Shear Co. v. Neely
| Citation | 214 S.W. 573 |
| Decision Date | 17 May 1919 |
| Docket Number | (No. 9105.) |
| Parties | SHEAR CO. v. NEELY. |
| Court | Texas Court of Appeals |
Appeal from District Court, Tarrant County; Bruce Young, Judge.
Suit by R. P. Neely against the Shear Company. From an order transferring the case to Harris County, the defendant appeals. Affirmed in part, and reversed in part.
J. D. Williamson, of Waco, for appellant.
Miller & Miller, of Fort Worth, for appellee.
R. P. Neely instituted this suit in a district court of Tarrant county against the Shear Company, domiciled at Waco, McLennan county, to recover damages caused by the circulation in Tarrant county of a libelous telegram sent by the Shear Company to A. E. Peden, food administrator of Texas, and by the latter sent to the plaintiff at Ft. Worth, Tex., where it was circulated and published as stated.
The defendant on May 1, 1918, in due form, time, and order, presented its plea of privilege to be sued in McLennan county where it had its domicile. To this plea, the plaintiff presented his controverting affidavit, alleging in substance the circulation of the libel in Tarrant county, which it was averred constituted a criminal offense under our laws, and which therefore brought the case within one of the exceptions (subdivision 9) to article 1830, relating to the venue of suits and specifying the exceptions to the general rule that a defendant is entitled to be sued in the county of his domicile.
The controverting affidavit, which under our statutes on the subject raised the issue on the plea of privilege, was filed on the 9th day of May, 1918. Thereafter on June 15, 1918, the plaintiff filed his first amended original petition setting out, as before, the libelous matter, and again alleged its circulation in Tarrant county, but for the first time further alleged its circulation also in Houston, Harris county. The prayer was, "the defendant having already been cited and having entered its voluntary appearance herein," for his actual and exemplary damages as in plaintiff's original petition.
On the same day, June 15, 1918, as is recited in the judgment, "came on to be heard the plea of privilege filed herein by defendant, the Shear Company, and the controverting affidavit thereto filed herein by the plaintiff, R. P. Neely." The result of the hearing was the findings that the "plea of privilege was well taken," and that "venue does not exist over" the cause of action in Tarrant county, but did in Harris county, and "likewise" in McLennan county, "the domicile and residence" of the defendant.
It was therefore ordered that the defendant's plea of privilege be "sustained," and that the suit be transferred to the district court of Harris county. From this order the defendant has duly prosecuted an appeal.
But a single question is presented for our determination. Appellant insists that the suit should have been transferred to the district court of McLennan county, rather than to Harris county. Appellee controverts this proposition and contends that the court, under the findings and circumstances, had the option to transfer the cause to either Harris county or McLennan county, and that therefore his order transferring it to Harris county cannot now be disturbed. In support of this contention, appellee cites Belo & Co. v. Wren, 63 Tex. 686; Rev. Stats. of Texas of 1911, art. 1832; Indiana & Ohio Live Stock Ins. Co. v. Krenek, 144 S. W. 1181; A., T. & S. F. Ry. Co. v. Stevens (Sup.) 206 S. W. 921.
We are of the opinion that the court erred in his ruling, and that the cause should have been transferred to the district court in McLennan county.
Article 1902 of the Revised Statutes provides that a defendant in his answer may plead as many several matters, whether of law or fact, as he shall think necessary for his defense and which may be pertinent to the cause, etc. The next article, as amended by the Act of April 2, 1917, chapter 176, § 1 (1 Vernon's Statutes, 1918 Supp. p. 443), evidently treats a "plea of privilege" as one among the pleas a defendant has the right to present under said article 1902. Moreover, the plea of privilege, under the amended article referred to, when filed, "shall be prima facie proof of the defendant's right to change of venue," and it is further specially provided that, if "a plaintiff desires to controvert the plea of privilege, he shall file a controverting plea under oath setting out specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending." And that "upon the filing of such controverting plea the judge or justice of the peace shall note on same a time for a hearing of the plea of privilege, provided, however, that the hearing shall not be had until a copy of such controverting plea, including a copy of such notation thereon, shall have been served on each defendant or his attorney, for at least ten full days exclusive of the days of service and of hearing." As it seems to us, a consideration of these articles referred to brings the plea of privilege and the plaintiff's controverting affidavit thereto within the rules that ordinarily apply to pleadings. As noted, the plea of privilege is not only designated as a pleading, but it is particularly provided that the controverting affidavit, before a hearing is authorized, shall be served upon the defendant or his attorney at least ten full days exclusive of the day of service and of hearing, thus evincing the legislative intent that a defendant presenting a plea of privilege should be fully informed by the plaintiff's controverting affidavit, if any, of what he will be called upon to meet. If so, the hearing of the plea of privilege, as in case of a trial upon other issues, should be confined to the allegations of the plea of privilege and to the averments of the controverting affidavit in accordance with the familiar rule that the allegata and the probata must correspond. In the case before us, as will be seen from our statement, there was no allegation in the plaintiff's...
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