Thompson v. Duncan

• Decision Date: 05 December 1931
• Docket Number: No. 10903.,10903.
• Citation: 44 S.W.2d 508
• Parties: THOMPSON et al. v. DUNCAN.
• Court: Texas Court of Appeals

44 S.W.2d 508

THOMPSON et al. v. DUNCAN.

No. 10903.

Court of Civil Appeals of Texas. Dallas.

December 5, 1931.

Appeal from District Court, Dallas County; Robert B. Allen, Judge.

Action by J. L. Duncan against J. T. Thompson and others. From an order overruling defendants' pleas of privilege, defendants appeal.

Reversed and rendered.

Starnes, James, Clower & Gibson, of Greenville, for appellants.

W. E. West, of Canton, and W. B. Harrell, of Dallas, for appellee.

LOONEY, J.

J. L. Duncan sued J. T. Thompson, E. B. Tunnell, E. L. Fowler, and B. M. Fowler, residents of Van Zandt county, for damages for libel and slander, alleging that the defendants combined and conspired to defame his character, and that, in furtherance of the conspiracy, defendant Thompson uttered the slanderous words and published the libelous matter, of which complaint is made.

Defendants filed separate pleas of privilege, which were contested by plaintiff, the material allegations of his contesting affidavit being that: "Said J. L. Duncan states, on oath, that the facts relied upon to confer venue of this cause in the county where it is pending is that he, the plaintiff, resided in Dallas County, Texas, at the time of the accrual of the cause of action set out in plaintiff's petition, and has continuously resided in Dallas County since said time, and so resided at the time this suit was filed, and that the suit is one for damages for libel and slander and comes within subdivision 29 of Revised Statutes, article 1995, as an exception to exclusive venue in the county of one's residence."

On the hearing, plaintiff introduced in evidence his original petition, and proved by evidence aliunde that he was residing in Dallas county on September 27, 1929, and thereafter during the entire period of the alleged libel and slanders. No other evidence was introduced, and on the record thus made the court overruled defendants' pleas of privilege, from which they appealed.

Defendants urge, as grounds for reversal, in substance that plaintiff failed to allege and prove the fact or facts relied upon to confer venue of the suit on the district court of Dallas county, in that he offered no proof as to the alleged cause of action, and none as to the alleged conspiracy. The substance of plaintiff's answer to this contention is that, having alleged in the contesting affidavit and proven by the introduction of his petition that the character of the suit was one for damages for libel and slander, and that at the time of the accrual of the alleged cause of action he resided in Dallas county, he discharged all burdens, both of pleading and proof; therefore the court committed no error in overruling defendants' pleas of privilege.

Defendants' pleas of privilege put in issue the existence of every fact constituting an exception to exclusive venue in the county of their residence, and cast upon plaintiff the burden of alleging and proving the fact or facts relied upon to confer venue of the cause on the district court of Dallas county. Did plaintiff discharge this burden? We do not think so. The petition discloses that the character of the suit is as alleged in the contesting plea, that is, a suit for damages for libel and slander, but its allegations cannot be received as proof otherwise. Plaintiff sought to bring the case under subdivision 29 of article 1995, R. S. 1925, on the contention that his residence was in Dallas county at the time of the accrual of the alleged cause of action. The allegations of the contesting affidavit are doubtless sufficient to raise that issue, and, while plaintiff made satisfactory proof that he resided in Dallas county on September 27, 1929, and continuously thereafter, no proof was offered showing, or tending to show, that he was slandered or libeled on that or on any other date.

Plaintiff seemingly contends that the rule governing in suits for the recovery of land, etc., is applicable to the question under consideration. Venue of these suits is fixed by subdivision 14 of article 1995, in the county where the land, or a part thereof, may lie, and decisions under this subdivision hold, in effect, that, as the character of the action is a question of law, determinable solely from the petition, the issue as to venue may be determined from the petition and the plea of privilege. The following cases support this idea: Nolen v. Harding (Tex. Civ. App.) 235 S. W. 687; Yates v. State (Tex. Civ. App.) 3 S.W.(2d) 114; Wood v. Tandy (Tex. Civ. App.) 299 S. W. 282; Koch v. Roedenbeck (Tex. Civ. App.) 259 S. W. 328; Thomason v. Ham (Tex. Civ. App.) 210 S. W. 561; Galbreath v. Farrell (Tex. Civ. App.) 221 S. W. 1015.

But we have here an entirely different question. The venue of libel and slander suits under subdivision 29 (article 1995) is not as definitely and unqualifiedly fixed as is the venue of suits controlled by subdivision 14, in that a plaintiff in the former class of suits is only authorized to bring the same in the county of his residence, if he resided there at the time the cause of action...