
    SHEAR CO. v. NEELY.
    (No. 9105.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    May 17, 1919.)
    Pleading <§==>111 — Plea off Privilege — Proceedings on Issue.
    Where a suit was brought for circulation of a libel in T. county in the district court thereof against defendant domiciled in M. county, and defendant pleaded privilege, and after filing controverting affidavit plaintiff for the first time and in an amended petition alleged circulation of the libel in H. county without praying removal thereto, and the court found it had not been circulated in T. county, the case should have been transferred to M. county^ and it was error to transfer it to H. county, the circulation of the libel therein not being in issue, in view of Rev. St. 1911, arts. 1832, 1833, 1902, and article 1903 amended by Acts 35th Leg. c. 176 (Vernon’s Ann. Civ. St. Supp. 1918, art. 1903), relating to pleas of privilege.
    Appeal from District Court, Tarrant County; Bruce Young, Judge.
    Suit by R. P. Neely against the Shear Company. Prom an order transferring the case to Harris County, the defendant appeals.
    Affirmed in part, and reversed in part.
    J. D. Williamson, of Waco, for appellant.
    Miller & Miller, of Port Worth, for appel-lee.
   CONNER, C. J.

R. P. Neely instituted this suit in a district court of Tarrant county against the Shear Company, domiciled at Waco, McLennan county, to recover damages caused by the circulation in Tarrant county of a libelous telegram sent by the Shear Company to A, E. Peden, food administrator of Texas, and by the latter sent to the plaintiff at Ft. Worth, Tex., where it was circulated and published as stated.

The defendant on May 1, 1918, in due form, time, and order, presented its plea of privilege to be sued in McLennan county where it had its domicile. To this plea, the plaintiff presented his controverting affidavit, alleging in substance the circulation of the libel in Tarrant county, 'which it was averred constituted a criminal offense under our laws, and which therefore brought the case within one of the exceptions (subdivision 9) to article 1830, relating to the venue of suits and specifying the exceptions to the general rule that a defendant is entitled to be sued in the county of his domicile.

■ The controverting affidavit, which under our statutes on the subject raised the issue on the plea of privilege, was filed on the 9th day of May, 1918. Thereafter on June 15, 1918, the plaintiff filed his first amended original petition setting out, as before, the libelous matter, and again alleged its circulation in Tarrant county, but for the first time further alleged its circulation also in Houston, Harris county. The prayer was, “the defendant having already been cited and having entered its voluntary appearance herein,” for his actual and exemplary damages as in plaintiff’s original petition.

On the same day, June 15, 1918, as is recited in the judgment, “came on to be heard the plea of privilege filed herein by defendant, the Shear Company, and the controverting affidavit thereto filed herein by the plaintiff, R. P. Neely.” The result of the hearing was the findings that the “plea of privilege was well taken,” and that “venue does not exist over” the cause of action in Tarrant county, but did in Harris county, and “likewise” in McLennan' county, “the domicile and residence” of the defendant.

It was therefore ordered that the defendant’,s plea of privilege be “sustained,” and that the suit be transferred to the district court of Harris county. Prom this order the defendant has duly prosecuted an appeal.

But a single question is presented for our determination. Appellant insists that the suit should.have been transferred to the district court of McLennan county, rather than to Harris county. Appellee controverts this proposition and contends that the court, under the findings and circumstances, had the option to transfer the cause to either Harris county or McLennan county, and that therefore his order transferring it to Harris county cannot now be disturbed. In support of this contention, appellee cites Belo & Co. v. Wren, 63 Tex. 686; Rev. Stats, of Texas of 1911, art. 1832; Indiana & Ohio Live Stock Ins. Co. v. Kirenek, 144 S. W. 1181; A., T. & S. P. Ry. Co. v. Stevens (Sup.) 206 S. W. 921.

We are of the opinion that the court erred in his ruling, and that the cause should have been transferred to the district court in Mc-Lennan county.

Article 1902 of the Revised Statutes provides that a defendant in his answer may plead as many several matters, whether of law or fact, as he shall think necessary for his defense and which may be pertinent to the cause, etc. The next article, as amended by the Act of April 2, 1917, chapter 176, § 1 (1 Vernon’s Statutes, 1918 Supp. p. 443), evidently treats a “plea of privilege” as one among the pleas a defendant has the right to present under said article 1902. Moreover, the plea of privilege, under the amended article referred to, when filed, “shall be prima facie proof of the defendant’s right to change of venue,” and it is further specially provided that, if “a plaintiff desires to controvert the plea of privilege, he shall file a controverting plea under oath setting out specifically the fact or facts relied upon to confer venue of such cause on the court where the cause is pending.” And that “upOn the filing of such controverting plea the judge or justice of the peace shall note on same a time for a hearing of the plea of privilege, provided, however, that the hearing shall not be had until a copy of such controverting plea, including a copy of such notation thereon, shall have been served on each defendant or his attorney, for at least ten full days exclusive of the days of service and of hearing.” As it seems to us, a consideration of these articles referred to brings the plea of privilege and the plaintiff’s controverting affidavit thereto within the rules that ordinarily apply to pleadings. As noted, the plea of privilege is not only designated as a pleading, but it is particularly provided that the controverting affidavit, before a hearing is authorized, shall be served upon the defendant or his attorney at least ten full days exclusive of the day of service and of hearing, thus evincing the legislative intent that a defendant presenting a plea of privilege should be fully informed by the plaintiff’s controverting affidavit, if any, of what he will be called upon to meet. If so, the hearing of the plea of privilege, as in case of a trial upon other issues, should be confined to the allegations of the plea of privilege and to the averments of the controverting affidavit in accordance with the familiar rule that the allegata and the pro-bata must correspond. In the case before us, as will be seen from our statement, there was no allegation in the plaintiff’s controverting affidavit which would authorize the court to enter upon the investigation of whether the libel in question had been circulated in Harris county. The only allegation to that effect was in the.plaintiff’s first amended petition filed on the day of hearing of the plea of privilege and of which nothing in the record indicates that the defendant had any actual notice. Nor in the amended petition in which for the first time the allegation that the libel had been circulated in Harris county, was there a prayer for a transfer of the cause to Harris county. We therefore think that it was the duty of the court, upon the hearing of the plea of privilege under consideration, after finding, as he did, that the libel had not been circulated in Tarrant county, as alleged in plaintiff’s original petition and in his controverting affidavit, to have transferred the case to Mc-Lennan county, where it is admitted the defendant has its domicile.

