Duncan v. White

319 S.W.2d 346, 1958 Tex. App. LEXIS 1650

• Court: Court of Appeals of Texas
• Decided: December 12, 1958
• Docket: No. 3414
• Status: Published

Opinion

GRISSOM, Chief Justice.

E. F. White, Jr., et al. sued James Duncan et al. for damages caused by an alleged breach of a contract to complete an oil well as a producer, which well the Duncans drilled and plugged in Taylor County. The Duncans filed a plea of privilege to be sued in Howard County, where they reside. The plea of privilege was overruled and the Duncans have appealed.

Appellants’ sole point is, in effect, that they cannot be sued in Taylor County because they were not obligated to complete the well or, in other words, because they are not liable and no cause of action exists. We are constrained to hold that said point is pertinent only to the merits.

Our Supreme Court expressly held in Petroleum Producers Company v. Steffens, 139 Tex. 257, 162 S.W.2d 698, 699, that proof of the existence of the cause of action alleged is not required to sustain venue under exception 5, Article' 1995, Vernon’s Ann.Civ.St., under which exception venue was sustained in Taylor County in this case. The same holding was made by our Supreme Court in Farmers’ Seed & Gin Company v. Brooks, 125 Tex. 234, 81 S.W.2d 675, 678, and Bradley v. Trinity State Bank, 118 Tex. 274, 14 S.W.2d 810, 811. (In this connection we respectfully call attention to the following cases: Riddle v. Lanier, 136 Tex. 130, 145 S.W.2d 1094; Golston v. Bartlett, Tex.Civ.App., 112 S.W.2d 1077, 1080; Cotherman v. Oriental Oil Co., Tex.Civ.App., 272 S.W. 616; Empire Gas & Fuel Co. v. Pendar, Tex.Civ.App., 244 S.W. 184 (Dis.W.J.) ; Logan v. Elliott, Tex.Civ.App., 61 S.W.2d (Writ Dis.) and Golden West Oil Co. No. 1 v. Golden Rod Oil Co. No. 1, Tex.Civ.App., 285 S.W. 631, 633, affirmed, Tex.Com.App., 293 S.W. 167.)

Appellants' point must be overruled. The judgment is affirmed.

WALTER, J., disqualified and not sitting.