Hamilton Et Al. v. Jenkins

W. O. MURRAY, Justice. This is an appeal from an order overruling the plea of privilege of the defendants. The suit was instituted by G. K. Jenkins as plaintiff against P. H. Hamilton and C. S. Dellis as defendants, in the 92d District Court of Hidalgo County, Texas, alleging that the defendants in the clearing of certain lands adjacent to a cotton crop of plaintiff piled brush and set fire to the same and that the heat and smoke from such fire damaged plaintiff's cotton crop. Defendants filed a joint plea of privilege to be sued in Mills County, the county of their alleged residence. Plaintiff controverted the plea of privilege, alleging that the defendants were residents of Hidalgo County and, in the alternative, were transient persons suable in Hidalgo County. Plaintiff alleged further that defendants had committed a trespass in Hidalgo County, and that venue was maintainable in that county under the provisions of Subdivision 9 of Article 1995, Vernon's Ann.Civ.Stats. The trial court found that the defendants resided in Mills County, that they were not transient persons, but further found that they had committed a trespass in Hidalgo County, and overruled their plea of privilege.