Snyder v. Johnson

• Decision Date: 20 November 1950
• Docket Number: No. 6111,6111
• Citation: 237 S.W.2d 740
• Parties: SNYDER et al. v. JOHNSON.
• Court: Texas Court of Appeals

Page 740

237 S.W.2d 740

SNYDER et al. v. JOHNSON.

No. 6111.

Court of Civil Appeals of Texas, Amarillo.

Nov. 20, 1950.

Rehearing Denied Jan. 2, 1951.

King Fike, Dalhart, Storey, Storey & Donaghey, Vernon, for appellant.

Richards & Richards, Dalhart, for appellee.

LUMPKIN, Justice.

This is an appeal from an order overruling a plea of privilege. The parties will be designated as they were in the trial court. Defendants attack the trial court's judgment on the sole ground that the pleadings and evidence are insufficient to support it.

The plaintiff, Robert Earl Johnson, sued the defendants, Cecil Snyder and Sam Parker, in the district court of Dallam County, Texas, for the alleged breach of an oral contract. The plaintiff asked for damages in the sum of $3,015.93. In the same suit, but as a distinct cause of action, the plaintiff sued the defendants for the conversion of $810.28. The plaintiff's original petition was filed on September 17, 1949.

The plaintiff alleged that the defendants were partners engaged in the building of houses; that Sam Parker was domiciled in Wilbarger County, while Cecil Snyder was a resident of Dallam County; that he entered into a contract with the defendants for the construction of a house in Hartley County; that the defendants did not satisfactorily perform the services agreed upon; that because a difference arose between them, the plaintiff finally paid the defendants $200 to get them off the job but through error overpaid them $810.28.

The defendants filed a plea of privilege in which they alleged they were each residents of Wilbarger County. The plaintiff controverted the plea of privilege by an affidavit in which he stated that Cecil Snyder was a resident of Dallam County, Texas, within the meaning of Subdivision 4 of the venue statute, Article 1995, Vernon's Annotated Civil Statutes; that Sam Parker was a resident of Wilbarger County; that both men were proper parties to the suit under Subdivision 4; that by reason of Cecil Snyder's residence in Dallam County, the suit could be maintained in that county under Subdivision 29a of the venue statute; and that, by the conversion of $810.28, the defendants had committed a crime or trespass in Dallam County and for that reason the suit could be maintained in Dallam County under Subdivision 9.

The defendants specially excepted to all of the controverting affidavit on the grounds that the allegations contained in it were conclusions and that it did not specifically set out the fact or facts relied upon to confer venue in Dallam County. The defendants further excepted to the controverting affidavit because, they alleged, there are conflicts between the petition and the affidavit and because the affidavit attached to the controverting plea is not sufficient in law to make the allegations of the petition a part of the controverting affidavit. After a hearing before the court without a jury the defendants' plea of privilege was overruled. The defendants excepted to the court's ruling and in due time perfected their appeal to this court.

The defendants contend that the trial court erred in overruling the defendants' special exceptions to the plaintiff's controverting affidavit. They insist that plaintiff's affidavit, as required by Rule 86, Texas Rules of Civil Procedure, does not specifically set forth the grounds on which he seeks to maintain venue in Dallam County.

Our courts have held that where a defendant files a plea of privilege, it must appear unmistakably that the one who swore to plaintiff's controverting plea has verified the whole instrument. If the original petition becomes a part of the controverting plea by reference or by adoption by the pleader, the affiant must likewise definitely swear to the truth of facts alleged in it. C. F. Lytle Co. v. Preston, Tex.Civ.App., 175 S.W.2d 440; A. H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619.

In this case the plaintiff by his controverting affidavit seeks to maintain venue in Dallam County under Subdivisions 4, 9 and 29a, Article 1995, Vernon's Annotated Civil Statutes. Attached to the controverting affidavit are copies of the plaintiff's original and first amended petitions, which are made a part of the controverting plea in the following language: 'Plaintiff attaches hereto a carbon copy of plaintiff's original petition filed in this cause and marks the same Exhibit A, and plaintiff attaches hereto a carbon copy of plaintiff's first original amended petition filed herein and marks the same Exhibit B, and here now incorporates each and both of said Exhibits A and B into this controverting affidavit as fully and completely as if copied herein verbatim and makes each and both of the same a part of this controverting affidavit.'

