
    LITTLEFIELD STATE BANK v. MOORE et al.
    (No. 2239.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 16, 1924.)
    1. Venue <&wkey;68 — Burden of proof on plaintiff to prove facts in affidavit controverting defendant’s plea of privilege.
    The position of a defendant, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1903, providing: that a plea of privilege, when filed, shall be prima facie proof of defendant’s right to a change of venue, is not altered by the filing of a controverting affidavit by plaintiff; the burden being on plaintiff to prove that the facts alleged in his affidavit are.true.
    2. Appeal and error <&wkey;>989 — Evidence in the record on appeal inures to benefit of either party whose cause of action it establishes.
    It is immaterial on appeal by whom evidence which is in the record has been tendered, it inuring to the benefit of either party whose cause of action or defense it tends to establish.
    3. Corporations <&wkey;503(2) — Venue»&wkey;8—Stat-ute held to authorize suit against converter bank in county where fraud of another defendant occurred.
    Where defendant bank had converted personal property, belonging to plaintiffs, by levying an attachment on the same while in the hands of another defendant, and the bank knew that such other defendant had acquired the property fraudulently from plaintiffs, defendants might be sued in the county where such other defendant perpetrated the fraud under both Rev. St. 1911, art. 1830, subd. 24, permitting suits against a private corporation in any county in which the cause of action or part thereof arose, and also under subdivision 9 of that article, permitting suits founded on some crime to be brought in the county where the crime was committed; the bank being connected with the whole transaction.
    Appeal from Lubbock County Court; P. E. Brown, Judge.
    Action by George H. Moore and others against the Littlefield State Bank and another. The named defendant’s plea of privilege was overruled, and it appeals.
    Affirmed.
    Wilson & Douglas, of Lubbock, for appellant.
    Spencer & Randal and Starnes & Howard, all of Lubbock, for appellees.
   RANDOLPH, J.

This is an appeal from an interlocutory judgment of the county court of Lubbock county, overruling appellant’s plea of privilege to be sued in the county of its residence — Lamb county. .

Plaintiff’s petition alleged that L. B. Steiger was a transient person, having no place of residence; that Littlefield State Bank is a corporation, having its principal place of business in Littlefield, Lamb county, Tex.; that plaintiff sold defendant Steiger certain personal property, setting out the various items and their prices, aggregating the sum of $204.55; that same was sold for cash, but that defendant gave them his check for only $102.20, drawn on defendant bank, and promised to pay the balance in a short time; that' such check was by defendant Steiger given to and accepted by plaintiffs, on the representation that he had money in said bank and that they would not have parted with the possession of said property but for said cash payment and said representations that defendant Steiger had money in said bank, they believing and relying upon same; that the check when presented to said bank was dishonored; that such representations were false, and that defendant Steiger knew they were false when he made them, and that such representations were made by him for the purpose of defrauding the plaintiffs; that immediately upon discovering that said check was dishonored and said representations were false, plaintiffs rescinded said sale and demanded the return of the goods, but that said bank had obtained possession of the goods and refused to give up possession, but, on the contrary, obtained a bill of sale from the defendant Steiger, conveying the property to it and converted the same to their own use.

The defendant bank filed its plea of privilege to be sued in Lamb county, which being overruled, appeal has been had to this court.

Article 1903, Vernon’s Texas Statutes, providing the requisites of a plea of privilege and providing that such plea when filed shall be prima facie proof of defendant’s right to change of venue, does not, in our opinion, by the further provision of that article — which permits the plaintiff to contest defendant’s right to change of venue by the filing of a controverting affidavit — alter the status of the parties or alter the position of the defendant. But we think, when the plaintiff files his contest, it devolves on him, and the burden remains on him, to show that the facts alleged in his controverting affidavit are true. If he fails to do this, defendant’s prima facie right to change of venue remains unimpaired and, in the event of such failure of plaintiff, the trial court should sustain the plea and transfer the cause to the proper court. Holmes v. Coalson (Tex. Civ. App.) 178 S. W. 635; Carver Bros. v. Merrett (Tex. Civ. App.) 184 S. W. 744; Hayes v. Penney (Tex. Civ. App.) 215 S. W. 571.

