inafter stated. In addition to this plea of privilege, these defendants at the same time filed an answer in which C. C. Tucker and R. E. Butler, who were not parties to the plea of AP-privilege, joined. The answer, in substance, alleged that the payees of the note, J. Crouch & Son, and J. A. Wood, one of the signers thereto, had, for the purpose of deceiving and defrauding, conspired together in fraudulently representing the value and quality of a certain hav-horse owned by J. Crouch & Son which defendants, by the means stated, had been induced to purchase, and for which they gave the note sued upon and another of like amount, which they had theretofore paid to J. Crouch tiff, Hickman, for a cancellation of the note & Son. The prayer was, as against the plainbona fide owner and holder of the note, or, if sued upon, it being alleged that he was not a so, a purchaser after its maturity, and for judgment against said J. Crouch & Son and said J. A. Wood, jointly and severally, or against such of them as are brought within the jurisdiction of the court,' for the sum alleged to have been paid to J. Crouch & Son the note previously paid. It should, perhaps, be further stated in this connection that the note as sued upon had, among other indorsements, the following: 'Received of J. A. Wood one hundred and fifty dol. $150.00, this being his pro rata of the within note, this April 1st, 1908. J. Crouch & Son.'

HICKMAN v. SWAIN et al. (No. 2372.) (Supreme Court of Texas. June 3, 1914.) 1. APPEAL AND ERROR ( 70*)-ORDERS PEALABLE - PLEA OF PRIVILEGE-ORDER GRANTING PLEA-RIGHT TO APPEAL.

Rev. St. 1911, art. 1833, provides that whenever a plea of privilege to the venue shall be sustained the court shall order the venue changed to the proper court of the county ing jurisdiction of the parties and the cause, providing that nothing contained therein shall prevent an appeal from the judgment of the court sustaining a plea of privilege. Held, that an order sustaining a plea of privilege is appealable before trial.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 367-378, 386, 411; Dec. Dig. § 70.*]

2. VENUE (§ 77*)-Change of VENUE-APPLICATION-WAIVER.

Where a plea of privilege is filed in due order of pleading, the subsequent filing of a plea over against plaintiff did not affect a waiv-on er of the plea of privilege.

[Ed. Note. For other cases, see Venue, Cent. Dig. §§ 59, 134, 138; Dec. Dig. § 77.*] 3. VENUE (§ 78*) — CHANGE OF VENUE - PLEA OF PRIVILEGE-EFFECT.

The granting of a plea of privilege applied for by certain of the defendants was effective to transfer the whole case, both as to all parties and subject-matter, to the county where the defendants filing such plea were entitled to have the case tried.

[Ed. Note. For other cases, see Venue, Cent. Dig. § 135, 136; Dec. Dig. § 78.*]

Certified Question from Court of Civil Appeals of Second Supreme Judicial District. Action by C. W. Hickman against M. F. Swain, and others. On certified questions from the Court of Civil Appeals.

Wm. J. Berne, of Ft. Worth, for appellant. D. J. Brookreson, of Benjamin, and B. K. Goree, of Ft. Worth, for appellees.

"The trial court in due order heard the plea

of privilege, and, having found, as the evidence justifies, that its material allegations were true, and that the answer to the merits had been filed subject to the action of the court upon the plea of privilege, sustained the plea of privilege, and, as to all parties, ordered the cause transferred to the district court of Knox county, Tex., and from this order the plaintiff in the suit prosecutes an appeal, which is now pending before us.

"In this state of the record we deem it advisaquestions, viz.: ble to certify to your honors the following

"First. Whether an appeal from such an or

der is allowable at all under chapter 4 of title 30 of the Revised Statutes, as amended by the act of the Thirtit Legislature approved April 18, 1907? See General Laws 1907, p. 248.

"Second. If so, whether the answer of the defendants who joined in the plea of privilege is of such affirmative character as to constitute a waiver on their part of the plea of privilege to be sued in Knox county?

"And third. If not, did the court err in transferring the cause as to those defendants, Tucker, Butler, and Wood, who failed to join in the plea of privilege?"

