Harper v. FMC Corp.

Court of Appeals of Texas

Harper v. FMC Corp.

407 S.W.2d 854, 1966 Tex. App. LEXIS 2526

CourtCourt of Appeals of Texas

DecidedSeptember 29, 1966

DocketNo. 4526

StatusPublished

Cited by1 cases

This text of 407 S.W.2d 854 (Harper v. FMC Corp.) 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.

Bluebook

Harper v. FMC Corp., 407 S.W.2d 854, 1966 Tex. App. LEXIS 2526 (Tex. Ct. App. 1966).

Pincite

Opinion

OPINION

WILSON, Justice.

In this plea of privilege appeal we hold that plaintiff failed to prove the essential venue fact under Subd. 4, Art. 1995, Vernon’s Ann.Civ.St., that it had a cause of action against the resident defendant.

The suit was on a sworn account, as authorized by Rule 185, Texas Rules of Civil Procedure, against an alleged partnership and its partners, two of whom are nonresident appellants. The only evidence to show a cause of action is an affidavit incorporating a number of invoices directed to “Chambers Creek Farms.” A regional manager of plaintiff corporation testified he was familiar with plaintiff’s books and records, that the list of invoices totalled the amount sued for, and they were prepared under his supervision from defendants’ records kept in the regular course of business. It is not contended the invoices were established under the Texas Shopbook rule or business records act, Art. 3737e, V.A.C.S.

The affidavit is hearsay, is inadmissible, and even absent objection to its [855]*855admissibility is not evidence of probative force to establish the alleged debt. McCormick & Ray, Texas Law of Evidence, Sec. 787 ; 24 Tex.Jur.2d, Sec. 573, p. 89.

Reversed and remanded.

Free access — add to your briefcase to read the full text and ask questions with AI

OPINION

WILSON, Justice.

In this plea of privilege appeal we hold that plaintiff failed to prove the essential venue fact under Subd. 4, Art. 1995, Vernon’s Ann.Civ.St., that it had a cause of action against the resident defendant.

The suit was on a sworn account, as authorized by Rule 185, Texas Rules of Civil Procedure, against an alleged partnership and its partners, two of whom are nonresident appellants. The only evidence to show a cause of action is an affidavit incorporating a number of invoices directed to “Chambers Creek Farms.” A regional manager of plaintiff corporation testified he was familiar with plaintiff’s books and records, that the list of invoices totalled the amount sued for, and they were prepared under his supervision from defendants’ records kept in the regular course of business. It is not contended the invoices were established under the Texas Shopbook rule or business records act, Art. 3737e, V.A.C.S.

The affidavit is hearsay, is inadmissible, and even absent objection to its [855]*855admissibility is not evidence of probative force to establish the alleged debt. McCormick & Ray, Texas Law of Evidence, Sec. 787 ; 24 Tex.Jur.2d, Sec. 573, p. 89.

Reversed and remanded.

Cite This Page — Counsel Stack

Bluebook (online)

407 S.W.2d 854, 1966 Tex. App. LEXIS 2526, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harper-v-fmc-corp-texapp-1966.

Opinion

Related

Cite This Page — Counsel Stack