Nolte v. Saenz , 1941 Tex. App. LEXIS 662 ( 1941 )

MURRAY, Justice.

This suit was instituted by Modesta Saenz Viuda de Saenz in the District Court of Jim Wells County, Texas, against Ed. H. Nolte, seeking to recover damages alleged to have been sustained by her and her children, growing out of the death of her húsband, Liborio Saenz, who was killed in an automobile collision which occurred in Jim Wells County.

Appellant, Ed. H. Nolte, filed a plea of privilege containing the following allegations, to-wit:

“Now comes Ed. H. Nolte, defendant in the above entitled and numbered cause, having been heretofore served with citation to appear herein, and files this his plea of privilege, showing to the Court as grounds therefor, the following:

“1. That this defendant, Ed. H. Nolte,. the party claiming such privilege, was not,, at the institution of such suit, nor at the time of the service of process thereon, nor was, nor is he at the time of the filing of such plea, a resident of Jim Wells County, Texas, the county in which such suit was instituted.

“2. That he is a resident of the State of New York, but temporarily residing in Bell County, Texas, and was so temporarily residing at the time of such plea, including the time of the filing of same.

“3. No exception to exclusive venue in the county of one’s residence provided by law exists in said cause.

“Wherefore Premises Considered, this defendant prays the court to sustain this Plea of Privilege.”

This plea does not meet the requirements of Art. 2007, Vernon’s Texas Civil Statutes, in that it does not unequivocally state that Ed. H. Nolte resides in Bell County. It does unequivocally state that he is a resident of the State of New York.

Appellant offered no proof at the hearing as to where he resided or as to just how temporary his residence was in Bell County. We conclude the trial court properly overruled the plea.

Article 2007, supra, is authority for filing a plea of privilege which contains legal conclusions rather than a statement of all the facts and when a statutory plea of privilege is filed it is prima facie proof of the right of the party to a change of venue.

In this case apparently appellant’s counsel was unwilling to state in a verified pleading that he was a resident of Bell County, Texas, and after admitting appellant was a resident of the State of New York, went no further than to state that appellant was a temporary resident of Bell County. Such a pleading could not be accepted as prima facie proof of appellant’s right to a change of venue. Under Subdivision 3 of Art. 1995, Vernon’s Annotated Civ.Stats., a nonresident of the State may be sued in the county of the residence of the plaintiff.

Appellant contends that, inasmuch as the trial court overruled special exceptions to the plea, he had a right to presume that his plea met all the requirements of the statute, unless and until the trial court changes his ruling upon the special exceptions. We overrule this contention. A special demurrer or exception is made for the benefit of the party making it, and the opposing party has no right to presume that his pleadings meet all the requirements of the statute simply because the special exceptions of his adversary have been by the court overruled.

The order overruling the plea of privilege is affirmed.