This is a plea of privilege case. It was instituted in the 73d District Court of Bexar County by Mrs. J. H. Gilbert and others against Roy J. Gilbert and others. The suit, as disclosed by the petition, is for partition of personal property which is being used by the Roy J. Gilbert Truck Lines. Roy J. Gilbert and his wife, George Gilbert, filed a plea of privilege to be sued in Webb County, the county of their residence. A controverting affidavit was filed by plaintiffs. The plea of privilege was sustained by the trial court and the cause ordered transferred to Webb County, from which order the plaintiffs have prosecuted this appeal.
We are of the opinion that the trial court committed error in sustaining the plea of privilege. Subdivision 13 of Art. 1995, Vernon's Ann.Civ.Stats., provides, in effect and among other things, that a suit for the partition of personal property may be brought in the county where the property or a part thereof may be, or in the county where one or more defendants may reside. This subdivision contains other provisions relating to the partition of land, which are immaterial here. In the case at bar the petition discloses that this is a suit for the partition of personal property, and the evidence shows that a part of the property is located in Bexar County, and that at least two of the defendants reside in Bexar County.
Where venue is based in whole or in part upon the nature of the lawsuit such fact is ascertained by an examination of plaintiff's petition unless fraud is both pleaded and proved. Eastham v. Farmer, Tex. Civ. App.193 S.W.2d 568; Tennessee Gas Transmission Co. v. Heard, Tex. Civ. App. 190 S.W.2d 518.
Where venue is based in whole or in part upon the location of property or the residence of a defendant, such facts should be established by the preponderance of the evidence. George v. Northwest Engineering Company, Tex. Civ. App. 156 S.W.2d 576.
Appellees contend, however, that only a small portion of the personal property to be partitioned was shown to be located in Bexar County. This is true, but the statute says "a part thereof," and such provision would include a very small part of the property.
Appellees next contend that there is no controversy between the plaintiffs *Page 932 who reside in LaSalle County and the defendants who reside in Bexar County. We think this is immaterial. Quite often in a partition suit there is no real controversy between any plaintiff and any defendant other than that they simply desire to have the property divided. Again, there is nothing in subdivision 13 which indicates that there would have to be a controversy between the plaintiff and a resident defendant before venue could be fixed in the county of the residence of such a defendant.
Appellees next contend that subdivision 13 should be construed to mean that whenever a defendant asserts an adverse claim to or interest in the property to be partitioned, or seeks to recover the title to the same then venue would lie exclusively in the county of the residence of such defendant, unless all the property was located in one county in which case venue would be fixed by the provisions of subdivision 10 of Art. 1995, Vernon's Ann.Civ.Stats. To so hold would give to subdivision 13 a meaning not there expressed.
Subdivision 13 reads as follows:
"13. Partition. — Suits for the partition of land or other property may be brought in the county where such land or other property, or a part thereof, may be, or in the county in which one or more of the defendants reside, or in the county of the residence of any defendant who may assert an adverse claim to or interest in such property, or seeks to recover the title to the same. Nothing herein shall be construed to fix venue of a suit to recover the title to land."
The phrase, "or in the county of the residence of any defendant who may assert an adverse claim to or interest in such property, or seeks to recover the title to the same," does not restrict or in any way limit the prior provision, "or in the county in which one or more of the defendants reside." If the Legislature had intended the latter provision to be a limitation or a restriction upon the prior provision it could very easily have said so, in so many words. It is significant that the last sentence of subdivision 13 provides that nothing therein contained shall be construed as fixing the venue of a suit to recover the title to land, but conspicuously says nothing about suits to recover the title to personal property.
It is true that in the case of Pena v. Sling, 135 Tex. 200,140 S.W.2d 441, 128 A.L.R. 1223, Justice Critz, speaking for the Supreme Court, said, in effect, that the provision, "or in the county of the residence of any defendant who may assert an adverse claim to or interest in such property, or seeks to recover the title to the same," applies only to personal property, but he did not go further and say that it restricted or limited the prior provision in subdivision 13, to the effect that suits for the partition of personal property may be brought in the county in which one or more of the defendants reside.
Appellees call to our attention the fact that at one time subdivision 13 contained a phrase in connection with the provision that a partition suit might be brought and prosecuted in the county of the residence of any one or more of the defendants, reading as follows: "Notwithstanding any one or more of such defendants may assert an adverse interest in such property, or claim to be the owner thereof, or seek to recover the title to the same," which phrase by amendment has been eliminated from the subdivision. Appellees deduct from such action by the Legislature that it intended to provide, in effect, that where one defendant asserted title to the personal property sought to be partitioned, then, and in that event, venue would lie only in the county of the residence of that defendant or in the county where all the personal property was located. We cannot accept this as a proper deduction. As we have said before, if this was what the Legislature intended it could very easily have said so. We cannot give such meaning to the language which the Legislature did use in amending subdivision 13.
It occurs to us that the petition revealing on its face that this is a suit for the partition of personal property, and the evidence establishing that a part of that property is located in Bexar County and, further, that some of the defendants who are proper and necessary parties to the partition suit reside in Bexar County, venue was shown to exist in Bexar County. *Page 933
The order of the trial court sustaining the plea of privilege is reversed and it is here ordered that the plea of privilege be overruled.
Reversed and rendered.