Van Pelt v. McCabe

236 S.W.2d 685, 1951 Tex. App. LEXIS 2439

• Court: Court of Appeals of Texas
• Decided: February 7, 1951
• Docket: 12216
• Status: Published

Opinion

POPE, Justice.

This is an appeal from an order overruling appellants’ plea of privilege to be sued in Kerr County, but it concerns the application of Rule 419, Texas Rules of Civil Procedure.

Appellants complain by proper points, (1) that the trial court erred because the plaintiffs’ controverting affidavit did not refer to nor incorporate the plaintiffs’ petition, nor did it allege facts sufficient to assert a cause of action based on a written contract, (2) that this failure to refer to or incorporate the petition resulted in a controverting plea which failed even to designate the plaintiffs by name, (3) that this failure also resulted in an empty verification of pleadings which contained no fact allegations, (4) that the evidence introduced over objection established material alterations of a written contract made without appellants’ consent or authority, (5) that the court improperly admitted evidence as to the execution and delivery of the contract because there were no pleadings to support such testimony, and (6) because the contract was not performable in Bexar County. Appellants’ brief contains statements pertaining to the support of these points which are unchallenged by appellees who have not favored us with a brief. We accept those statements as correct, without resort to the statement of facts or the record. Rule 419, Texas Rules of Civil Procedure; Donnelly v. Donnelly, Tex.Civ.App., 220 S.W.2d 278; City of Caldwell v. Schumacher, Tex.Civ.App., 204 S.W.2d 471, reversed on other grounds, 146 Tex. 265, 206 S.W.2d 243; White v. Adams, Tex.Civ.App., 201 S.W.2d 623; Headstream v. Mangum, Tex.Civ.App., 174 S.W.2d 496.

The order overruling the plea of privilege is reversed and the cause is ordered transferred to Kerr County.