Allen v. Williams , 1923 Tex. App. LEXIS 661 ( 1923 )

HIGGINS, J.

[1] Defendants in error brought this suit in the district court of Glasscock county. Plaintiffs in error filed plea of privilege in statutory form to be sued in Tom Green county, where they resided. Controverting affidavit was filed by defendants in error, and exceptions to this affidavit were filed by one of the plaintiffs in error. The plea of privilege was overruled.

It is agreed by defendants in error:

“That the plea of privilege was disposed of on the record, that is, the plea of privilege filed by the defendants, controverting affidavit of the plaintiffs and exception filed by defendants, and that no testimony, oral or written, was otherwise offered.’-’

In Ray v. Kimball Co. (Tex. Civ. App.) 207 S. W. 351, it is said:

“The statute above noted malíes the sworn plea of the defendants prima facre proof of the right to a change of venue, but does not mate the controverting affidavit of plaintiff proof of anything. The issue having been joined by the sworn pleas of defendants and plaintiff, the duty of the court to hear such issue is invoked. If no evidence is introduced to show that the facts alleged in the controverting plea are true, then the court is required to sustain the plea of privilege.”

Other cases to the same effect are as follows: Bledsoe v. Barber (Tex. Civ. App.) 220 S. W. 369; Watson v. Watson (Tex. Civ. App.) 223 S. W. 699; Eyres et al. v. Crockett State Bank (Tex. Civ. App.) 223 S. W. 269; Standard Rice Co. v. Broussard et al. (Tex. Civ. App.) 223 S. W. 323; Sargent v. Wright (Tex. Civ. App.) 230 S. W. 781; Green v. Partin (Tex. Civ. App.) 235 S. W. 646.

There having been no evidence adduced by defendants in error in support of the controverting affidavit, the plea of privilege should have been sustained.

Reversed and remanded, with instructions to hear the evidence upon the controverting affidavit and to transfer the venue to Tom Green county unless the controverting affidavit be sustained by the evidence.

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