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WAXAHACHIE BANK & TRUST COMPANY v. W. J. PRICE ET AL. (12/10/57)

December 10, 1957

WAXAHACHIE BANK & TRUST COMPANY, APPELLANT,
v.
W. J. PRICE ET AL., APPELLEES



Author: Chadick

CHADICK, Chief Justice.

This is a venue case. The judgment of the trial court sustaining the plea of privilege of non-resident appellees is affirmed.

Appellant, Waxahachie Bank & Trust Company, brought suit in Dallas County against Llano H. White, admittedly a resident of Dallas County, and W. J. Price, T. A. Lewis, N. H. Pierce, Jack Pullen, J. T. Lofland and R. M. James, residents of Rockwall County. White did not answer or enter an appearance; all of the Rockwall County residents filed pleas of privilege and appellant timely controverted the pleas and alleged and proved certain facts which it contended sustained venue in Dallas County under subdivision 4, Article 1995, Vernon's Ann.Tex.Civ.St.

The appellant excepted to the court's order transferring the case to Rockwall County as to the residents of that county, and presents three points of error for review in this Court.

Appellant's first point is:

"The error of the Court in sustaining defendants' pleas of privilege, since plaintiff alleged and proved both residence and a cause of action against the resident defendants, and at the same time plaintiff alleged a joint cause of action or cause of action against the non-resident defendants so intimately connected with the action against the resident defendant that the two may be joined under the rule intended to avoid a multiplicity of suits."

Neither of the other points bring into question the sufficiency of the evidence to sustain the judgment of the trial court. This first point seems to assume that a cause of action against the resident defendant was proven as a matter of law. The trial court having rendered a judgment adverse to the appellant and no findings of fact or conclusions of law having been requested or filed, this Court must indulge a presumption that the trial court found facts consistent with and that supported his judgment and unless it appears that the trial court's judgment is based upon something else, the presumption must be that the trial court did not find that the appellant had proved a cause of action against the resident defendant, White.

The statement of facts shows that a vice-president of the appellant Bank was the witness upon whom the appellant relied to make its case. (The only other witnesses were B. F. White and L. H. Jones, automobile dealers, whose names had been forged to certain certificates of title and each as witness denied the genuineness of signatures purporting to be theirs upon the instruments or any participation in securing the certificates.) A review of the vice president's testimony shows that it is not without equivocation or confusion, and contains some elements of contrariety upon which a court, as the trier of the facts, might disregard it. As an illustration, on cross-examination he testified as follows:

"Q. And the fact of the business is, the bank doesn't have any claim against White or anybody else on this transaction; you have got all of your money, haven't you? That is true, isn't it? A. The insurance company paid us.

"Q. Yes, and then I say you got all your money out of it, didn't you -- the bank? A. The bank.

"Q. And as far as the Waxahachie Bank & Trust Company is concerned, you are just up here testifying because Mr. Gwinn has asked you to come up here and state these facts you have been testifying about? A. That is right.

"Q. And you have said in your testimony a time or two that -- you made some reference to the fact you lost money on the notes and couldn't collect them. You did finally recoup your entire loss, didn't you? A. The insurance company paid us.

"Q. And when you were paid in full, do you know whether or not you assigned the notes to the insurance ...


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