BROWN, C. J. The honorable Court of Civil Appeals of the Second Supreme Judicial District has certified to this court the following statement and questions: “Appellant, C. W. Hickman, alleged to reside in Tippecanoe county, Ind., instituted this suit in the district court of Tarrant county, Tex., against M. F. Swain and nine other persons, all of whom were alleged to reside in Knox county, Tex., upon a promissory note executed by the defendants named on March 31, 1908, for the sum of $1,500, and payable to the order of J. Crouch & Son at the Farmers' State Bank of Knox City, Tex., on or before October 1, 1910. It was alleged that J. Crouch & Son had indorsed said note in blank to the plaintiff, whereupon each defendant' became liable and promised to pay the amount specified in the note. It was further alleged that J. Crouch & Son was a firm composed of Jeptha Crouch and George Crouch, who both resided in the state of Indiana, and who were consequently not made parties to the suit by the petition. All defendants named in the petition were either cited or answered as hereinafter stated, save the defendant J. A. Wood, who does not appear to have been cited or to have joined in an answer of any kind. Of the defendants named in the plaintiff's petition, appellee M. F. Swain and seven others joined in a plea of privilege to be sued in Knox county. The plea was duly verified, filed, and presented, as here•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

[1] The following articles of the Revised Statutes govern the action of the court on the questions submitted:

"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." Article 1832, R. S. 1911.

"Whenever a plea of privilege to the venue, to be sued in some other county than the county in which the suit is pending, 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." Article 1833, R. S. 1911.

the death of the husband, wife, or both, the homestead shall descend in like manner as other real property, but shall not be partitioned time of the surviving husband or wife, or so among the heirs of deceased during the lifelong as the survivor may elect to use or occupy it as a homestead, or so long as the guardian order of proper court to use and occupy it, and of minor children may be permitted under the Rev. St. 1911, arts. 3235, 3413, 3414, and 34213428, inclusive, relative to setting apart the pre-head of a family dies intestate leaving a widow, homestead and its liability for debts, when the minor child, or unmarried daughter, whether his estate is solvent or insolvent, the homestead, whether set apart by the probate court for the use of such members of the family or not, descends and vests in all the heirs of the decedent, subject to the right of the widow and minor children to use and occupy it, absolutely exempt from any present or future liability for the decedent's debts, except such as the Constitution permits to be secured by a lien thereon, and that status is not affected by the subsequent voluntary sale or abandonment of the homestead.

Prior to the enactment of the above statutory provisions, when the plea of privilege was sustained, the case was dismissed, from which judgment an appeal would lie. The proceeding was the same then as now, except that the case will not be dismissed. The judgment would be interlocutory, from which no appeal would lie, unless the right is served by this language:

"Provided, that nothing herein shall prevent an appeal from the judgment of the court sustaining a plea of privilege."

If the plea of privilege in this case had been tried under the former law, the case would have been dismissed, and plaintiff could have appealed, and the action sustaining the plea of privilege would have been revised. If the plea had been overruled, the defendant, upon appeal, could have had it reversed. The evident purpose of the pro' viso to article 1833 was to preserve to the plaintiff the right of appeal which existed before that article was enacted. If the law be construed so as to require the plaintiff to await a trial in the county to which it was transferred, the right to have the court's action revised would be practically denied. The construction we give to the proviso serves the rights of both parties, and will prevent the delays and expense of a trial the judgment in which might be reversed on the issue of venue alone, requiring a second trial on the merits. The language of the proviso to article 1833 cannot be applied otherwise than as saving to the plaintiff the right of appeal as it formerly existed in such matters, constituting an exception to the general rule that an appeal cannot be prosecuted from interlocutory orders or judgments.

[Ed. Note. For other cases, see Homestead, Cent. Dig. § 257; Dec. Dig. § 146.*]

2. HOMESTEAD (§ 145*)-RIGHTS OF SURVIVING SPOUSE-LIABILITY FOR DEBTS.

Regardless of solvency or insolvency, a surviving husband or wife is entitled to hold and use the homestead, exempt from forced sale for the payment of his or her own debts, so long as he or she may choose to do so, even pre-ber of the family; but the subsequent abandonthough such spouse be the sole remaining memment of the homestead ends its right to exemption against debts of that character.

