Wheeler v. Keels, 8310
| Citation | 584 S.W.2d 574 |
| Decision Date | 12 July 1979 |
| Docket Number | No. 8310,8310 |
| Parties | Lurlene WHEELER, Appellant, v. Gene KEELS, Appellee. |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
Tom L. Ragland, Waco, for appellant.
G. A. Fitzgerald, Temple, for appellee.
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. *
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 notice was a controverted issue of fact before the trial court in the hearing and was determined adversely to him. The deputy clerk was positive in her testimony that she prepared three notices of the hearing, one for each lawyer involved in the case, and that they were all properly mailed. None of the letters were returned and all other counsel received their notices.
In effect, counsel made the deputy clerk his agent for the purpose of presenting the controverting plea to the trial judge and procuring a date for the hearing thereon. It was plaintiff's duty to secure the hearing. 1 R. McDonald, Texas Civil Practice § 4.52, at 604 (Rev. Vol. 1965), and cases therein cited. Counsel now complains that because his agent failed to mail him a notice, the trial court erred in proceeding with the hearing as originally scheduled. We are not favorably impressed with the contention but do not rest our decision upon this fact alone.
As the only witness appearing in behalf of the plaintiff upon the hearing of the motion to vacate the order sustaining the plea of privilege, counsel was an interested witness and the trial court was the sole judge of the credibility of the witnesses and of the weight to be given to their testimony. Counsel testified that he did not receive the notice; all other counsel received their notices and the clerk's testimony was positive and direct. A fact issue was presented and determined adversely...
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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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...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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...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......