Stone Fort Nat. Bank of Nacogdoches v. Forbess

• Decision Date: 12 February 1936
• Docket Number: No. 6554.,6554.
• Citation: 91 S.W.2d 674
• Parties: STONE FORT NAT. BANK OF NACOGDOCHES v. FORBESS
• Court: Texas Supreme Court

91 S.W.2d 674

STONE FORT NAT. BANK OF NACOGDOCHES v. FORBESS

No. 6554.

Supreme Court of Texas.

February 12, 1936.

Certified Questions from Court of Civil Appeals of Seventh Supreme Judicial District.

Action by B. L. Forbess against the Stone Fort National Bank of Nacogdoches. From a judgment overruling defendant's plea of privilege, the defendant appealed to the Court of Civil Appeals which certified a question to the Supreme Court.

Question answered.

Underwood, Johnson, Dooley & Simpson, Vance Huff, and Rives Cornelius, all of Amarillo, for appellant.

Dennis Zimmermann, of Tulia, for appellee.

CRITZ, Justice.

This case is before us on a certified question from the Court of Civil Appeals for the Seventh District at Amarillo. The appeal involves only the question of venue. The opinion of the Court of Civil Appeals prior to certification is reported at 41 S.W. (2d) 695. The case was certified in response to mandamus issued by this court. The opinion on application for mandamus was written by Judge Ryan, speaking for section B of the Commission, and is reported in Stone Fort Nat. Bank v. Hall, 122 Tex. 526, 62 S.W.(2d) 86. We refer to these two opinions for statements of the issues involved. However, in order that this opinion may be complete within itself, we make the following statement:

It appears from the record that Forbess, who is hereinafter designated appellee, deposited $300 in Stone Fort National Bank of Nacogdoches, Tex., which is hereinafter designated appellant. This transaction took place wholly in Nacogdoches county, Tex., and appellant was and is domiciled in that county. Afterwards, appellee drew a draft on appellant bank in favor of the First National Bank of Canyon, Tex. This draft was for $300, the full amount of the deposit. The transaction relative to the drawing of this draft occurred wholly in Randall county, Tex. The Canyon bank was the agent of appellee, and had no authority to act for appellant. The Canyon bank, in law and in fact, presented the draft to appellant for payment at its place of business in Nacogdoches county, and payment was there refused. The draft was then protested, at a cost of $1.81. Later, appellee drew another check or draft on appellant in favor of the above-named Canyon bank, and payment thereof was also refused by appellant. The circumstances relating to the second check or draft were the same as the first, except there is no showing that the second check was protested.

After the happening of the above events, appellee filed this suit in the district court of Randall county, Tex., against appellant. Appellee's amended petition in the district court alleges the above facts, and in addition alleges that appellee was engaged in buying and selling cattle in Randall county, and that the failure of appellant to pay his above-named checks or drafts injured and damaged his credit in Randall county, and compelled him to borrow money and pay interest thereon in the last-named county. Appellee's petition further alleges that the failure to pay such checks or drafts rendered it impossible for him to make certain business deals in Randall county, from which he would have derived large profits. The petition further alleges that the refusal of appellant to pay such checks or drafts caused him to lose his interest in an estate in Nacogdoches county. The petition also alleges that the refusal to pay the above checks or drafts was willful and malicious on the part of appellant, and prays for $5,000 actual damages, and $5,000 exemplary damages. In addition, the petition prays for judgment for the amount of the deposit, with interest.

Appellant duly filed its statutory plea of privilege to be sued in the county of its domicile, Nacogdoches county. Appellee filed his controverting affidavit, in which he alleges the same facts as set out in his petition, and claims venue under exception 23 of article 1995, R.C.S.1925. In this connection appellee contends that a part of his alleged cause of action arose in Randall county because he suffered damages there. The case was heard on the plea of privilege and controverting affidavit alone, and the plea of privilege was in all things overruled. Appellant appealed, and the Court of Civil Appeals has certified to this court the following question: "Did the Trial Court err in overruling the Bank's plea of privilege?"

As already shown, appellee claims venue in this case in Randall county under exception 23 of article 1995. Under the general provisions of that statute, no person who is an inhabitant of this state shall be sued out of the county of his domicile. The article contains many exceptions to its general provisions. One of these exceptions is exception 23, which, so far as applicable here, permits a corporation to be sued in any county in which the cause of action, or any part thereof, arose. It is admitted that Stone Fort National Bank is a corporation whose domicile is in Nacogdoches county, Tex. The venue of this suit must therefore be changed to Nacogdoches county, unless it can be said that appellee alleged and proved a cause...