DocketNumber: No. 6339.
Citation Numbers: 216 S.W.2d 686
Judges: HALL, Justice.
Filed Date: 2/12/1948
Status: Precedential
Modified Date: 1/12/2023
This is an appeal from an order of the District Court of Cherokee County, overruling appellant's pleas of privilege to be sued in Dallas County, its residence. Calvin Jackson and Mrs. Loleta Sherrard, individually and as next friend for her son Robert Joe Sherrard, a minor eight years of age, instituted two suits against appellant East Texas Motor Freight Line, for damages growing out of the same accident, in which it is averred that Calvin Jackson was injured and Joe L. Sherrard was killed. The appellant, defendant below, interposed a plea of privilege in each case alleging that its local residence, office and principal place of business is in Dallas County. The trial court heard the two pleas of privilege together. Both suits were instituted in the District Court of Cherokee County, and appellees' place of residence is alleged in their petitions to be in Cherokee County. Both pleas of privilege were overruled.
Appellant's first point is:
"The court erred in overruling defendants' pleas of privilege, since plaintiffs introduced no evidence to make out even a prima facie cause of action, no evidence of any transaction or occurrence relied upon as giving rise to any cause of action, no evidence as to the time any such cause of *Page 687 action or part thereof arose or any such transaction or occurrence happened, and no evidence that the plaintiffs resided in Cherokee County at the time the cause of action or part thereof arose or such transaction or occurrence happened, thereby failing to establish venue in Cherokee County under Subdivision 23, Art. 1995."
Since both cases grew out of the same transaction and were heard together by the trial court they will be so considered here and we shall refer to the parties simply as appellant and appellees.
Appellees sought to retain the venue in Cherokee County under Subdivision 23, Art. 1995, R.C.S. of Texas, Vernon's Ann.Civ.St. art. 1995, subd. 23. The part of said statute pertinent here is:
"Suits against a private corporation * * * may be brought in the county in which * * * the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation * * * has an agency or representative in such county".
All the evidence introduced in the court below relates solely to whether appellant had an agent or representative in Cherokee County. No other fact was proven by appellees. They assert that it was only necessary for them to establish that appellant had an agent or representative in Cherokee County in order for them to fix the venue in that county. Before the amendment to Subdivision 23, Art. 1995, by the 48th Legislature in 1943, appellees' position would have been correct. No other fact issue would have been raised by the plea of privilege under the statute as it then existed. Texas-Louisiana Power Co. v. Wells,
"* * * Prior to 1943, Subdivision 23 provided, in effect, that a corporation could be sued in any county of this State in which it had an agent or representative. This subdivision was amended in 1943, by the Acts of the 48th Legislature, Ch. 228, Sec. 1, Vernon's Ann.Civ.St. art. 1995, subd. 23, so that it now provides, among other things, that suit may be brought `in the county in which the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation, association or company has an agency or representative in such county.' Prior to this amendment all the `venue facts' to be proven under the subdivision were that the defendant was a corporation and that it had an agent or representative in the county of suit. Painter Bus Lines, Inc., v. Carpenter, Tex. Civ. App.
In the second opinion,
In Victoria Bank Trust Co. v. Monteith,
"If the phrase `county in which the plaintiff resided at the time of the accrual of the cause of action', used in subdivision 29 and construed in the Blanton case [A. H. Belo Corp. v. Blanton,
See also Duncan Coffee Co. v. Clement, Tex. Civ. App.
Judgments of the trial court are reversed and the causes remanded with instructions to the trial court to order them transferred to one of the district courts of Dallas County, Texas.
"It follows that the application is granted as prayed for and the writ of mandamus will issue unless the Court of Civil Appeals amends its judgment so as to remand the cause for a new trial in the District Court of Cherokee County."
In obedience to the above order the opinion of this court heretofore entered, as well as the judgment based thereon, are hereby amended so as to read:
"Judgment of the trial court is reversed and this cause is remanded to the District Court of Cherokee County for a new trial." *Page 821
Belo Corp. v. Thomas Blanton , 133 Tex. 391 ( 1939 )
Victoria Bank Trust Co. v. Monteith , 138 Tex. 216 ( 1941 )
Trinity Universal v. Wallace , 186 S.W.2d 86 ( 1945 )
Painter Bus Lines v. Carpenter , 146 S.W.2d 278 ( 1940 )
Texas-Louisiana Power Co. v. Wells , 121 Tex. 397 ( 1932 )
Jackson v. Hall, C.J. , 147 Tex. 245 ( 1948 )
De Shong Motor Freight Lines v. N. Texas , 108 S.W.2d 766 ( 1937 )
Trinity Universal v. Wallace , 187 S.W.2d 715 ( 1945 )