Scott v. Clark, 7563.

• Decision Date: 25 March 1931
• Docket Number: No. 7563.,7563.
• Citation: 38 S.W.2d 382
• Parties: SCOTT v. CLARK.
• Court: Texas Court of Appeals

38 S.W.2d 382

SCOTT v. CLARK.

No. 7563.

Court of Civil Appeals of Texas. Austin.

March 25, 1931.

Rehearing Denied April 8, 1931.

Appeal from County Court, Tom Green County; J. T. Mathison, Judge.

Action by Mrs. Leota Clark against K. V. E. Scott. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

R. G. Hughes, of San Angelo, for appellant.

Anderson & Jones, of San Angelo, for appellee.

BAUGH, J.

Suit by appellee against appellant on four checks signed by appellant, payable to appellee, two drawn on a San Angelo bank, and two on a Sonora bank, all aggregating $225. After appellant's plea of privilege to be sued in Sutton county, duly controverted, was overruled, trial was had to a jury on special issues and upon their answers to same judgment entered in favor of appellee; hence this appeal.

No statement of facts accompanies the record, and error of the trial court in two respects is here asserted (1) in overruling appellant's plea of privilege without hearing any evidence thereon; and (2) in not sustaining appellant's general demurrer to plaintiff's petition.

The only proceedings on the plea of privilege disclosed by the record are those recited in the bill of exception, approved by the trial court, the pertinent portion of which reads as follows: "That a hearing on the said plea of privilege and said controverting affidavit was postponed from time to time until the 8th day of February, 1930, when plaintiff and defendant and their respective counsel appeared in court for the purpose of conducting said hearing; that upon the matter being called to the court's attention the court stated that he was familiar with the facts surrounding the controversy (having heard same when it was before him, as this was a re-filing of the case previously dismissed) concerning venue of this cause, whereupon no testimony was offered by either the plaintiff or defendant and the court accordingly overruled defendant's plea of privilege, to which action of the court the defendant then and there in open court excepted and here now tenders this Bill of Exception No. 1."

It is now elementary that, upon filing of a plea of privilege in compliance with article 2007, R. S., the defendant is entitled to have the suit transferred in accordance with such plea, unless the plaintiff both plead and prove facts essential to sustain venue in the forum where such suit is filed, and that neither the pleadings nor the controverting affidavit of such plaintiff in themselves constitute such proof. Unless, therefore, the issue of venue had already been precluded against appellant, the trial court erred in not hearing proof on that issue.

The issue of venue when properly raised is one which the trial court must determine separate and apart from a hearing upon the merits; and from his judgment thereon either party may appeal. And when no appeal is prosecuted from his determination thereof, his action thereby becomes res adjudicata on that issue on subsequent proceedings between the parties on the cause of action wherever asserted. Old v. Clark (Tex. Civ. App.) 271 S. W. 183; Cobb Grain Co. v. H. H. Watson Co. (Tex. Civ. App.) 290 S. W. 842; Id. (Tex. Com. App.) 292 S. W. 174; Carter v. Calhoun (Tex. Civ. App.) 6 S.W.(2d) 191.

Appellee insists that, this case being between the same parties upon the same subject as one theretofore filed in the same court, in which the issue of venue was raised, the trial court could take judicial notice of the former hearing therein, and that it was not necessary to hear any evidence on the venue issue. It is true that a...