97 S.W.2d 737 | Tex. App. | 1936
Appellees, in response to appellants' said pleas, filed what they termed a motion, in which they reaffirmed their allegations that appellants were nonresidents of the state, and further alleged that absent affirmative plea by them, the district court of McLennan county had jurisdiction, in a venue sense, to hear and determine the cause. Appellees asked in said motion that the cause be transferred to Brown county for trial.
The parties agreed in open court, in substance, that the allegations of fact contained in appellants' pleas and appellees' motion as above recited were true, and submitted such agreement to the court for consideration. Whereupon the court entered an order transferring the cause to Brown county for trial. Hence this appeal.
Our revised statutes provide that no person who is an inhabitant of this state shall be sued out of the county of his domicile except in certain cases specifically recited. Some of the exceptions so provided are merely permissive and some are expressed in mandatory terms, such as "shall be brought" or "must be brought" in a county bearing some specific relation to the subject-matter of the suit. One of such permissive exceptions (subdivision 3) authorizes a suit against a nonresident to be brought in the county in which the plaintiff resides, while another exception (subdivision 14) provides that suit for the recovery of land "must" be brought in the county in which such land, or a part thereof, is situated. R.S. art. 1995. The former exception is subordinate to the latter when properly invoked. Knoles v. Clark (Tex. Civ. App.)
Appellees cite, in support of their contentions above recited, the case of Atchison, T. S. F. Ry. Co. v. Stevens. The opinion of the Court of Civil Appeals in that case is found in
Appellees also cite the case of Reynolds-Kimberlin Oil Co. v. Perry, by the Court of Civil Appeals for the Seventh District and reported in
The principal cases cited by appellants in support of their hereinbefore recited contentions are: Sun Oil Co. v. Wright (Tex. Civ. App.)
The plaintiff, in Sun Oil Co. v. Wright, filed suit in Cass county to recover damages for personal injuries alleged to have been sustained by her as the result of negligence on the part of the agents and employees of defendant in Rusk county. The defendant filed a plea of privilege, admitting that it was a corporation, alleging its legal residence in Dallas county and asking that the cause be transferred to that county for trial. The plaintiff filed a controverting affidavit, in which she alleged that the defendant had an agent in Cass county, and in the alternative, that her cause of action arose out of a trespass committed upon her by defendant's agents and employees in Rusk county. She asked that in event venue could not be maintained in Cass county, that the cause be transferred for trial to Rusk county. The court held that venue did not lie in Cass county, but instead of transferring the cause to Dallas county, where the defendant corporation had its legal residence, transferred the same to Rusk county, where the cause of action, or a part thereof, arose. The Court of Civil Appeals held such action erroneous on the ground that the defendant was entitled to have the cause transferred to the county of its residence, since the plaintiff did not bring the same in a county having venue under any of the exceptions recited in article 1995. The court, in the course of its opinion, distinguished the case from Reynolds-Kimberlin Oil Co. v. Perry, supra, on the ground that the defendant in that case had no domicile in the state, apparently conceding that in such cases the rule so announced and followed had no application. Clearly, the effect of such decision is merely to hold that the general provision of said article 1995 that no inhabitant of this state shall be sued out of the county of his domicile except in cases therein specifically recited, is available in all cases involving a plea of privilege to be so sued, unless the suit in which such plea is filed has been actually instituted in one of the counties named in such exceptions, and that as against a resident of this state, all such exceptions are waived by the plaintiff when he files his suit in a county not embraced within any of the same. The cases of Loos v. Swaim, supra, and Shear Co. v. Neely, supra, cited by appellants as aforesaid, both involved the application of the same rule announced by the court in Sun Oil Co. v. Wright, and therefore need not be specifically discussed, but in each of the same other facts were shown distinguishing the same from the case at bar. Since such rule has no application in this case, we need not further consider the same.
Both appellants and appellees in their written pleadings concede that concurrent venue of this cause lies in six several counties on the same identical ground, one of which is the county of Brown. Appellees asked the trial court to transfer the cause to said county, and the court, in the exercise of its discretion, did transfer the same thereto. We are of the opinion that appellants have no legal ground to complain of such action, notwithstanding they arbitrarily selected another of said six counties and asked that the cause be transferred thereto. The order or judgment of the trial court is therefore affirmed. *741