Smith v. Daniels
| Decision Date | 11 November 1926 |
| Docket Number | (No. 415.)<SMALL><SUP>*</SUP></SMALL> |
| Citation | 288 S.W. 496 |
| Parties | SMITH v. DANIELS. |
| Court | Texas Court of Appeals |
Appeal from Limestone County Court; H. F. Kirby, Judge.
Action by Loyle Daniels against Tom Smith. From an order overruling a plea of privilege, defendant appeals. Reversed and remanded, with instructions.
Ira Lawley, of Groesbeck, and Ratliff & Ratliff, of Haskell, for appellant.
B. W. Miles, of Coolidge, for appellee.
Appellee, a resident of Limestone county, sued appellant, a resident of Haskell county, in the county court of Limestone county, to recover on an account for goods, wares, and merchandise sold and for money advanced, amounting in the aggregate to $289.09. Appellant duly filed his plea of privilege in statutory form, seeking to have the cause transferred to Haskell county, the county of his residence. Appellee then filed his controverting affidavit, to which appellant replied by general demurrer, general denial, and certain special exceptions. On October 17, 1925, the county court entered its order overruling appellant's demurrer and special exceptions and overruling the plea of privilege, without appellee offering any evidence in support of his controverting affidavit. This appeal is from the order of the court overruling said demurrer and exceptions and plea of privilege.
Under appellant's second assignment he contends the court erred in overruling his special exception No. 2 addressed to appellee's controverting affidavit, for the reason that said controverting affidavit was not verified as required by law. The controverting affidavit is signed by "Loyle Daniels, Plaintiff." The purported affidavit is as follows:
"Notary Public, Limestone County, Texas."
Article 2007 of our statutes provides:
"If the plaintiff desires to controvert the plea of privilege, he shall within five days after appearance day 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."
The controverting plea here does not appear to be sworn to by any one, and for this reason was insufficient, and the court should have sustained appellant's exception raising this question. Article 2007, Revised Statutes; E. L. Witt & Sons v. Stith (Tex. Civ. App.) 265 S. W. 1076. We sustain this assignment.
Under appellant's third assignment he contends the court erred in overruling and in not sustaining his third special exception to said controverting affidavit, wherein plaintiff claimed venue in Limestone county, because, at the time he filed this suit, he sued out an attachment, and that he thereby acquired jurisdiction under article 1830, par. 8 of the Revised Statutes, for the reason that said article and said paragraph have no application. This suit was not a suit for damages growing out of the suing out of and levy of a writ of attachment. Said article and paragraph of the statutes have no application whatever to this case, and the court should have sustained appellant's exception raising this question. We sustain this assignment.
Under appellant's fourth assignment he contends the court erred in overruling and in not sustaining his special exception to plaintiff's controverting affidavit, wherein plaintiff charged that defendant perpetrated a fraud in collecting certain sums of money belonging to plaintiff, for the reason no facts are alleged charging or attempting to charge defendant with any actionable fraud by reason of which venue could be sustained in Limestone county. As shown by his petition, appellee alleged that:
"On or about the 1st day of February,...
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