Republic Acceptance Corp. v. Thompson

HUGHES, Justice.

The note upon which this suit was based, copy of which is attached to plaintiff’s petition, is dated, “Houston, Texas, November 28, 1962,” and is payable “In Austin.”

The Supreme Court in Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825, answered the following certified question in the affirmative:

“Since Exhibit B shows on its face that it was executed in Texas, are the words ‘All bills payable in Dallas’ sufficient to designate Dallas as a definite place in Dallas County, Texas, and fix the venue of this suit in Dallas County, within the terms of Subdivision 5 of Article 1995 ?”

In its opinion the Court stated:

“Therefore, we have an instrument in writing signed by the defendant Burtis whereby he agrees to pay for all goods sold to him on credit by Butler Bros, in Dallas. The courts of Texas judicially know that Dallas is a county in Texas and also that it is a city which is the county seat of Dallas County, Texas. This is ‘naming a particular county, or a definite place therein’ by a written instrument as is required by subdivision 5, art. 1995, Revised Civil Statutes 1925, as amended.”

Under this authority it is our opinion that venue of this suit, as disclosed by the note, is in Travis County, Austin being the County seat of such County, a fact which we judicially know.

There is no statement of facts, but in our opinion none is required in order to show error in the ruling of the trial court.

Rule 93, Texas Rules Civil Procedure (H) requires denial under oath of the execution of any instrument in writing upon which a pleading is founded, if execution is to be denied, the penalty of failing to so deny being that “the instrument shall be received in evidence as fully proved.”

The execution of the note here declared upon was not denied under oath, the filing of a formal plea of privilege not being sufficient for this purpose. Venue, Sec. 146, 59 Tex.Jur.2d and cases there cited.

It is also firmly established that where venue facts can only be put in issue by verified pleading and defendant does not interpose such plea, plaintiff is not required to prove such facts; they are taken as admitted. Ladner v. Reliance Corp., 156 Tex. 158, 293 S.W.2d 758.

For further statement of the nature and result of this case reference is made to the dissenting opinion of Chief Justice Archer.

We reverse the order sustaining appel-lee’s plea of privilege and render judgment overruling it.

Reversed and rendered, overruling plea of privilege.