HOEFLING et al. v. HOEFLING et al. (No. 2404.) (Supreme Court of Texas. May 28, 1914.) 1. HOMESTEAD (§ 146*)-RIGHTS OF SURVIV- LIABILITY FOR

―――

ING MEMBERS OF FAMILY DEBTS. Under Const. art. 16, § 50, providing that the homestead of a family shall be protected from forced sale for the payment of all debts, except for the purchase money thereof, taxes and work and material used in constructing improvements, and that no mortgage or other lien shall be valid, except for the purchase money or improvements, section 52, providing that on

[Ed. Note. For other cases, see Homestead, Cent. Dig. §§ 268, 277, 280, 285; Dec. Dig. § 145.*]

Error to Court of Civil Appeals, Fourth Supreme Judicial District.

Suit for partition by L. Thulemeyer against Dorothea Hoefling and others. A judgment in favor of the defendants Mary Hoefling and others was reversed by the Court of Civil Appeals, and they bring error. Affirmed.

[2] We answer that the appeal was authorized in this case. If the plea of privilege was filed in the due order of pleading, the filing thereafter of a plea over against plaintiff did not affect the right of the defendants to insist upon the transfer of the case to the county in which they resided.

[3] The granting of the plea of privilege HAWKINS, J. William Hoefling, Sr., herehad the effect to transfer to Knox county the inafter called decedent, and his wife, Dorocase entirely as to parties and subject-mat-thea, owned lot 9 in block 16, city block 432, ter of the suit and plea of defendants over in San Antonio, as community property, and against plaintiff.

made their home thereon from a date prior to September 17, 1895, until he died in November, 1898. Decedent left surviving him his said wife, who qualified as administratrix of his estate, and their three children, Rudolph, Emma, who married Wolfe, and Henry, who conveyed to plaintiff in error, L. Thulemeyer, an undivided one-eighth interest in said lot; also four grandchildren, W. R., Daisy, who married Voight, G. A., and Willie, children of another son, William Hoefling, Jr., whose death preceded that of decedent; also Mary Hoefling, who was the widow of said deceased son and mother of

said grandchildren. By order of the pro

Henry E. Vernor, Clark & Bliss, and Denman, Franklin & McGown, all of San Antonio, for plaintiffs in error.

passed forever beyond the reach of creditors, | of our general statute of descent and distriand the loss of its homestead character could bution, subject, however, to the constitutionnot instill life into an invalid lien, whether al and statutory right of the widow and of the same was evidenced by mortgage or oth- the guardian of the minor children of the deer instrument, or by a judgment"-and that, cedent to use and occupy it as a home, but abif plaintiffs in error did not so contend, "they solutely exempt from any and all present or are in no better position when they claim future liability for such decedent's debts, and that a creditor's lien, which had not attach- so forever free from all claims of his credied to the homestead before, arose when the tors, whether they be approved by the probate abandonment took place," and accordingly court or not, except such claims as our Conreversed said judgment of the district court stitution permits to be secured by a lien upon in favor of Mary Hoefling, and decreed that the homestead; and that status, in so far as she take nothing by her cross-action, that | rights of general creditors of such decedent said lot 9 be partitioned, one half to Doro- are concerned, cannot possibly be affected by thea, and the other half to said children and subsequent voluntary sale or abandonment grandchildren of decedent, and L. Thulemey- of such homestead property. American Bonder, who bought a child's share, in the pro- ing Company of Baltimore v. Logan, 166 S. portions indicated in said judgment of the W. 1132, decided on a former day of this district court, and that said property be sold term, and cases cited. But does the same for such partition, and the proceeds distrib-rule apply where such estate is solvent? If uted among said owners according to their so, said judgment of the Court of Civil Apsaid respective shares. peals should be affirmed.

In Givens v. Hudson, 64 Tex. 471, and in Roots v. Robertson, Adm'r, 93 Tex. 365, 55 S. W. 308, the case turned upon the point that no such constituent of the family survived the deceased owner of the homestead; consequently all question as to solvency or insolvency of his estate was wholly immaterial. See, also, Phillips v. Price, 12 Tex. Civ. App. 408, 34 S. W. 784; Wilkins v. Briggs, 48 Tex. Civ. App. 596, 107 S. W. 135.

