DocketNumber: No. 3858.
Citation Numbers: 130 S.W.2d 462, 1939 Tex. App. LEXIS 1238
Judges: Higgins
Filed Date: 6/1/1939
Status: Precedential
Modified Date: 11/14/2024
Appellee brought this suit against the appellant, Stratton, to recover $352.76 alleged to be due upon open account. It was alleged a portion of the sum sued for was for the rental of certain tools rented by the plaintiff to the defendant and the balance was the purchase price of certain tools sold and delivered to the defendant. Stratton filed plea of privilege, claiming his right to be sued in McLennan County, where he resided. Controverting affidavit was filed by the plaintiff setting up that defendant, acting through his authorized agents, had agreed in writing to pay the amount sued for in Gregg County. The plea was overruled, and the defendant appeals.
At the request of the defendant the Court filed findings of fact, and the appeal is prosecuted upon such findings without a statement of facts.
In order to sustain the venue in Gregg County it was necessary for the plaintiff to show that defendant, acting through his authorized agents, had agreed in writing to pay the sum sued for in Gregg County, as alleged in the controverting affidavit. There is no such finding contained in the trial court's findings of fact. Upon that controlling issue the findings are completely silent.
Appellee does not contend the findings are sufficient in that respect, but asserts that in support of the trial court's order in overruling the plea a finding upon such issue in favor of the appellee should be implied. Since there is no statement of facts in the record this Court cannot indulge any such presumption or implication. This Court can look alone to the trial court's findings to ascertain the facts proved upon the hearing. The rule is correctly stated by Chief Justice Smith in Spencer-Sauer Lumber Co. v. Ballard, Tex. Civ. App.
The following cases cited by Judge Smith support the rule as stated: Kimball v. Houston Oil Co.,
The court erred in overruling the plea of privilege.
Reversed and remanded.
Lyon & Matthews Co. v. Modern Order of Prætorians , 1911 Tex. App. LEXIS 5 ( 1911 )
Baldwin v. Drew , 1915 Tex. App. LEXIS 1059 ( 1915 )
Kimball v. Houston Oil Co. , 100 Tex. 336 ( 1907 )
Waggoner v. Edwards , 1935 Tex. App. LEXIS 573 ( 1935 )
City Nat. Bank of Corpus Christi v. Pope , 1924 Tex. App. LEXIS 308 ( 1924 )
Berryman v. Froneberger , 266 S.W. 232 ( 1924 )