McDonald v. Finley

328 S.W.2d 919, 1959 Tex. App. LEXIS 2173

• Court: Court of Appeals of Texas
• Decided: October 29, 1959
• Docket: No. 3685
• Status: Published

Opinion

WILSON, Justice.

This is an appeal by defendant from an order sustaining his own plea of privilege. Plaintiff filed suit in Henderson County against defendant, a resident of Smith County, for damages resulting from an automobile collision occurring “near Spring, Texas” in a county not named in the petition. Defendant’s plea of privilege in prescribed form alleged his residence in Smith County. He pleaded the accident occurred in Montgomery County and that since plaintiff had sued where venue did not lie, the latter waived the right to determine the county to which transfer should be made. He prayed that the “cause be transferred to Montgomery County, Texas, or in the alternative, to Smith County, Texas.” No controverting plea having been filed, the court ordered the cause transferred to Smith County, where defendant resided.

Defendant now says the court should have transferred to Montgomery County. His contentions are overruled. Had the trial court done this, he could complain with his present reasoning that transfer should be to the county of his residence. The court properly exercised the option tendered by the pleadings. Judgment affirmed.