Opinion
No. 6693.
Decided July 22, 1936.
Appeal and Error — Plea of Privilege — Venue.
The requirement that a controverting affidavit to a plea of privilege must set out the fact or facts relied upon to confer venue is not complied with by a general allegation that the court has venue by virtue of a given exception in the statute.
Error to the Court of Civil Appeals for the Fifth District, in an appeal from Dallas County.
Suit by Texlite, Incorporated, against Pecos Mercantile Company to recover monthly rentals on two electric signs manufactured by the Texlite company for a company known as the "Grissom-Robertson Stores, Incorporated," operating stores in the towns of Plainview and Lubbock, Texas, which stores were purchased by the Pecos Mercantile Company under the Bulk Sales Law. After said purchase the Pecos Mercantile Company, in compliance with the terms of the Bulk Sales Statute notified the Texlite company of said purchase and stated that "it also assumes all current obligations of the stores at Plainview and Lubbock" which language plaintiff alleges was an assumption of the contracts for monthly rentals of the electric signs. The suit having been filed in the District Court of Dallas County, Texas, the defendant, the Pecos Mercantile Company, filed a plea of privilege for the case to be removed to the District Court of Reeves County, Texas, to which plea plaintiff filed a controverting affidavit. The plea of privilege was overruled and upon trial judgment was entered for plaintiffs. Said judgment was reversed and remanded by the Court of Civil Appeals ( 65 S.W.2d 811) with instruction to transfer said cause to the District Court of Reeves County, Texas, and plaintiff has brought error to the Supreme Court.
The case was referred to the Commission of Appeals, Section A, for their opinion thereon and the Supreme Court adopted same and ordered judgment entered in accordance therewith.
The judgment of the Court of Civil Appeals is affirmed.
Leake, Henry Young and Hawkins Golden, all of Dallas, for plaintiff in error.
Wagstaff, Harwell, Wagstaff Douthit, of Abilene, for defendant in error.
The Court of Civil Appeals has correctly decided this case. For its opinion see Pecos Mercantile Co. v. Texlite, Inc., 65 S.W.2d 811. The only question decided by that court was one of venue. We have examined the controverting plea to the plea of privilege and find that it is insufficient to present any issue of estoppel or fraud. It is true that in Paragraph 4 of the plea it is stated that the court has venue by virtue of Article 1995, Subdivisions 5 and 7, but the specific allegations of fact all relate to Subdivision 5 and no facts are alleged under which venue could be sustained under Subdivision 7. Subdivision 5, in substance, provides that suit may be brought in the county in which the defendant has contracted in writing to perform an obligation. Subdivision 7 provides that suit may be brought in the county in which fraud is committed.
It is required by Article 2007 that the controverting plea set out specifically the fact or facts relied upon to confer venue of the cause on the court where same is pending. This requirement is not met by a general allegation that the court has venue in virtue of a given exception. Coalson v. Holmes, 111 Tex. 509, 240 S.W. 896; World Co. v. Dow, 116 Tex. 146, 287 S.W. 241; Richardson v. Cage Co., 113 Tex. 152, 252 S.W. 747; Duffy v. Cole Petroleum Co., 5 S.W.2d 495.
The controverting plea is sufficiently specific to present the issue of whether the defendant in error contracted in writing to perform an obligation in the county in which this suit was instituted. That is the only question properly presented for decision and, since the holding of the Court of Civil Appeals thereon meets with our approval, no reason is perceived for writing further upon it. We discern no conflict between that holding and the holding of the San Antonio court in Hart v. Wynne, 40 S.W. 848, relied upon by plaintiff in error.
The judgment of the Court of Civil Appeals will be affirmed.
Opinion adopted by the Supreme Court July 22, 1936.