Cassidy-Southwestern Commission v. Chupick

This appeal is from an order overruling appellant corporation's sworn plea of privilege to be sued in Tarrant county, the county of its domicile. The venue was laid against it in Fayette county under allegations that it had both committed a fraud upon the plaintiffs in the suit and a trespass upon their property at Ellinger, in Fayette county; but there was no proof that Ellinger was located in Fayette county.

While that fact was averred by the plaintiffs in an affidavit they filed controverting the plea of privilege, they were also, in view of the amendment of 1917 (Laws 1917, c. 176 [Vernon's Ann.Civ.St.Supp. 1918, art. 1903]) to article 1903 of our Revised Statutes, under the further duty of producing evidence to establish it. Ray v. Kimball, 207 S.W. 353.

Moreover, as the town of Ellinger was not shown to be a county seat, no facts appear from which this court might presume that it was in Fayette county. Dallas Brewing Co. v. Holmes Bros., 51 Tex. Civ. App. 514,112 S.W. 122-124; M. K. T. Ry. Co. v. Lightfoot,48 Tex. Civ. App. 120, 106 S.W. 395-399.

This being the situation as presented here, this court is unable to affirm the judgment overruling the plea. Since it is apparent from the record as a whole, however, that proof of the location of Ellinger can be supplied, an instance of failure to fully develop the case is before us, and the cause will be remanded for trial upon that issue. Hayes v. Penney, 215 S.W. 571.

The judgment is reversed, and the cause remanded.

Reversed and remanded.