Fruge v. Vitopil

Court of Appeals of Texas

Fruge v. Vitopil

147 S.W.2d 519

CourtCourt of Appeals of Texas

DecidedJanuary 23, 1941

DocketNo. 2275.

StatusPublished

This text of 147 S.W.2d 519 (Fruge v. Vitopil) 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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Fruge v. Vitopil, 147 S.W.2d 519 (Tex. Ct. App. 1941).

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Opinion

RICE, Chief Justice.

Appellant appeals from an order of the district court of Brazos county overruling his plea of privilege to be sued in Plarris 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.

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RICE, Chief Justice.

Appellant appeals from an order of the district court of Brazos county overruling his plea of privilege to be sued in Plarris 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.

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147 S.W.2d 519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fruge-v-vitopil-texapp-1941.

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