Traweek v. Ake
| Decision Date | 13 April 1955 |
| Docket Number | No. 5101,5101 |
| Court | Texas Court of Appeals |
| Parties | Ed E. TRAWEEK and Katherine Helen Kirkeby, a feme sole, Appellants, v. O. H. AKE and wife, Esther Elizabeth Ake, Appellees. |
Bradbury, Tippen & Brown, Abilene, for appellants.
Runge, Hardeman, Smith & Foy, San Angelo, for appellees.
This is a venue action and is an appeal from the action of the trial judge overruling appellants' plea of privilege. Appellants' place of residence was alleged to be in Taylor County, Texas. The controversy arose from a contract entered into between the parties whereby appellees agreed to buy from appellants a business known as the Reagan Drive-In, at Big Lake, Texas. This contract set up the purchase price, part in cash and part in notes, and provided further that the surface lease on the premises should be transferred or a new lease obtained from the University of Texas. The contract describes the property to be sold as
'buildings, equipment, merchandise, Neon sign, and etc., situated in the town of Big Lake, County of Reagan, State of Texas.'
No place of performance is specifically mentioned and the notes mentioned in the contract to be executed were apparently never executed, in any event the contract did not specify the place of payment for either the cash or the notes. There was no real estate involved, other than the mention of the transfer of surface leases.
Appellees sued for rescission and damages.
Appellants filed their plea of privilege and appellees filed their controverting affidavit. After a hearing the trial court overruled appellants' plea of privilege.
Our venue statutes provide that the defendant shall be sued in the county of his residence unless he can qualify under one or more of the statutory exceptions. These exceptions to the venue statute such as Subdivisions 5 and 14, art. 1995, Vernon's Ann.Civ.St., which deal with written contracts and matters dealing with an interest in land, are ordinarily determined by the principal right asserted in the petition and the nature of relief sought, and the character of the suit will be determined from the petition. O'Quinn v. Dunagan, Tex.Civ.App., 227 S.W.2d 366; Joy v. Joy, Tex.Civ.App., 254 S.W.2d 810; Allison v. Yarborough, Tex.Civ.App., 228 S.W.2d 930.
We do not believe this controversy is one coming under Subdivision 14 as it is primarily one for breach of contract, inasmuch as plaintiffs alleged failure of defendants to perform and asked for rescission and damages, therefore it does not come under Subdivision 14. Umbaugh v. Miers, Tex.Civ.App., 256 S.W.2d 660; Lake v. Reid, Tex.Civ.App., 252 S.W.2d 978.
Further, it has been held that a suit for specific performance or rescission of a contract for the sale of land is not within this exception. Of course here we have only a provision calling for the transfer or obtaining of surface leases. Morris v. Runnells, 12 Tex. 175; Mixan v. Grove, 59 Tex. 573; Hearst's Heirs v. Kuykendall's Heirs, 16 Tex. 327. We therefore hold that this controversy or appellees' position thereunder does not come under Subdivision 14 of Art. 1995, V.A.C.S.
With regard to Subdivision 5 it has...
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Brazos Valley Harvestore Systems, Inc. v. Beavers, 899
...applies to the circumstances of the case. See Shelton v. Poynor, 326 S.W.2d 583 (Tex.Civ.App.--El Paso 1959, writ dism'd); Traweek v. Ake, 280 S.W.2d 297 (Tex.Civ.App.--El Paso 1955, n.w.h.); Miller v. Howell, 234 S.W.2d 925 (Tex.Civ.App.--Fort Worth 1950, n.w.h.). We have found no case in ......
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...Chief Justice, et al., 147 Tex. 341, 215 S.W.2d 610; N. Estrada, Inc. v. Terry, Tex.Civ.App., 293 S.W. 286, n.w.h.; Traweek v. Ake, Tex.Civ.App., 280 S.W.2d 297, and Blanco v. Rowell, Tex.Civ.App., 347 S.W.2d 641. As stated in Butler, Williams & Jones v. Goodrich, 'Saigh v. Monteith (147 Te......
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Miller v. Lochridge
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