State ex rel. Loveless v. Brady Independent School District

PHILLIPS, Chief Justice. This is a suit in the nature of quo war-ranto by The State of Texas on the relation of two individuals alleging that the Brady Independent School District and the Eden Independent School District, not a party to this appeal, were both asserting the right to tax property belonging to the relators. The district court of Concho County sustained appellee Brady Independent School District’s plea of privilege and ordered the cause transferred for trial to McCulloch County, domicile of the appellee. We affirm this judgment. Appellants contend that the purpose of this proceeding in Concho County against both of the above-mentioned school districts was to determine which of them has the jurisdiction and authority to tax a particular and defined portion of their property for public free school purposes. Appellants seek reversal of the court’s ruling on the plea of privilege contending that they have a bona fide cause of action against both school districts and that the Brady Independent School District was so intimately connected with the cause of action brought against the Eden Independent School District in Concho County as to make the Brady District a necessary or proper party defendant. Tex.Rev.Civ.Stat. Ann. art. 1995, § 4 (1964). We hold that under the aegis of Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936), appellants did not plead or prove a bona fide cause of action against the Eden Independent School District, the only defendant residing in Con-cho County where the suit was instituted and that the court was correct in sustaining appellee’s plea of privilege to be sued in the county of its residence. Appellants’ petition in quo warranto alleged that it was filed on the relation of Will Ray Loveless and wife, Cecilia Loveless, and named as defendants the Eden [731] Independent School District, alleged to be a resident of Concho County, and the Brady Independent School District, alleged to be a resident of McCulloch County. The petition further alleged that the rela-tors own real property which was at one time located in the Melvin County-Line Independent School District, which had levied and collected school taxes on such property, but that after 1971 that district ceased to assess and collect taxes and the Brady District levied and collected school taxes against that part of relator’s property. Appellants further alleged in the petition that relators had been notified that their property would continue to be taxed by the Brady District but additionally, that rela-tors had received a notice from the tax assessor-collector of the Eden District that they should also render their property to the Eden District for taxation. Appellants’ petition further alleged that they were in doubt as to which district was entitled to collect taxes on the property and that there was a justiciable controversy as to which district was entitled to assess and collect taxes on the property. Appellants then asked the court to determine which school district had the right and authority to tax the property. It is well settled that two elements are necessary to maintain venue in a county under subdivision 4 of Tex.Rev.Civ.Stat. Ann. art. 1995. First, there must be a defendant who resides in that county; and second, plaintiff must plead and prove that it has a cause of action against the resident defendant. Stockyards National Bank v. Maples, supra. The opinion in that case makes it clear that proof of a cause of action against the nonresident defendant has no relevancy to the issue of venue. It is also necessary that the cause of action plaintiff pleads against the resident defendant must be a bona fide one. Zurich Insurance Company v. Wiegers, 527 S.W.2d 511 (Tex.Civ.App.1975, no writ).1 The term “cause of action” has been defined “as a fact or facts entitling one to institute and maintain an action, which must be alleged and proved in order to obtain relief.” A. H. Belo Corp. v. Blanton, 133 Tex. 391, 129 S.W.2d 619 (1939). We note that appellee’s special exception to appellants’ controverting plea specifically urged that the controverting plea failed to allege any facts that show that appellants have a bona fide cause of action against the defendant Eden Independent School District. This special exception was sustained by the trial court. Appellants have no point of error in their brief complaining of that ruling. Although appellants were permitted to file a trial amendment, the trial amendment amends the controverting plea only to allege that the Eden Independent School District is a resident of Concho County and does nothing further to meet the exception in question by pleading any facts which would constitute a cause of action against the resident defendant Eden Independent School District. The only allegations are that the tax assessor-collector of that district had notified relators to render their property for taxation to the Eden District. There are no allegations whatever that such a demand was not justified by facts. Thus, if appellants’ pleadings in the controverting affidavit were insufficient to allege the cause of action against the resident defendant Eden Independent School District, then appellants have no pleadings as a basis upon which to introduce evidence on the hearing which would prove a bona fide cause' of action against the resident defendant Eden Independent School District. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91 (1935), Jefferies v. Dunklin, 131 Tex. 289, 115 S.W.2d 391 (1938). It has long been settled in this State that evidence is inadmissible unless it has support in the pleadings. Erisman v. Thompson, 140 Tex. 361, 167 S.W.2d 731 (1943), Bowles v. Fickas, 140 Tex. 312, 167 S.W.2d 741 (1943). Even assuming appellants plead a bona fide cause of action against the resi [732] dent defendant, appellants are still not entitled to reversal because appellants failed to prove a bona fide cause of action at the hearing on the plea of privilege. The burden is on the plaintiff to prove a bona fide cause of action against the resident defendant by a preponderance of competent evidence. See Collins v. Ford Motor Credit Co., 454 S.W.2d 469 (Tex.Civ.App.1970, no writ), and cases cited therein. The trial court ruled that appellants had not proved the necessary venue facts under subdivision 4 of Article 1995 to allow the case to be retained in Concho County. Such ruling is supported by the evidence and is not against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Because appellants failed in this indispensable requirement to maintain suit in the county where filed under subdivision 4 of Article 1995, appellee was entitled to have its plea of privilege granted. The trial court so held and we affirm that judgment. The judgment of the trial court is affirmed. Footnotes [1] See 32 Texas L.Rev. 441 (1954).