FITTING SUPPLY CO., INC. v. Bell County Solar Control Corp.

605 S.W.2d 856 (1980)

FITTING SUPPLY COMPANY, INC., Petitioner, v. BELL COUNTY SOLAR CONTROL CORPORATION et al., Respondents.

No. B-9227.

Supreme Court of Texas.

July 23, 1980.

Rehearing Denied October 15, 1980.

Clark & Vannatta, John Malone, Waco, for petitioner.

James O. Cure, Temple, for respondents.

PER CURIAM.

This is an appeal of a trial court judgment sustaining a plea of privilege. This Court's jurisdiction is based on a conflict between the opinion of the court of civil appeals and the opinion in Hugh Robinson Farm Machinery Inc., et al. v. Henry Wied, 593 S.W.2d 731 (Tex.Civ.App.Houston [1st Dist.] 1979, no writ).

The plaintiff, Bell County Solar Central Corp., filed a usury suit under Art. 5069-1.03 Tex.Rev.Civ.Stat.Ann. (Vernon 1980) in Bell County, where plaintiff resides. The defendant, Fitting Supply, Inc., filed a plea of privilege to be sued in McLennan County. The plaintiff's controverting affidavit adopted the petition by reference. The trial court sustained the plea of privilege, and the court of civil appeals reversed and remanded, holding that Art. 5069-1.06(3) required only that the plaintiff prove that he resides in the county where the suit is filed in order to maintain venue there. 593 S.W.2d 118.

This holding is in conflict with Universal Credit Co. v. Dunklin, 129 Tex. 324, 105 S.W.2d 867 (1937). This case clearly requires a plaintiff to allege and prove both that he has a meritorious cause of action, and that he resides in the county of suit.

Accordingly, the application for writ of error is granted, and without hearing oral argument, it is ordered that the judgment of the court of civil appeals be reversed, and the judgment of the trial court transferring this cause to McLennan County, Texas, is affirmed. Rule 483. Tex.R.Civ. Pro.