Nor do we think the statutes or decisions cited by appellee require a different conclusion. Article 1832, cited in behalf of appel-lee, reads as follows:

“If a plea of privilege is sustained, the cause shall not be dismissed, but the court shall transfer said cause to the court having jurisdiction of the person of the defendant therein; and the costs incurred prior to the time such suit is filed in the court to which said cause is transferred shall be taxed against the plaintiff.”

In this connection, we wish to quote the following articles of the statutes which we think are pertinent to the question under consideration. Article 1830, of the Revised ¡Statutes in general terms provides that — •

• “No person who is an inhabitant of this state shall be sued out of the county in which he has his domicile, except in the following cases.”

Then follow some 29 exceptions to the general rule thus stated, among which is the following (paragraph 9 of the article):

“Where the foundation of the suit is some crime, or offense, or trespass, for which a civil action in damages may lie in which case the suit may be brought in the county where such crime, offense, or trespass was committed, or in the county where the defendant has his domicile.”

Article 1833, which immediately follows article 1832, cited by appellee, thus reads:

“Wherever a plea of privilege to the venue, to be sued in some other county than the county in' which the suit is ponding, shall be sustained, the 'court shall order the venue to be changed to the proper court of the county having jurisdiction of the parties and the cause; and the clerk shall make up a transcript of all the orders made in said cause, certifying thereto officially under the seal of the court, and transmit the same, with the original papers in the cause, to the clerk of the court to which the venue has been changed; provided, that nothing herein shall prevent an appeal from the judgment of the court sustaining a plea of privilege.”

Tbe circulation of a libel in a county undoubtedly gives to the proper court of the county where the circulation occurs jurisdiction to try the cause, for the circulation of a libel under our criminal law constitutes a crime for which a civil action for damages will lie. And reading the statutes as a whole, we think it plainly apparent that a clear distinction is to be observed between jurisdiction over the “cause” and. jurisdiction over the “person,” and, if so, construing articles 1832 and 1833 on the same subject together, as should be done, and giving to each its full force and effect, if it can be done, which is also the adopted rule - of construction that upon sustaining a plea of privilege it is the duty of the court, as provided in article 1833, to order the venue changed to the proper court of that county which has jurisdiction over both the cause and the person. In the case before us, the only court having jurisdiction of both cause and person was the district court of McLennan county. It is true the district court of Harris county, or of any other county in Texas in which the libel in question might have been circulated, had jurisdiction of the cause and could have compelled the appearance and answer of the defendant. See Belo & Co. v. Wren, supra. But within the meaning of the law on the subject as a whole no other county than that of a court of McLennan county had jurisdiction of both cause and person. It is also true that expressions are to be found in the cases of Insurance Oo. v. Krenek, and Ry. Co. v. Stevens, supra, cited in behalf of appellee, that may seem to authorize the court in sustaining a plea of venue to transfer the cause at his own option to any county having jurisdiction of it. But we think there is a clear distinction between the case of Ry. Co. v. Stevens by our Supreme Court and the case now before us. In the Stevens Case 'in the plea of' privilege of the railway company, the railway company alleged that it was a foreign corporation and that it neither did business nor had an agent in El Paso county where the suit had been instituted, but that it did, in fact, do business in the counties of Potter, Hemphill, Galveston, Johnson, and Cooke, and contended that it was suable in one of those counties, if at all. The plea of privilege was sustained, and it seems evident, under the circumstances of that case, that the court had the power to transfer the venue of the cause to any one of the counties named by the defendant, which in fact had jurisdiction. The order in either case would be in exact accordance with the prayer of the plea, and the defendant could have no cause of complaint. In the case of the Insurance Company v. Krenek, supra, the order changing the venue was on a motion for rehearing set aside and the jurisdiction of the trial court sustained. What was said therefore on the subject of the court’s duty in transferring the venue may be termed, perhaps not inaptly, to be mere obiter and not of controlling effect. At least, we are inclined now and here to give that case the application insisted upon by appellee.

We conclude that the judgment below should be affirmed in so far as the defendant’s plea of privilege was sustained, but reversed in so far as the venue of the case .was transferred to Harris county, it now and here being ordered that the venue of this cause be transferred to McLennan county in accordance with the prayer of the defendant’s plea of privilege, and the clerk will certify this conclusion to the court below for observance. 
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