89 S.W.2d 286 | Tex. App. | 1935
Appeal from an interlocutory order overruling a plea of privilege seeking to change the venue to the county (Travis) of appellant's residence. The suit is one for damages for publication of an allegedly libelous article concerning appellee in "The Austin American," a newspaper published in Travis county and alleged to be owned by appellant. No proof was offered upon the fact of such ownership, which omission forms the basis of appellant's assertion of reversible error.
While the issue thus raised has been the subject of much conflict of opinion among the several Courts of Civil Appeals, we believe the recent decision in Farmers' Seed Gin Co. v. Brooks (Tex.Com.App.)
The specific question in that case was whether, in a suit upon a written contract promising performance in the county where the suit was filed, it was necessary, in order to support venue there, to prove a breach of the contract. This question was answered in the negative.
Cited with approval is Bradley v. Trinity State Bank,
"The Austin American" had no relation to the issue of venue, but was an essential element to appellee's cause of action. If not proved in the trial upon the merits, the judgment must be for appellant whether the case was tried in Travis or Burnet county, or elsewhere.
The sole essentials to maintain venue in Burnet county were that (1) the suit was one for libel and (2) appellant resided in Burnet county when the cause of action arose. R.C.S. art. 1995, subd. 29; Houston Printing Co. v. Tennant (Tex.Civ.App.)
The order appealed from is affirmed. Affirmed.