Snyder v. Johnson

237 S.W.2d 740, 1950 Tex. App. LEXIS 1830

• Court: Court of Appeals of Texas
• Decided: November 20, 1950
• Docket: 6111
• Status: Published

Opinions

LUMPKIN, Justice.

This is an appeal from an order overruling a plea of privilege. The parties.will be designated as they were in the trial court. Defendants attack the trial court’s judgment on the sole ground that the pleadings and evidence are insufficient to support it. : ■:

• - The plaintiff, Robert Earl Johnson, sued the defendants, Cecil Snyder and Sam Parker, in the district court of Dallam County, Texas, for the alleged breach of an oral contract. The plaintiff asked for damages in the sum of $3,015.93. In the same suit, but as a distinct cause of action, the plaintiff sued the defendants for the conversion of $810.28. The plaintiff’s original' petition was filed on September 17, 1949.

The plaintiff alleged that the defendants were partners engaged in the building of houses; that Sam Parker was domiciled in Wilbarger County, while Cecil Snyder was a resident of Dallam County; that he entered into a contract with the defendants for the construction of a house in Hartley County; that the defendants did not satisfactorily perform the services agreed upon; that because a difference arose between them, the plaintiff finally paid the defendants $200 to get them off the job but through error overpaid them $810.28.

The defendants filed a plea of privilege in which they alleged they were each residents of Wilbarger County. The. plaintiff controverted' the plea of privilege by an affidavit in which he stated that Cecil Snyder was a resident of Dallam County, Texas, within the meaning of Subdivision 4 of the venue statute, Article 1995, Ver-nop’s Annotated Civil Statutes; that Sam Parker was a resident of Wilbarger County; that both men were proper parties to the suit under Subdivision 4; that by reason of Cecil Snyder’s residence in Dallam County, the suit could be maintained in that county under Subdivision 29a of the venue statute; and that, by the conversion of $810.28, the defendants had committed a crime or trespass in Dallam County and for that reason the suit could be maintained in Dallam County under Subdivision 9.

The defendants specially excepted to all of the controverting affidavit on the grounds that the allegations contained in it were - conclusions and that it did not specifically set out the fact or facts relied upon to confer venue in Dallam County. The defendants further excepted to the controverting affidavit' because, they alleged, there are conflicts between the petition and the affidavit and because the affidavit attached to the controverting plea is not sufficient in law to make the allegations of. the petition a part of the controverting affidavit. After a hearing before the court without a jury the defendants’ plea of privilege was overruled. The defendants excepted to the court’s ruling and in due time perfected their appeal to this court.

The defendants contend that the trial court erred in overruling the defendants’ special exceptions to the plaintiff’s controverting affidavit. They insist that plaintiff’s affidavit, as required by Rule 86, Texas Rules of Civil Procedure, does not specifically set forth the grounds on which he seeks to maintain venue in Dallam County.

Our courts have held that where a defendant files a plea of privilege, it must appear unmistakably that the one who swore to plaintiff’s controverting plea has verified the whole instrument. If the original petition becomes a part of the controverting plea by reference or by adoption by the pleader, the affiant must likewise definitely swear to the truth of facts alleged in it. C. F. Lytle Co. v. Preston, Tex.Civ.App., 175 S.W.2d 440; A. H. Belo Corporation v. Blanton, 133 Tex. 391, 129 S.W.2d 619.

In this case the plaintiff by his controverting affidavit seeks to maintain venue in Dallam County under Subdivisions 4, 9 and 29a, Article 1995, Vernon’s Annotated Civil Statutes. Attached to the controverting affidavit are copies of the plaintiff’s original and first amended petitions, which are made a part of the controverting plea in the following language: "Plaintiff attaches hereto a carbon copy of plaintiff’s original petition filed in this cause and marks the same Exhibit A, and plaintiff attaches hereto a carbon copy of plaintiff’s first original amended petition filed herein and marks the same Exhibit B, and here now incorporates each and both of said Exhibits A and B into this controverting affidavit as fully and completely as if copied herein verbatim and makes each and both of the same a part of this controverting affidavit.”

In our opinion this language is sufficient to make the plaintiff’s original petition and his first amended petition a part of his controverting plea. In Cogdell v. Martin, 176 S.W.2d 982, 984, the Fort Worth Court of Civil Appeals said: “It has long been the recognized rule of procedure in this state that the controverting affidavit may adopt the petition as a part thereof and in such instances it becomes a part of the affidavit and need not be copied therein. Rule 58 Texas Rules of Civil Procedure; Bates v. Stinnett, Tex.Civ.App., 170 S.W.2d 644, and the older cases there cited.”

