Wood v. John Farrell Lumber Co., 3967
| Decision Date | 26 March 1965 |
| Docket Number | No. 3967,3967 |
| Citation | 389 S.W.2d 133 |
| Parties | J. Wesley WOOD, Appellant, v. JOHN FARRELL LUMBER COMPANY, Appellee. |
| Court | Texas Court of Appeals |
Jay S. Fichtner, Dallas, for appellant.
Monning & Monning, Amarillo, for appellee.
John Farrell Lumber Company, a corporation, brought this suit in Potter County against J. Wesley Wood on a promissory note. The defendant filed a plea of privilege to be sued in Smith County the place of his residence. Plaintiff filed a controverting plea claiming venue in Potter County under the provisions of Article 1995, Vernon's Ann.Tex.Civ.St. After a hearing the court overruled the plea of privilege. J. Wesley Wood has appealed.
Appellant J. Wesley Wood presents one point of error contending, in effect, that the court erred in overruling his plea of privilege because the written contract upon which appellee predicates its cause of action does not state that it is payable in Potter County.
It is alleged in appellee's petition that appellant Wood executed and delivered to Amarillo National Bank his promissory note on January 14, 1954 and thereby promised to pay to such bank or its order the sum of $2,875.00 with 6% interest. A copy of the note was attached to appellee's petition and among other things provides that '* * * we, or either of us, promise to pay to the order of the Amarillo National Bank at Amarillo, Texas, Twenty Eight Hundred Seventy Five and no/100 Dollars * * *.'
It was stipulated that Amarillo is the county seat of Potter County, Texas and that the corporate limits of the City of Amarillo include land in both Potter County and Randall County and that Amarillo National Bank is located in the area of Amarillo lying in Potter County. Appellant contends that the fact that Amarillo is the county seat of Potter County is not material or relevant in determining the plea of privilege. Appellee contends that the fact that corporate limits of the City of Amarillo includes land in both Potter and Randall County is not material to determination of the plea of privilege.
Subdivision 5 of Article 1995 provides as follows:
'Contract in writing.--If a person has contracted in writing to perform an obligation in particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.'
Appellant points out that the note sued upon called for payment 'to the Amarillo National Bank or its assignee 'at Amarillo, Texas", but does not designate a 'particular county' of performance. Appellant concedes that generally speaking courts will take judicial knowledge of the fact that the county seat of a county is located in that county. Appellant contends, however, that in the instant case the fact that the City of Amarillo is the county seat of Potter County...
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...of Subdivision 5. See Ladehoff v. Boxwell, Tex.Civ.App., 390 S.W.2d 368 (wr. dis., Tex.Sup., 400 S.W.2d 303); Wood v. John Farrell Lumber Co., Tex.Civ.App., 389 S.W.2d 133 (wr. dis., Tex.Sup., 400 S.W.2d 307; Great Western Loan and Trust Co. v. Montgomery, Tex.Civ.App., 376 S.W.2d 92 (wr. d......
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...in Shipley v. Southwestern Investment Co., Tex.Civ.App., 391 S.W.2d 457 (affirmed, Tex.Sup., 400 S.W.2d 304), and Wood v. John Farrell Lumber Co., Tex.Civ.App., 389 S.W.2d 133 (wr. dis., Tex.Sup., 400 S.W.2d 307). Writs of error were granted in the three cases to enable us to consider them ......
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John Farrell Lumber Company v. Wood, A-10820
...was overruled by the trial court. The Court of Civil Appeals reversed such judgment and ordered the cause transferred to Smith County. 389 S.W.2d 133. (1) Petitioner's application for writ of error was originally dismissed for want of jurisdiction. Thereafter we granted a writ of error in S......