In our opinion this language is sufficient to make the plaintiff's original petition and his first amended petition a part of his controverting plea. In Cogdell v. Martin, 176 S.W.2d 982, 984, the Fort Worth Court of Civil Appeals said: 'It has long been the recognized rule of procedure in this state that the controverting affidavit may adopt the petition as a part thereof and in such instances it becomes a part of the affidavit and need not be copied therein. Rule 58 Texas Rules of Civil Procedure; Bates v. Stinnett, Tex.Civ.App., 170 S.W.2d 644, and the older cases there cited.'

The defendants likewise insist that the affidavit purporting to verify the controverting plea is not sufficiently broad to cover the allegations contained in the plaintiff's original petition and in his first amended petition. To the controverting plea the following jurat is attached: 'Before me, the undersigned authority, on this day personally appeared Robert Earl Johnson, who on his oath stated that he is plaintiff in the above entitled and numbered cause, and that the allegations, denials and facts set out in the foregoing controverting plea, and in Exhibits A and B, attached to said controverting plea, are all true and correct.' Since the petitions were made a part of the controverting affidavit, the affiant swore to the whole plea. This is all that is required by the law. Cogdell v. Martin, supra; Evans v. Jeffrey, Tex.Civ.App., 181 S.W.2d 709; Spencer v. Gray, Tex.Civ.App., 209 S.W.2d 651.

The requisities of a plea of privilege are set forth in Rule 86, Texas Rules of Civil Procedure. Under this rule a plea of privilege is prima facie proof of the defendant's right to a change of venue unless the plaintiff shall 'file a controverting plea under oath, setting out specifically the grounds relied upon to confer venue of such cause on the court where the cause is pending.' It has been observed that the plea of privilege is a creature of the law enacted for the benefit of the defendant; only the exceptions are for the benefit of the plaintiff. As against a defendant's plea of privilege, and before he can be deprived of the right of trial in the county of his domicile, the plaintiff must plead and prove that his cause comes within one or more of the exceptions to the venue statute. In the case of A. H. Belo Corporation v. Blanton, supra, 129 S.W.2d at page 622, the Supreme Court said 'that the plaintiff in his controverting affidavit * * * must allege, either in the controverting affidavit or by a specific reference to and adoption of allegations in his petition, sufficient facts as venue facts upon which the alleged cause of action is sought to be maintained.'

In order to establish venue in Dallam County, plaintiff is required to prove venue in such county only by a preponderance of the evidence to the satisfaction of the trial court, a jury having been waived. It is unnecessary for us to pass upon each of the exceptions relied upon by the plaintiff to maintain venue in said county. We therefore express no opinion upon the effect of either the pleadings or the evidence relating to the exceptions found in Subdivisions 9 and 29a of the venue statute. We believe that the nature of plaintiff's action and the evidence offered are sufficient under Subdivision 4 to sustain the trial court's judgment overruling the defendants' plea of privilege. Eppenauer v. Schrup, Tex.Civ.App., 121 S.W.2d 473; Central Motor Co. v. Roberson, Tex.Civ.App., 139 S.W.2d 287; American Seed Co. v. Wilson, Tex.Civ.App., 140 S.W.2d 269; Super-Cold Southwest Co. v. Green & Romans, Tex.Civ.App., 185 S.W.2d 749.

The pertinent portion of Subdivision 4 reads as follows: '4. Defendants in different counties.-If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. * * *' There is no question but that Sam Parker resided in Wilbarger County. In order to maintain venue in Dallam County under Subdivision 4, the plaintiff must have a bona fide cause of action against the resident defendant, as well as against the non-resident. This essential cause of action must be pleaded, and the cause alleged against the resident defendant must be supported by proof when placed in issue by the plea of privilege. Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347, 353. We do not consider it necessary to set forth in detail the plaintiff's allegations as found in his original and first amended petitions. He named as defendants individually and as partners Cecil Snyder, a resident of Dallam County, and Sam Parker, a resident of Wilbarger County. He alleged that the parties had entered into an oral agreement to construct a part of plaintiff's home, which was located at Dalhart, Hartley County, Texas. (The City of Dalhart is partly in Hartley County and partly in Dallam County). The plaintiff alleged that he was to pay the defendants,.$8,989.72 for the performance of their part of the agreement and that although he had performed his part of the agreement, the defendants had failed to comply with their part. In his petition the plaintiff set forth the particulars in which the defendants had failed to fulfill the agreement. He pleaded...