226 S.W.2d 874 | Tex. App. | 1949
This is an appeal from an order of the District Court of Ector County sustaining exceptions to a controverting affidavit to a plea of privilege and sustaining the plea of privilege.
Walter Rese Jones sued Gene T. May, d/b/a May Motor Company, and Pacific Finance Corporation to recover damages for the alleged conversion of an automobile. The defendant, Pacific Finance Corporation in due form and time filed its plea of privilege claiming its right to be sued in Dallas County. The plaintiff in due time filed his controverting affidavit. The -Court set a time to hear the same. The Finance Corporation filed what is designated as its “Motion to Over-rule Plaintiff’s' Controverting Plea”. The grounds ' were that the controverting plea does not allege facts nor grounds sufficient to sustain veriué in Ector County, either within itself or- -by reference to any other instruments;.:that-.no- facts' nor grounds'are swórn-to that will sustain-venue in Ector County in- that the -oath is' not broad enough to include any such facts' of grounds; and ' that the controverting plea is not sworn td'as'reqúired hy law be-, cause it purports to have been sworn to before his attorney of record, which- is no oath at all. On the hearing of this motion the -Court sustained the same - and thereupon sustained the plea of -privilege -and ordered the case as -against such defendant transferred to Dallas County. From that order this appeal is prosecuted. The appel-lee has filed no -brief-’ ■
The controverting affidavit denied all the allegations contained in the plea of privilege; referred to the original petition and adopted it for all purposes; set out in substance certain allegations of the petition, and then in paragraph 4 of the Controverting affidavit alleged: ‘Such allegations show apd aver, -and it .is a fact, that a portion of said cause of -action arose in Ector County, Texas;, that defendant Pacific Finance Corporation is, and was at the time of the acts complained of in said petition, a private corporation,, maintaining an agency in Ector County, Texas, .at the time said cause of action arose, within the meaning of Exception 23, as amended, .A-cts 1943, 48th- Legislature, of Art. 1995, -Vernon’s Ann. Civ. Statutes.”
The affidavit is, omitting cért'ain formal parts, that Walter Rese Jones on his oath stated “that he is plaintiff in the above entitled and numbered cause, and that the allegations, denials, and facts set out in the foregoing controverting plea are true and correct.” It is subscribed and' sworn to-before George M. Kelton, Notary Public, Ector County. .. .
It will be noted the controverting pica itself alleged grounds set out in Subdivision 23 of art. 1995, supra. It must follow as a matter of course that is all that is required so far as the pleading is concerned
The affidavit is obviously sufficient.
It is our.-conclusion the. trial court erred in sustaining the exception to the controverting affidavit and plea and in sustaining the- plea of privilege based on the action had on the exceptions. The judgment of. the trial court is reversed and the case- remanded for a trial on the issues arising on the plea of privilege and- controverting affidavit.