Opinion
No. 3799.
November 10, 1960.
Appeal from the District Court, Harris County, Thomas J. Stovall, Jr., J.
McCullough, Mortensen Murray, Harlingen, Stafford, Atlas Spilman, McAllen, for appellants.
Franklin R. Navarro, Houston, for appellee.
Appeal from order overruling pleas of privilege in an action for debt. One nonresident defendant filed an answer. Appellee controverted appellants' pleas of privilege by pleading the provisions of Subd. 29a of Art. 1995, Vernon's Ann.Civ.Stats., and alleging that the suit was properly maintainable in the county of suit against one defendant, and appellants were necessary parties to the action.
Appellants say there is nothing in the record to show they were necessary parties. We find nothing. Appellee had the burden of establishing this venue fact by independent evidence. Allegations in the petition alone (even if it had been made a part of the controverting plea) would not establish this essential venue fact. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758.
Judgment is reversed and here rendered sustaining the pleas of appellants, and the cause as to them is ordered transferred. Appellee's motion to strike brief is overruled.