findings of fact or conclusions of law in the transcript.
The trial court felt that the plaintiff, Big Three Welding Supply Company, presented sufficient evidence to support the judgment. Under the circumstances we are bound to presume that there was sufficient evidence. Furthermore we must presume that the trial court found such facts thereupon as was necessary to support its judgment. We can...
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Duval County Ranch Co. v. Alamo Lumber Co.
...Corp., 388 S.W.2d 404 (Tex.1965); Trans-South Hydrocarbons Company v. Trinity Industries, Inc., supra; Pinkston-Hollar, Inc. v. Big Three Welding Supply Company, 378 S.W.2d 715 (Tex.Civ.App.--Fort Worth 1964, no writ); Drexler v. Architectural & Commercial Sales, 375 S.W.2d 550 (Tex.Civ .Ap......
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Trans-South Hydrocarbons Co. v. Trinity Industries, Inc.
...v. Architectural & Commercial Sales, 375 S.W.2d 550 (Tex.Civ.App., Corpus Christi 1964); and Pinkston-Hollar, Inc. v. Big Three Welding Supply Co., 378 S.W.2d 715 (Tex.Civ.App., Fort Worth 1964). The cases are uniform in holding that it is not necessary, in order to constitute a 'contract i......
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VanHuss v. Buchanan
...and that the terms of the contract bound the defendant to perform the contract in the county of suit. Pinkston-Hollar, Inc. v. Big Three Welding Supply Co., 378 S.W.2d 715 (Fort Worth, Tex.Civ.App., 1964, no writ In this case Mrs. VanHuss did not deny under oath the execution of the note su......
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John Farrell Lumber Company v. Wood, A-10820
...with the following decisions: Knudsen v. J. I. Case Co., Tex.Civ.App., 86 S.W.2d 794 (no writ); and Pinkston-Hollar, Inc. v. Big Three Welding Supply Co., Tex.Civ.App., 378 S.W.2d 715 (no writ). When a conflict of decisions is made the basis of Supreme Court jurisdiction, the conflict must ......