Associated Seeds, Inc. v. Scholtz

MURRAY, Justice. Appellee, William M. Scholtz, instituted this suit in the county court of Willacy county to recover from Associated Seeds, Inc., and another, certain moneys alleged to be due appellee for labor performed in threshing grain. Appellant in due time filed a plea of privilege to be sued in thb county of its domicile, to wit, in Hidalgo county. Appel-lee filed a controverting affidavit, but not within the time prescribed by law. This controverting affidavit alleged that apjpbl-lant was a corporation and that appellee’s cause of action arose in Willacy county, and therefore, under the provisions of article 1995, subdivision 23, R.S.1925, the county court of Willacy county had venue of this cause of action. A hearing was had, at which evidence was offered, and the trial court overruled appellant’s plea of privilege. The evidence offered at the hearing bore solely upon the question of appellee’s good cause for not filing his controverting affidavit within the time prescribed by law. There is not a scintilla of evidence in the record bearing upon the merits of appellee’s controverting affidavit. It was incumbent upon appellee to discharge the burden resting upon him to offer evidence in support of the allegations contained in his controverting affidavit. Stone Fort Nat. Bank of Nacogdoches v. Forbess, 126 Tex. 568, 91 S.W.2d 674; Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91; Texas Coca-Cola Bottling Co., Inc. v. Kubena, Tex.Civ.App., 90 S.W.2d 605. There being no proof showing that appel-lee’s cause of action arose in Willacy county, it was the duty of the trial judge to sustain appellant’s plea of privilege and transfer the case to a court of competent jurisdiction in Hidalgo county. Accordingly, the judgment of the trial court will be reversed and judgment here rendered that this cause be transferred by the clerk of the county court of Willacy county, in the manner prescribed by law, to a court of competent jurisdiction in Hidal-go county.