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Rule 93. Certain Pleas To Be Verified
TEXT
A pleading setting up any of the following matters, unless the truth of such matters appear of record, shall be verified by affidavit.
a. That the suit is not commenced in the proper county.
b. That the plaintiff has not legal capacity to sue, or that the defendant has not legal capacity to be sued.
c. That the plaintiff is not entitled to recover in the capacity in which he sues, or that the defendant is not liable in the capacity in which he is sued.
d. That there is another suit pending in this State between the same parties involving the same claim.
e. That there is a defect of parties, plaintiff or defendant.
f. A denial of partnership as alleged in any pleading as to any party to the suit.
g. That any party alleged in any pleading to be a corporation is not incorporated as alleged.
h. A denial of the execution by himself or by his authority of any instrument in writing, upon which any pleading is founded, in whole or in part, and charged to have been executed by him or by his authority, and not alleged to be lost or destroyed. Where such instrument in writing is charged to have been executed by a person then deceased, the affidavit shall be sufficient if it state that the affiant has reason to believe and does believe that such instrument was not executed by the decedent or by his authority. In the absence of such a sworn plea, the instrument shall be received in evidence as fully proved.
i. A denial of the genuineness of the indorsement or assignment of a written instrument upon which suit is brought by an indorsee or assignee and in the absence of such a sworn plea, the indorsement or assignment thereof shall be held as fully proved. The denial required by this subdivision of the rule may be made upon information and belief.
j. That a written instrument upon which a pleading is founded is without consideration, or that the consideration of the same has failed in whole or in part.
k. That an account which is the foundation of the plaintiff's action, and supported by an affidavit, is not just; and, in such case, the answer shall set forth the items and particulars which are unjust.
l. That a contract sued upon is usurious. Unless such plea is filed, no evidence of usurious interest as a defense shall be received.
Source: Arts. 573, 574, 1999, 2010, 3734, and 5074.
Change: The basic statute relating to sworn pleadings was Art. 2010. With it have been combined provisions from a number of other specific statutes requiring sworn pleas. No change of meaning has been intended insofar as the combinations, as such, are concerned. The scope of sworn denials has, however, been broadened. Subdivision b will under this rule include the plea that “the defendant has not legal capacity to be sued.” Subdivision c has been extended to include a denial of defendant’s liability in the capacity in which he is sued. In subdivision d the term “cause of action” has been replaced by the word “claim.” Subdivisions f and g apply to allegations in any pleading, not merely to the petition as formerly stated in Art. 2010.
Oct. 29, 1940, eff. Sept. 1, 1941.
AMENDMENTS
March 31, 1941, eff. Sept. 1, 1941
Sept. 20, 1941, eff. Dec. 31, 1941
June 16, 1943, eff. Dec. 31, 1943
Oct. 12, 1949, eff. March 1, 1950
July 21, 1970, eff. Jan. 1, 1971
July 22, 1975, eff. Jan. 1, 1976
ADVISORY OPINIONS
(No. 104) Question: Rule 86 of our civil practice provides for filing plea of privilege to be sued in the county of one's residence. What should be the contents of a plea where one is sued for land that is not situated in the county where the suit is brought, e.g. trespass to try title?
Answer: The jurisdiction of the courts and the venue of actions therein were not extended or limited by the adoption of the rules (Rule 816).
Subdivision 14 of the general venue statute (Article 1995) provides that suits for the recovery of lands or damages thereto “must be brought in the county in which the land, or a part thereof, may lie." While this requirement appears to be mandatory, it is settled that this subdivision prescribes the venue in such actions, that it does not relate to jurisdiction and may therefore be waived. South Texas Dev. Co. v. Williams, 130 Tex. 217, 107 S.W.2d 378 (1937).
If a suit in trespass to try title is not commenced in the county where the land or some part thereof lies, the defendant who prefers to try the case in the county where the land lies rather than in the county where the suit is brought may seasonably claim the right to have the case transferred to the county where the land lies. In such event the plea of privilege, sworn to and filed in due time, should allege that it appears from plaintiff's petition, if that be the case, or that, as a matter of fact, the suit is not brought in the county where the land or some part thereof lies as required by subdivision 14 of Article 1995 and that the cause should be transferred to that county. In this sense the statute is mandatory and the cause must be transferred. Rule 93 (a); Shell Petroleum Corp. v. Grays, 122 Tex. 491, 62 S.W.2d 113 (1933); South Texas Dev. Co. v. Williams, 130 Tex. 217, 107 S.W.2d 378 (1937). If, however, the defendant does not file a plea of privilege to be sued in the county where the land lies, answer should be filed within the time required by the rules in the county where the suit is brought and the trial should be there proceeded within due course.
The Supreme Court has held that a plea of privilege under Article 2007, which is substantially the same as Rule 86, is sufficient to cover all cases of personal privilege and all cases of mere venue as provided by the various provisions of Articles 1995 and 2390 relating to venue. Jeffries v. Dunklin, 131 Tex. 289, 115 S.W.2d 391 (1938).
Therefore, if the defendant resides out of the county in which the suit is pending so as to authorize the affidavit of nonresidence, the plea of privilege can follow the exact form outlined by Rule 86, and it will be sufficient to cover subdivision 14 of the Venue Statute without any express allegation concerning the location of the land. But, as hereinabove stated, an alternative form is authorized under the decisions, and the plea can omit allegations as to the defendant's residence and embody in lieu thereof the allegations as to the location of the land and the nature of the suit as above set out. Either form is sufficient under the rule as construed by the decisions.
7 Tex. B.J. 14 (1944) reprinted in 8 Tex. B.J. 38 (1945).