Wheeler v. Ahrendt Motor Co.

Appellee sued appellant on open account for labor and material furnished in drilling an oil well in Lee county. Appellant filed his plea of privilege to be sued in Harris county, his alleged domicile. Appellee filed a controverting affidavit that appellant resided in Lee county, where the suit was filed. On the hearing of the plea of privilege, the trial court found that appellant resided in Lee county at the time the suit was filed, and overruled the plea of privilege; hence this appeal.

The judgment of the trial court must be affirmed because no assignments of error were filed in the trial court, nor do any appear in the transcript, and there is no fundamental error apparent of record. This appeal arose and the transcript was filed in this court before the enactment of the recent statute dispensing with former statutory provisions and rules requiring assignments to be filed with the clerk of the trial court, and to appear in the transcript; and the case must be affirmed upon the following authorities: Houston Lighting Power Co. v. Jenkins (Tex.Civ.App.) 5 S.W.2d 1030; article 1844, R.S. 1925; Hogg v. Sinclair Oil Gas Co. (Tex.Civ.App.) 38 S.W.2d 886; Ford Damon v. Flewellen (Tex.Com.App.) 276 S.W. 903; Egan v. Lockney Farmer's Co-op. Society (Tex.Com.App.) 284 S.W. 937; Moore v. Krenex (Tex.Com.App.) 39 S.W.2d 828; Natkin Engineering Co. v. Aetna Cas. Surety Co. (Tex.Com.App.) 37 S.W.2d 740; Clonts v. Johnson, 116 Tex. 489,294 S.W. 844; Duckworth v. Dallas County Levee Dist. (Tex.Civ.App.)11 S.W.2d 263; Mundell Wilson v. Rounds (Tex.Civ.App.) 22 S.W.2d 149; Forrest v. Moore (Tex.Civ.App.) 22 S.W.2d 1104.

The above holding disposes of the appeal; but in passing it may be observed that the assignments of error set out in appellant's brief only question the sufficiency of the evidence to sustain the finding of the trial court that appellant was a resident of Lee county at the time the suit was filed, and therefore present only questions of fact and not fundamental error apparent of record. The statement of facts shows a conflict in the evidence, and therefore sustains the finding of the trial court that appellant was a resident of Lee county at the time this suit was filed.

The judgment of the trial court is affirmed.

Affirmed.