Opinion
No. 2275.
January 23, 1941.
Appeal from District Court, Brazos County; W. C. Davis, Judge.
Action by Martha Vitopil against Paul Fruge. From an order overruling a plea of privilege, defendant appeals.
Reversed and remanded.
Lewis Ingram, of Houston, for appellant.
J. G. Minkert, of Bryan, for appellee.
Appellant appeals from an order of the district court of Brazos county overruling his plea of privilege to be sued in Harris county, where he resided.
Upon the hearing by the court of the issue of venue appellee offered no evidence; and agreed in open court that the residence of appellant at the time of the filing of this cause and at the time of the presentation of the plea of privilege was Houston, Harris county, Texas.
Appellant assigns error to the action of the court in overruling his plea of privilege, in that no proof was made by appellee of the facts set out in her controverting affidavit, and she failed to discharge the burden of proof cast upon her by law.
We sustain this assignment. The burden rested upon appellee to establish by a preponderance of the evidence introduced on the hearing the facts upon which she relied to sustain venue in Brazos county. She offered no evidence. 43 Tex.Jur. 851, sec. 112; Curlee Clothing Co. v. Wickliffe, 126 Tex. 573, 91 S.W.2d 677.
Because it is apparent that this case was not developed in the trial court, it is our opinion that it should be remanded for a further hearing. Lanford v. Smith, Chief Justice, 128 Tex. 373, 99 S.W.2d 593.
The judgment of the trial court is reversed and the cause remanded.