57 S.W.2d 313 | Tex. App. | 1933
This action was brought in the district court of Gillespie county by R. E. Jordan as receiver of Taylor-Burke Motor Company against the Union National Bank of Houston, James L. Clayton, and W. L. Burke to recover the amount of certain funds belonging to the plaintiff and alleged to have been converted by the defendant. J. L. Clayton and said bank were alleged to be residents of Harris county and W. L. Burke was alleged to be a resident of Gillespie county. The defendants, Clayton and the bank, each filed pleas of privilege to be sued in the county of their residence. These pleas were in the statutory form, and contained the allegation that "no exception to exclusive venue in the county of one's residence provided by law exists in said cause," as provided in Revised Statutes, article
The pleas of privilege were in the form as provided by statute, and, under the express provision of Revised Statutes, article
These pleas of privilege being in the form as provided by the statute, prima facie rebutted every allegation of fact alleged in plaintiff's petition. Plaintiff could not rely on the allegations of fact as made in his petition, nor introduce evidence of the truth thereof unless and until he filed a controverting affidavit setting up anew the necessary facts to show that the case came within one of the exceptions to the general venue statute. Eckert-Burton Const. Co. v. Board of School Trustees of City of Corsicana (Tex.Civ.App.)
The judgment of the trial court is reversed, and the cause remanded for a new trial.