Thomason v. Ham

• Citation: 210 S.W. 561
• Decision Date: 18 January 1919
• Docket Number: (No. 8952.)
• Parties: THOMASON v. HAM et ux.
• Court: Texas Court of Appeals

210 S.W. 561

THOMASON v. HAM et ux.

(No. 8952.)

Court of Civil Appeals of Texas. Ft. Worth.

January 18, 1919.

Rehearing Denied March 8, 1919.

Appeal from District Court, Stephens County; Joe Burkett, Judge.

Suit by M. F. Ham and wife against G. J. Thomason. From a judgment for plaintiffs, defendant appeals. Affirmed.

G. W. Thomason, of Haskell, for appellant.

W. C. Veale, of Breckenridge, for appellees.

DUNKLIN, J.

M. F. Ham and wife instituted this suit against G. J. Thomason in the district court of Stephens county to cancel what is commonly designated as a mineral lease on certain lands in Stephens county, and also one tract of land situated in Throckmorton county. According to the allegations in the petition, the lease was, in fact, a conveyance to the defendant by the plaintiffs of all the coal, oil, gas, and other minerals located in the land. As a consideration for that conveyance the defendant agreed to begin immediately drilling and mining operations on said lands for the purpose of extracting therefrom said minerals and to prosecute such development work with reasonable diligence, and that obligation was breached by the defendant, and he afterwards wholly abandoned his contract. It was alleged that the instrument so executed had been recorded in the deed records of Stephens county, and that such record cast a cloud upon plaintiffs' title which they sought to have removed. It was further alleged that defendant was claiming title under that instrument. In the petition it was alleged that the defendant resided in Wichita county.

Defendant filed a plea of privilege that he resided in Wichita county, and invoked his statutory privilege to be sued in that county and in no other. That plea contained further allegations as follows:

"That none of the exceptions to exclusive venue in the county of one's residence mentioned in article 1850 (1194) or article 2308 (1565), R. S. of Texas, exist in this cause, that this is not a suit involving a crime, offenses, or trespass, a fraud or a suit concerning land, or damages thereto, suit to remove incumbrance or quiet title or a contract in writing to be performed in Stephens county, Tex., and does not come within any of the exceptions provided by law in such cases authorizing this suit to be brought or maintained in the county of Stephens, state of Texas, or elsewhere outside of the said county of Wichita."

The plea was duly verified by the defendant in compliance with the statute. That plea was heard by the trial court and overruled, and from that order the defendant has prosecuted this appeal.

It appears from the record that no controverting plea was filed by the plaintiffs in reply to the plea of privilege, nor was any evidence offered upon the hearing of the plea either to sustain or controvert the allegations therein contained. Article 1903 of the Revised Statutes, enacted in 1917 (Acts 35th Leg. c. 176 [Vernon's Ann. Civ. St. Supp. 1918, art. 1903]), reads as follows:

"A plea of privilege to be sued in the county of one's residence shall be sufficient, if it be in writing and sworn to, and shall state that the party claiming such privilege was not, at the institution of such suit, nor at the time of the service of such process thereon, nor at the time of filing such plea, a resident of the county in which such suit was instituted and shall state the county of his residence at the time of such plea, and that none of the exceptions to the exclusive venue in the county of one's residence mentioned in article 1830 or article 2308 of the Revised Statutes exist in said cause; and such plea of privilege when filed shall be prima facie proof of the defendant's right to change of venue. If, however, the 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. Upon the filing of such controverting plea the judge or the justice of the peace shall note on same a time for a hearing on the plea of privilege; provided, however, that the hearing * * * shall not be had until a copy of such...