Anderson v. Huie

Court of Appeals of Texas

Anderson v. Huie

266 S.W.2d 410, 1954 Tex. App. LEXIS 2023

CourtCourt of Appeals of Texas

DecidedFebruary 26, 1954

Docket14780

StatusPublished

Cited by7 cases

This text of 266 S.W.2d 410 (Anderson v. Huie) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Anderson v. Huie, 266 S.W.2d 410, 1954 Tex. App. LEXIS 2023 (Tex. Ct. App. 1954).

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DIXON, Chief Justice.

This is an appeal from an order sustaining a plea of privilege.

Appellant, as plaintiff, sued appellee as defendant, both individually and as independent executrix of the estate of Morris C. Huie, deceased, for services rendered as her attorney. Defendant is also sole beneficiary under the terms of the will of deceased. Plaintiff controverted defendant's plea of privilege to .be sued in 'Cherokee County, her place of residence, on the ground that his suit is against an executrix as such, hence under Art. 1995, subd. 6, V. A.T.S. .may be brought, in the county in which such estate is administered, which is Dallas County.

It is well settled that in order to maintain venue' a plaintiff need prove only the “venue facts.” Piazza v. Phillips, Tex. Sup., 264 S.W.2d 428; National Life Co. v. Rice, 140 .Tex. 315, 167 S.W.2d 1021 (opinion adopted); 43 Tex.Jur. 844. What are “venue facts” must be determined in each case by reference to the particular subdivision of Art. 1995 on which plaintiff is relying. National Life Co. v. Rice, supra. There are some exceptions to the venue statute which in their nature require a greater quantum of proof to establish venue than others. 9 Ten Year Supp.Tex.Jur. (1953 Pocket Supp. p. 232). For ex ample, our Supreme Court has held that if the plaintiff is relying on subdivision'23, the “venue facts” include all the elements necessary to show (1) a good cause of action, and (2) that the cause of action arosé in the county where plaintiff filed his suit; and they must be proved in the usual way, that is, by a preponderance of the evidence. Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63. On the other hand our Supreme Court has held that if. plaintiff is relying on subdivision 14 of the statute he must prove as venue facts only (1) that his suit, as evidenced by his petition, is one for the recovery of land, or damages thereto, and (2) that the land lies in the, county where suit was filed. Piazza v. Phillips, supra; Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69.

We have not been cited to a case and we know of none which states the rule concerning the, quantum of proof necessary under subdivision 6, of Art. 1995 V.A.T.S. But the wording of the subdivision convinces us that in this respect it is analogous to subdivision 14 rather than to subdivision 23. Accordingly we hold that plaintiff has sufficiently proved his “venue facts” under subdivision 6 if he proves by a preponderance of the evidence that (1) his suit is against an executrix as such to establish a money demand against the estate and (2) the suit was brought, in the county in which the estate is administered. Clark, “Venue in Civil Actions in Texas” (page 50).

In the case now before us the petition shows that plaintiff’s suit, in part at least, is against an executrix as such to establish a money demand against the estate. This meets the requirements as to “venue fact” No. (1) as.above set out. But we think plaintiff has failed to meet the requirements as to the quantum of proof necessary to support “venue fact” No. (2) He has failed to discharge the burden that was on him to prove that the estate was still being administered at the time suit was filed. on April 25, 1953. Subdivision 6 of the venue statute uses the present tense: “* "* * suit may be brought in the county in which such estate is administered.” (Emphasis supplied.) Defendant claims that the estate was no longer under administration. Though the record is not entirely clear on the point, the evidence tends to show that the assets of the estate had been distributed and the estate as such had been closed. The trial court, did not file findings of fact. In the absence of express findings we must presume' the court made such findings, if they have support in the record, as are necessary to support the judgment rendered. Certain[412]*412ly the record before us will easily support the presumed finding of the trial court that the plaintiff failed to discharge the burden on him to prove that the estate was still under administration at the time plaintiff filed his suit.