However, we find in the transcript an agreed statement of the “evidence offered at the hearing of said plea of privilege.” It is not stated by whom, plaintiff or defendant bank, this evidence was tendered in court. But this is not material, the evidence is in the record and inures to the benefit of. either party whose cause of action or defense it tends to establish.

This being true, it devolves on us to ascertain if the evidence sustains the plaintiff’s controverting affidavit.

The evidence discloses that Steiger, when he bought the goods from the plaintiffs and as an inducement for them to part with the possession of the goods, represented to them that he had money to cover the check in defendant bank; that plaintiffs relied on these representations, and but for such representations would not have let Steigor have the goods; that at the time the check was turned down by defendant bank, its officers did not know that it had been given in payment of the goods in controversy; that Steiger being indebted to the bank, it- sued out a writ of attachment and had same levied on the property in controversy and on other property. Moore, one of the plaintiffs, testified that he first learned from J. M. Pope, defendant bank’s cashier, that the check had been dishonored when he (Pope) came to plaintiff’s store a short time after the check was turned down, and that Pope, at that time, told him that they had better come and get their goods. Knowledge on the part of the bank that the check was given for the goods when the attachment was levied was denied by Pope. However, some time after the dishonoring of the check and while Steiger was in jail, the bank secured a bill of sale to the goods, conveying them to itself.

There is no question but that the conversion of the goods occurred in Lamb county, and that the false representations, the giving of the check by Steiger, and the delivery of the goods to Steiger, occurred in Lubbock county.

Appellee claims that as the defendant bank is a private corporation, subdivision 24 of article 1830, Revised Civil Statutes of Texas, applies to this case. This subdivision of said article provides that suits may be commenced against such corporation in any county in which the cause of action, or a part thereof, arose. If this cause of action or “any part thereof” arose within Lubbock county, then the county court of Lubbock county has jurisdiction of this cause.

Is the right asserted by plaintiffs against defendant bank such a cause of action, or any part of such a cause oí action, to entitle them to bring defendant bank into court in Lubbock county? We think it-is.

The Supreme Court of Texas, in the case of Phillio v. Blythe, 12 Tex. 127, defines cause of action “to consist as well of the right of the plaintiff in the action, as of the injury to such right.”

The plaintiffs had been injured by the false representations of the defendant Steiger; they had to establish the falsity of such allegations before they could claim the goods in controversy as their own. These facts must also be established in order to entitle them to recover as against the defendant bank, and the conversion, if knowingly made at the time the bank had knowledge of the falsity of the representations made by defendant Steiger, would, in our opinion, render the action against it a proper action to be joined with the suit against Steiger upon the ground of false representations, and their conversion under the circumstances alleged in the petition clearly presents a matter that shows to arise, in part at least, in Lubbock county and out of the same transaction. Johnson v. Stratton, 6 Tex. Civ. App. 431, 25 S. W. 683; Blount-Decker Lumber Co. v. Farmers’ Lumber Co. (Tex. Civ. App.) 211 S. W. 247.

We are of the opinion, also, that the defendant bank is a proper party to this suit, and that suit can be maintained against it in Lubbock county under subdivision 9 of article 1830. ' The facts stated and proved establish the guilt of Steiger of a crime, and, as the bank is charged with the conversion of the property,' it is so connected with the whole transaction as to make it a proper jbarty. Garden Valley Mercantile Co. v. Falkner (Tex. Civ. App.) 189 S. W. 300.

We therefore think the action of the trial court, in overruling defendant’s plea of privilege, was correct.

Hence we affirm the judgment of that court. 
      
       — rUror other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     