Wheeler v. Keels, No. 8310
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
| Writing for the Court | KEITH |
| Citation | 584 S.W.2d 574 |
| Docket Number | No. 8310 |
| Decision Date | 12 July 1979 |
| Parties | Lurlene WHEELER, Appellant, v. Gene KEELS, Appellee. |
Page 574
v.
Gene KEELS, Appellee.
Rehearing Denied July 31, 1979.
Page 575
Tom L. Ragland, Waco, for appellant.
G. A. Fitzgerald, Temple, for appellee.
KEITH, Justice.
This is a venue appeal. Plaintiff, alleging that she was a resident of McLennan County, brought suit in Bell County to recover damages for injuries she alleges she received while upon premises owned by Alton C. Boston, a resident of Bell County. The premises were leased to and in the possession of Gene Keels, a resident of Smith County. She sought a joint and several judgment against the owner and tenant. Boston answered generally and Keels filed his plea of privilege to be sued in the county of his residence.
Plaintiff's counsel then prepared a controverting affidavit wherein he sought to maintain venue in Bell County, and mailed it to the District Clerk with the request that she secure a setting thereon and to notify all counsel of the date of the hearing. No stamped or addressed envelope accompanied the request. *
Page 576
The clerk secured the signature of the judge upon the order setting a hearing and testified that she notified all counsel of the setting by mailing notice to such counsel. But plaintiff's counsel denied receiving such notice and did not appear at the hearing.
At the time and place set in the notice of the hearing, Keels presented his plea of privilege and it was granted, and the Court severed the cause as to Boston from that relating to Keels. A few days thereafter, the clerk mailed a cost bill to plaintiff's counsel and, so he testified, this was his first notice of the action upon his controverting plea.
Plaintiff then filed a motion to vacate the order transferring the cause and it was heard and denied less than thirty days after the order sustaining the plea of privilege was entered. Defendant appeals assigning two points of error, the first of which is that under the rationale of Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939), the court erred in refusing to vacate the order sustaining the plea of privilege. This Court, in Drennan v. Belgin Enterprises, Inc., 434 S.W.2d 899, 903 (Tex.Civ.App. Beaumont 1968, no writ), held that the Craddock rule is applicable to a venue case wherein plaintiff failed to appear at the precise time set for the hearing on the controverting affidavit.
Plaintiff's reliance upon the Craddock rule is misplaced for the reason that his claimed lack of...
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Seidman & Seidman v. Schwartz, s. 04-82-00480-C
...on the plea on the plaintiff. Gregory v. Gray, 612 S.W.2d 658, 659 (Tex.Civ.App.--Houston [14th Dist.] 1981, no writ); Wheeler v. Keels, 584 S.W.2d 574, 576 (Tex.Civ.App.--Beaumont 1979, no writ); Hargrove v. Koepke, 320 S.W.2d 53, 54 (Tex.Civ.App.--San Antonio 1959, no writ). S & S claims ......
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Matador Pipelines, Inc. v. Thomas, No. C14-82-237CV
...constitutes prima facie proof of the defendant's right to have the suit removed to the county of his residence. Wheeler v. Keels, 584 S.W.2d 574 (Tex.Civ.App.--Beaumont 1979, no writ). The burden of proof is then placed on the plaintiff to file a controverting plea, the effect of which is t......
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Grozier v. L-B Sprinkler & Plumbing Repair, L-B
...transfer venue divested the trial court of authority to render a final judgment until that motion was determined. See Wheeler v. Keels, 584 S.W.2d 574 (Tex.Civ.App.--Beaumont 1979, no He further argues that where the motion to transfer is filed, unless the adversely affected party controver......
-
Seidman & Seidman v. Schwartz, s. 04-82-00480-C
...on the plea on the plaintiff. Gregory v. Gray, 612 S.W.2d 658, 659 (Tex.Civ.App.--Houston [14th Dist.] 1981, no writ); Wheeler v. Keels, 584 S.W.2d 574, 576 (Tex.Civ.App.--Beaumont 1979, no writ); Hargrove v. Koepke, 320 S.W.2d 53, 54 (Tex.Civ.App.--San Antonio 1959, no writ). S & S claims ......
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Matador Pipelines, Inc. v. Thomas, C14-82-237CV
...of privilege constitutes prima facie proof of the defendant's right to have the suit removed to the county of his residence. Wheeler v. Keels, 584 S.W.2d 574 (Tex.Civ.App.--Beaumont 1979, no writ). The burden of proof is then placed on the plaintiff to file a controverting plea, the effect ......
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Grozier v. L-B Sprinkler & Plumbing Repair, L-B
...motion to transfer venue divested the trial court of authority to render a final judgment until that motion was determined. See Wheeler v. Keels, 584 S.W.2d 574 (Tex.Civ.App.--Beaumont 1979, no He further argues that where the motion to transfer is filed, unless the adversely affected party......