The judgment of the trial court is affirmed., .

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DIXON, Chief Justice.

This is an appeal from an order sustaining a plea of privilege.

Appellant, as plaintiff, sued appellee as defendant, both individually and as independent executrix of the estate of Morris C. Huie, deceased, for services rendered as her attorney. Defendant is also sole beneficiary under the terms of the will of deceased. Plaintiff controverted defendant's plea of privilege to .be sued in 'Cherokee County, her place of residence, on the ground that his suit is against an executrix as such, hence under Art. 1995, subd. 6, V. A.T.S. .may be brought, in the county in which such estate is administered, which is Dallas County.

It is well settled that in order to maintain venue' a plaintiff need prove only the “venue facts.” Piazza v. Phillips, Tex. Sup., 264 S.W.2d 428; National Life Co. v. Rice, 140 .Tex. 315, 167 S.W.2d 1021 (opinion adopted); 43 Tex.Jur. 844. What are “venue facts” must be determined in each case by reference to the particular subdivision of Art. 1995 on which plaintiff is relying. National Life Co. v. Rice, supra. There are some exceptions to the venue statute which in their nature require a greater quantum of proof to establish venue than others. 9 Ten Year Supp.Tex.Jur. (1953 Pocket Supp. p. 232). For ex ample, our Supreme Court has held that if the plaintiff is relying on subdivision'23, the “venue facts” include all the elements necessary to show (1) a good cause of action, and (2) that the cause of action arosé in the county where plaintiff filed his suit; and they must be proved in the usual way, that is, by a preponderance of the evidence. Victoria Bank & Trust Co. v. Monteith, 138 Tex. 216, 158 S.W.2d 63. On the other hand our Supreme Court has held that if. plaintiff is relying on subdivision 14 of the statute he must prove as venue facts only (1) that his suit, as evidenced by his petition, is one for the recovery of land, or damages thereto, and (2) that the land lies in the, county where suit was filed. Piazza v. Phillips, supra; Cowden v. Cowden, 143 Tex. 446, 186 S.W.2d 69.

We have not been cited to a case and we know of none which states the rule concerning the, quantum of proof necessary under subdivision 6, of Art. 1995 V.A.T.S. But the wording of the subdivision convinces us that in this respect it is analogous to subdivision 14 rather than to subdivision 23. Accordingly we hold that plaintiff has sufficiently proved his “venue facts” under subdivision 6 if he proves by a preponderance of the evidence that (1) his suit is against an executrix as such to establish a money demand against the estate and (2) the suit was brought, in the county in which the estate is administered. Clark, “Venue in Civil Actions in Texas” (page 50).

In the case now before us the petition shows that plaintiff’s suit, in part at least, is against an executrix as such to establish a money demand against the estate. This meets the requirements as to “venue fact” No. (1) as.above set out. But we think plaintiff has failed to meet the requirements as to the quantum of proof necessary to support “venue fact” No. (2) He has failed to discharge the burden that was on him to prove that the estate was still being administered at the time suit was filed. on April 25, 1953. Subdivision 6 of the venue statute uses the present tense: “* "* * suit may be brought in the county in which such estate is administered.” (Emphasis supplied.) Defendant claims that the estate was no longer under administration. Though the record is not entirely clear on the point, the evidence tends to show that the assets of the estate had been distributed and the estate as such had been closed. The trial court, did not file findings of fact. In the absence of express findings we must presume' the court made such findings, if they have support in the record, as are necessary to support the judgment rendered. Certain[412]*412ly the record before us will easily support the presumed finding of the trial court that the plaintiff failed to discharge the burden on him to prove that the estate was still under administration at the time plaintiff filed his suit.

The judgment of the trial court is affirmed., .

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266 S.W.2d 410, 1954 Tex. App. LEXIS 2023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-huie-texapp-1954.

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