The defendants likewise insist that the affidavit purporting to verify the controverting plea is not sufficiently broad to cover the allegations contained in the plaintiff’s original petition and in his first amended petition. To the controverting plea the following jurat is attached: “Before me, the undersigned authority, on this day personally appeared Robert Earl Johnson, who on his oath stated that he is plaintiff in the above entitled and numbered cause, and that the allegations, denials and facts set out in the foregoing controverting plea, and in Exhibits A and B, attached to said controverting plea, are all true and correct.” Since the petitions were made a part of the controverting affidavit, the affiant swore to the whole plea. This is all that is required by the law. Cogdell v. Martin, supra; Evans v. Jeffrey, Tex.Civ.App., 181 S.W.2d 709; Spencer v. Gray, Tex.Civ.App., 209 S.W.2d 651.

The requisites of a plea of privilege are set forth in Rule 86, Texas Rules of Civil Procedure. Under this rule a plea of privilege is prima facie proof of the defendant’s right to a change of venue unless the plaintiff shall “file a controverting plea under oath, setting out specifically the grounds relied upon 'to confer venue of such cause on the court where the cause is pending.” It has been observed that the plea of privilege is a creature of the law enacted for.the benefit -of the defendant; only the exceptions are for the benefit of the plaintiff. As against a defendant’s plea of privilege, and before he can be deprived of the right of trial in the county of his domicile, the plaintiff, must plead and prove that his cause comes within one or more of the exceptions to the venue statute. , In the case of A. H. Belo Corporation v. Blanton, supra, 129. S.W.2d at page 622, the Supreme Court said .“that the plaintiff in his controverting affidavit * * * must allege, either in the controverting affidavit or by a specific reference to and adoption of allegations 'in his petition, sufficient facts as venue facts upon which the alleged cause of action is sought to be maintained.”

In order to establish venue in Dal-lam County, plaintiff is required to prove venue in such county only by a preponderance of the evidence to the satisfaction of the trial court; a jury having been waived. It is unnecessary for us to pass upon each of the exceptions relied upon by the plaintiff to maintain venue in said county. We therefore express no opinion upon the effect of either the pleadings or the evidence relating to the exceptions found in Subdivisions 9 and 29a of the venue statute. We believe that the nature of plaintiff’s action and the evidence offered are sufficient under Subdivision 4 to sustain the trial court’s judgment overruling the defendants’ plea of privilege. Eppenauer v. Schrup, Tex.Civ.App., 121 S.W.2d 473; Central Motor Co. v. Roberson, Tex.Civ.App., 139 S.W.2d 287; American Seed Co. v. Wilson, Tex.Civ.App., 140 S.W.2d 269; Super-Cold Southwest Co. v. Green & Romans, Tex.Civ.App., 185 S.W.2d 749.

The pertinent portion of Subdivision 4 reads as follows: “4. Defendants in different counties. — If tw.o or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. * * * ” There is no question but that Sam Parker resided in Wilbarger County. In order to maintain' venue in Dallam 'County under Subdivision 4, the plaintiff must have a bona fide cause of action against the resi-'defit defendant, as well as against the non1 resident. This essential cause of action must be pleaded, and the cause alleged against the resident defendant must be supported by proof when placed in issue by the plea of privilege. Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347, 353. We do not consider it necessary to set forth in detail the plaintiff’s allegations as found in his original and first amended petitions. He named as defendants individually and as partners Cecil Snyder, a resident of Dallam' County, and Sam Parker, a resident of Wilbarger County. He alleged that the parties had entered into an oral agreement to construct a part of plaintiff’s home, which was located at Dalhart, Hartley County, Texas. (The City of Dalhart is partly in Hartley County and partly in Dallam County). The plaintiff alleged that he was to pay the defendants, $8,989.72 for the performance of their part of the agreement and that although he had performed his part of the agreement, the defendants had failed to comply with their part. In his petition the plaintiff set forth the particulars in which the defendants had failed to fulfill the agreement. He pleaded that instead, of paying the defendants the sum of $8,989.72, as agreed between the parties, he had paid them the sum of $9,800, or $810.28 more than they were entitled to. The plaintiff pleaded that the defendants had converted the $810.28 to their own use. He alleged damages in the total amount of $3,-826.21. The foregoing is a summary of the nature of plaintiff’s causes of action alleged against both defendants.

The defendants insist that the trial court erred in admitting evidence on the question of venue because of the insufficiency of plaintiff’s pleadings. We think the facts alleged in the controverting plea were sufficient to permit the introduction of evidence; and, in our opinion, the evidence is sufficient to establish a ground of venue as alleged by the plaintiff in his controverting plea and in his original and first amended petitions.

In a venue case the reviewing court must observe the same rules in examining the evidence as it would in any other case on appeal. Every disputed issue raised by the evidence must be resolved in favor of the trial court's judgment. It is well-settled that a trial court’s findings will not be disturbed by an appellate court where there is some evidence of probative force to support them, even though the evidence is conflicting and the appellate court possibly might have reached a different conclusion. In considering the sufficiency of the evidence to sustain the findings, the reviewing court must disregard all adverse evidence and consider only the favorable evidence, indulging every legitimate conclusion in favor of the findings. It will be presumed that a trial court found the facts necessary to support the judgment entered. Rogers v. Fort Worth Poultry & Egg Co., Tex.Civ.App., 185 S.W.2d 165; 3 Tex.Jur. 1090. Therefore, disregarding all evidence to> the contrary, we shall examine the testimony and determine whether there is sufficient evidence to sustain the implied finding of the trial court to the effect that Cecil Snyder was a resident of Dallam County within the meaning of Subdivision 4 at the time this cause was filed. It should be remembered that the defendants do not complain about the admissibility of any evidence, but they charge only that the evidence heard as a whole is insufficient to support the trial court’s findings.

