Robertson v. Robertson

• Decision Date: 28 September 1964
• Docket Number: No. 7398,7398
• Citation: 382 S.W.2d 945
• Parties: C. B. ROBERTSON, Appellant, v. Mona ROBERTSON, Appellee.
• Court: Texas Court of Appeals

Page 945

382 S.W.2d 945

C. B. ROBERTSON, Appellant, v. Mona ROBERTSON, Appellee.

No. 7398.

Court of Civil Appeals of Texas, Amarillo.

Sept. 28, 1964.

Rehearing Denied Oct. 19, 1964.

Albert Smith, Lubbock, for appellant.

Hamilton & Deaver, Memphis, for appellee.

DENTON, Chief Justice.

This suit was filed by appellant, C. B. Robertson, against appellee, Mona Robertson, seeking a mandatory injunction to compel the removal of an embankment constructed by appellee and for damages alleged to be caused by the embankment's diversion of the natural flow of the surface water onto appellant's land. This case has been tried four times and this is the third appeal. The third trial resulted in a hung jury. See (Tex.Civ.App.), 291 S.W.2d 452; (Tex.Civ.App.), 309 S.W.2d 957; 159 Tex. 567, 323 S.W.2d 938. Based on a jury verdict the trial court entered judgment denying appellant any relief.

After the Supreme Court reversed and remanded the case following the second trial appellant duly filed his verified application for change of venue urging as grounds therefor that there exists in Hall County prejudice in favor of appellee, Mona Robertson, and against appellant, C. B. Robertson, and wide-spread, general familiarity of the citizens of that county with the case; and that by reason of which appellant alleged he could not receive a fair and impartial trial in Hall County. Appellant's application was in proper form and was supported by affidavits by three credible persons as required by Rule 257, Texas Rules of Civil Procedure. Appellee timely contested the application, denying under oath the truth of the allegations contained therein; but did not allege affirmative matters in opposition to appellant's application. We are of the opinion, and so hold, appellee's affidavit opposing the application for change of venue was a sufficient attack to form an issue which must be tried by the trial court as required by Rule 258. City of Irving v. Luttrell, (Tex.Civ.App.), 351 S.W.2d 941. The issue thus formed was heard by the trial judge. The application was refused and appellant duly excepted. Thereupon, the case was tried on its merits before a jury. Based upon this jury verdict the trial court rendered judgment denying appellant the relief sought.

Appellant's first point of error contends the trial court erred in overruling its motion for a change of venue. The issue having been formed, the burden was upon the appellant to prove the facts upon which the motion for change of venue was based. A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619; Trammell v. Currie (Tex.Civ.App.), 261 S.W. 827 (Dismissed). It is well settled that when the application is duly made and properly contested, as was done here, the trial judge becomes vested with broad discretion at the hearing to determine whether the application should be granted or refused. An abuse of discretion on the part of the trial judge is subject to review by the appellate courts, but unless an abuse of discretion is shown a decision below should not be disturbed on appeal. Texas & N. O. R. Co. v. Wilkerson (Tex.Civ.App.), 260 S.W.2d 912; Bennett v. Jackson (Tex.Civ.App.), 172 S.W.2d 395, (Refused, WM).

Four witnesses testified for the appellant in support of his application while no testimony was offered by appellee in opposition thereto. The affidavit filed by appellee cannot be considered as evidence but merely pleadings raising an issue of fact. Galveston H. & S. A. Ry. Co. v. Nicholson (Tex.Civ.App.), 57 S.W. 693, (...