Opinion
No. 3713.
May 30, 1929.
Appeal from District Court, Rusk County; R. T. Brown, Judge.
Action by R. B. Bearden against Charles O. Austin, Banking Commissioner, and others. From judgment overruling plea of privilege, defendants appeal. Reversed and rendered.
The suit was by appellee R. B. Bearden as plaintiff against Hall Wood and appellants Chas. O. Austin and the American Surety Company of New York, a corporation, as defendants. It was for damages in the sum of $5,017.16, and was commenced in the district court of Rusk county, where appellee resided. The appeal is from a judgment overruling a statutory "plea of privilege" (article 2007, R.S. 1925), by appellants, in which they claimed a right to be sued in Travis county, where, they alleged, appellant Austin resided and the appellant surety company had its principal place of business. Appellee controverted appellants' said plea, claiming the suit was maintainable in Rusk county under the fourth, seventh, and twenty-seventh exceptions to the provision in article 1995, R.S. 1925, that "no person who is an inhabitant of this state shall be sued out of the county in which he has his domicile." Of the exceptions specified, two, claimed to be applicable to the appellant Austin, are as follows: "4. If two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. * * * 7. In all cases of fraud and defalcation of public officers, suit may be brought in the county in which the fraud was committed or defalcation occurred or where the defendant has his domicile." The other one of the three, claimed to be applicable to the appellant surety company, is as follows: "27. Foreign corporations, private or public, joint stock companies or associations, not incorporated by the laws of this state, and doing business within this state, may be sued in any county where the cause or a part thereof accrued, or in any county where such company may have an agency or representative, or in the county in which the principal office of such company may be situated; or, when the defendant company has no agent or representative in this state, then in the county where the plaintiffs, or either of them, reside." The statute (said article 2007) required appellee's controverting plea to be under oath and to set out specifically "the fact or facts (quoting) relied upon to confer venue of such cause on the court where the cause is pending." Appellants excepted to the controverting plea on the ground that it was "not verified and sworn to (quoting) in the manner prescribed by law." The exception was overruled by the court, and his action in doing so was assigned by appellants as error, but they are in the attitude of having waived the assignment by not presenting it in their brief. At the trial appellee offered no evidence in support of the allegations, or any of them, in his controverting plea. The only evidence adduced at the hearing on the plea of privilege was: (1) The testimony of appellant Austin as a witness that he had never resided in Rusk county, and that he was a resident of Travis county at the time the suit was filed and ever afterward; and (2) a copy of said appellant Austin's bond as banking commissioner of the state of Texas, with the appellant surety company as surety, dated January 20, 1925, made as required by article 344, R.S. 1925.
Claude Pollard, Atty. Gen., C. W. True-heart, Asst. Atty. Gen., and Jno. W. Goodwin, Geo. E. Shelley, and Jerome Sneed, Jr., all of Austin, for appellants.
R. T. Jones, of Henderson, for appellee.
Whether appellee in his plea controverting appellants' plea of privilege alleged the existence of facts showing exceptions he invoked to the rule prescribed by article 1995, R.S. 1925, referred to in the statement above, need not be determined, for if he did he failed to prove the existence of such facts. That being true, appellants' third assignment of error, in which they complain of the action of the trial court in overruling their plea of privilege, should be and is sustained. That in the absence of such proof by appellee, appellants' said plea, conforming as it did to the requirements of the statute (article 2007, referred to in the statement above), should have been sustained and the cause transferred to Travis county for trial on its merits, is too well established by repeated decisions of the courts of this state to need further examination and discussion. Hutchison v. R. Hamilton Son (Tex.Civ.App.) 223 S.W. 864; Jaffee v. Walkup (Tex.Civ.App.) 2 S.W.2d 480, and the cases there cited; Elliott Jones Co. v. M. K. Towns Production Co. (Tex.Civ.App.) 283 S.W. 246; Neyland v. Benson (Tex.Civ.App.) 292 S.W. 251; Citizens' Nat. Bank v. Trust Co. (Tex.Civ.App.) 11 S.W.2d 242; Hamlin v. Surety Co. (Tex.Civ.App.) 13 S.W.2d 382; Cloyd v. Sacra (Tex.Civ.App.) 175 S.W. 456; Carver Bros. v. Merrett (Tex.Civ.App.) 184 S.W. 741; Masterson v. O'Fiel (Tex.Civ.App.) 219 S.W. 1117: Strawn Mdse. Co. v. Hay Co. (Tex.Civ.App.) 230 S.W. 1094; Standard Rice Co. v. Broussard (Tex.Civ.App.) 223 S.W. 323; Waxahachie Nat. Bank v. Sigmond Rothschild Co. (Tex.Civ.App.) 235 S.W. 633; Green v. Partin (Tex.Civ.App.) 235 S.W. 646; Nagle v. Weatherby (Tex.Civ.App.) 236 S.W. 509; First Nat. Bank v. Bulls (Tex.Civ.App.) 243 S.W. 577; J. G. Smith Grain Co. v. Shuler (Tex.Civ.App.) 249 S.W. 524; Richardson v. D. S. Cage Co., 113 Tex. 152, 252 S.W. 747; Accidental Oil Mills v. Shoemake (Tex.Civ.App.) 254 S.W. 385; Leach v. Stone (Tex.Civ.App.) 264 S.W. 620; Penix v. Davis (Tex.Civ.App.) 265 S.W. 718; Dallas R. Co. v. Kimberly (Tex.Civ.App.) 268 S.W. 1054; Scott v. Noakes (Tex.Civ.App.) 277 S.W. 735; DeWitt v. Bonding Co. (Tex.Civ.App.) 283 S.W. 588; Moore v. Investment Finance Corporation (Tex.Civ.App.) 299 S.W. 324; Goad Motor Co. v. Yantis (Tex.Civ.App.) 4 S.W.2d 282; Bryan v. Collins (Tex.Civ.App.) 5 S.W.2d 600.
The judgment will be reversed, and judgment will be here rendered sustaining the plea of privilege and directing the clerk of the district court of Rusk county to make up a transcript of all the orders made in the cause, certify thereto under the seal of said court, and then transmit same, with the original papers in the cause, to the clerk of a district court of Travis county. Lewis Knight v. Florence (Tex.Civ.App.) 217 S.W. 1116; Rathburn v. Royal (Tex.Civ.App.) 281 S.W. 851.