Southern Poultry Processing, Inc. v. Plantation Food, Inc.

638 S.W.2d 256, 1982 Tex. App. LEXIS 5005

• Court: Court of Appeals of Texas
• Decided: August 19, 1982
• Docket: No. 10-82-060-CV
• Status: Published

Opinion

OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Southern Poultry Processing, Inc. from order overruling its plea of privilege to be sued in Harris County.

Plaintiff Plantation Food, Inc. sued defendants Gary W. McKenzie d/b/a McKenzie, Inc., Able Company, Inc., and Southern Poultry Processing, Inc., alleging that Plantation shipped McKenzie $12,757.00 worth of turkeys on open account; that McKenzie received same, and within a few days sold same to Southern at a price substantially below the market price; that McKenzie intentionally and fraudulently ordered the turkeys, never intending to pay for same; that Southern Knew or should have known of the foregoing and that the merchandise was converted and title to same could not pass. Plaintiff prayed for its damages jointly and severally against McKenzie and Southern.

Southern filed its plea of privilege to be sued in Harris County. Plaintiff controverted asserting venue maintainable in McLennan County under Subdivisions 9 and 29a Article 1995 VATS.

The trial court after hearing overruled the plea of privilege.

Southern appeals on 1 point: “The trial court erred in overruling [its] plea of privilege as there exists no exception to the statutory right of a Texas resident to be sued in the county of [its] domicile.”

The trial court overruled Southern’s plea of privilege on March 26, 1982. Thus, under Rule 385 TRCP Transcript and Statement of Facts were to be filed in this Court within 30 days or no later than April 26, 1982. Southern filed the Transcript on April 22, 1982 but filed no Statement of Facts. On May 25, 1982 Southern filed motion in this Court to extend the time for filing the Statement of Facts until that date. Such motion being filed 29 days after the Statement of Facts was due to be filed in this Court, was denied. Motion for extension of time to file Transcript or Statement of Facts must be filed within 15 days of the last day for filing as prescribed by Rule 21c TRCP. B. D. Click Co., Inc. v. Safari Drilling Corp., 638 S.W.2d 860, S.Ct., Vol. 25 The Texas Supreme Court Journal, No. 33, p. 346.

In the absence of a Statement of Facts it must be presumed on appeal that the evidence supports the verdict and judgment of the trial court. Englander v. Kennedy, S.Ct., 428 S.W.2d 806; Simpkins v. City of Dallas, CCA (Waco) NWH, 542 S.W.2d 701.

Southern’s point is overruled.

AFFIRMED.