Co-defendant, Sam Parker, testified in effect that he and defendant, Snyder, had been engaged, in. a joint enterprise in Dallam County for approximately two years and that Snyder had been in Dallam County supervising the work considerably more than the witness had; that their ' headquarters were ip Wilbarger County, but that Snyder was up there most of the two years they were doing work in Dallam County and adjoining counties and that during such period of time Srlyder lived in Dallam County. He further testified that they were then constructing in Dallam County a building in which the partners owned an interest. The defendant, Cecil Snyder, testified in effect that in June of 1948 he and Parker had contracted to build approximately twenty-five dwellings and commercial buildings in the. vicinity of Dalhart, Dallam County; that he' had lived in Dalhart since that time except for trips to Wilbarger County. The plaintiff, Robert Earl Johnson, testified that the defendant Snyder had resided in Dalhart, Dallam County, since June 10, 1948, and the plaintiff’s wife stated that Snyder had lived in Dallam County from the time he had commenced construction of her home and that he had remained and lived there from that time to May 25, 1950, the date of the trial. The question of where Snyder maintained his residence was an issue of fact for the trial court, which found the evidence adequate to support its implied finding that Snyder’s residence was located in Dallam County. We find sufficient evidence to support the trial court’s judgment. Bolton v. Alley, Tex.Civ.App., 25 S.W.2d 638.

In support of their contentions, defendants cite the case of Page v. Kilgore, Tex.Civ.App., 181 S.W.2d 730, a comparatively recent case by Chief Justice Rice of the Waco Court of. Civil Appeals. In that case the plaintiff sought to maintain venue in McLennan County. The trial court found that defendant had resided in Travis County but that McLennan County had venue under Subdivision 9 of Article 1995 because of the commission of an offense in that county. The judgment was reversed by the appellate court on the ground that no such offense was committed, and the cause of action was ordered transferred to Travis County. Nevertheless, plaintiff maintained his point on appeal and urged that defendant had maintained a residence for venue purposes in McLennan County. In passing on the question the appellate court held that the evidence was sufficient to support a finding either for or against plaintiff’s contentions, but in as much as the trial court had found against plaintiff on the issue, the appellate court was not authorized to disturb the finding. The reviewing court states the evidence in substance as follows: Defendant Page had been married and had lived with his wife-for thirty years; since 1928 they had maintained their residence in Travis County and had not resided anywhere else. Page had temporary business in McLen-nan County and maintained a room at the Roosevelt Hotel in Waco but went back to Austin, where his wife lived all the time, two or three times a week; sometimes he would be gone from the Roosevelt Hotel for three weeks at a time. He traveled a great deal — 70,000 miles during the previous year; Page’s wife had never spent one night with him at the Roosevelt Hotel in Waco. Page and his wife both paid their poll tax.and voted in Travis County; his residence was listed in the telephone directory in Austin, Travis County. Upon this statement of facts, the reviewing court held that the evidence would have supported a trial court finding to the effect that Page resided in McLennan County for venue purposes if the trial court 'had so found. The case at bar is a much stronger fact case than the Page-Kilgore case.

The Commission of Appeals held in the case of Pittsburg Water Heater Co. of Texas v. Sullivan, 115 Tex, 417, 282 S.W. 576, that a person may have but one domicile; that he may.have several residences, and he is suable, in any one of such places of residence.

The reviewing court held in a case similar to the one at bar, Wrenn v. Brooks, Tex.Civ.App., 257 S.W. 299, that the issue of residence is a question’ of fact and the trial court’s finding in such a matter cannot be disturbed if there is sufficient evidence to support it.

In order to maintain venue under Subdivision 4, over a non-resident defendant, the plaintiff must show that the non-resident defendant is a proper or necessary party, and if he can, then venue may be maintained against the non-resident defendant solely on the ground of the residence of his co-defendant. Henderson Grain Co. v. Russ, supra. A reading of the plaintiff’s petitions reveals that this suit was brought against the defendants jointly and severally. Both defendants are jointly and severally liable. Both are necessary parties. Yantis v. Gilliam, Tex.Civ.App., 62 S.W.2d 173; American Seed Co. v. Wilson, supra; Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300.

We have carefully examined the record in this case and the assignments of error. In our opinion the record justifies the trial court in finding and concluding that plaintiff discharged the burden of pleading arid proving that venue should be maintained in Dallam County under Subdivision 4 of the venue statute; therefore, it did not err in overruling the defendants’ plea of privilege. All of the defendants’ points of error are overruled; the judgment of the trial court is affirmed.