Hall v. Fields, 81 Tex. 553, 17 S. W. 82, dealt with the rights of the decedent's divorced wife and of their minor children as against the rights of a purchaser of homestead property from the executor of decedent's will. The case did not involve rights of his creditors.

Mary Hoefling and those claiming under her, as stated, alone applied for a writ of error, which was granted. They complain, first, of the action of the Court of Civil Appeals in treating the estate of said decedent as insolvent, and, secondly, of its holding th whether said estate was solvent or insolvent, the homestead property at his death descended to and vested in his heirs, exempt from his debts, and forever beyond the reach of his creditors, and that consequently, upon abandonment of the homestead by the widow, plaintiffs in error, as creditors of his estate, had no right to subject said property to payment of their said claim. In support of their said first ground of complaint, plaintiffs in error point out the facts that no issue as to solvency or insolvency of the esta was pleaded or submitted to the jury, and contend that no such issue was made by the evidence. As to that entire phase of this case, we deem it sufficient to say this: It is obvious that, if the Court of Civil Appeals be correct in its view that it is wholly immaterial whether said homestead was solvent or insolvent, its action in treating the estate as insolvent resulted in no practical injury to plaintiffs in error, so, in testing their rights in the premises, we will give them full benefit of their contention upon that point, and will consider their said second ground of error upon the assumption that said estate was in fact solvent.

[1] Unquestionably, under our present Constitution and statutes and the decisions of this court, whenever the head of a family dies intestate, leaving surviving him one or more constituents of the family, such as a widow, or a minor child, or an unmarried daughter remaining with the family, and his estate is insolvent, his homestead property, whether it be set apart by the probate court for the use and benefit of such surviving constituent or constituents of the family or not, descends and vests in all the heirs of such

McAllister v. Godbold (Civ. App.) 29 S. W. 417, does not disclose whether the estate of the testator was solvent or not; moreover, that appeal was dismissed by the Court of Civil Appeals for want of a sufficient appeal bond.

In Green v. Crow, 17 Tex. 180, the question now before us was expressly pretermitted as not material to the decision, because the estate was insolvent.

And in each of the following cases, which arose under our present Constitution, the estate of the decedent was likewise insolvent; Rainey v. Chambers, 56 Tex. 17; Davis v. McCartney, 64 Tex. 584; Zwernemann v. Von Rosenberg, Adm'r, 76 Tex. 522, 13 S. W. 485; Childers v. Henderson & Co., 76 Tex. 664, 13 S. W. 481; Lacy v. Lockett, 82 Tex. 190, 17 S. W. 916; Cameron v. Morris, 83 Tex. 14, 18 S. W. 422; Ford v. Sims, 93 Tex. 586, 57 S. W. 20.

That is also true as to each of the following cases under that Constitution; the references being to decisions by our Courts of Civil Appeals: West v. West, 9 Tex. Civ. App. 475, 29 S. W. 242; Stephenson v. Marsalis, 11 Tex. Civ. App. 162, 33 S. W. 383; Krueger v. Wolf, 12 Tex. Civ. App. 167, 33 S. W. 663;

Grace, 57 Tex. Civ. App. 386, 122 S. W. 401; and proved that there existed a homestead Davie v. Green, 132 S. W. 874. and exempt property in kind, to which the widow is entitled, the court would properly not include them in the partition." And, so the Court of Civil Appeals, evidently treating the exemption question as not really existing in the case, as then presented, as to either the homestead or other property described in plaintiffs' petition, reversed the judgment of the trial court, which had undertaken to set apart to the widow a homestead and certain other property as exempt, and proceeded to remand that case to the trial court for a partition of all the property among the heirs, directing, however, an adjustment of certain equities which arose upon the claim of the child and grandchildren of decedent's first marriage, growing out of his failure to pay over their share of the proceeds of a sale by him of a tract of land which was community property of that mar

Plaintiffs in error, who appear here in the attitude of general outside creditors of said estate, contend that the decision of this court in Moore & Son v. Moore, 89 Tex. 29, 33 S. W. 217, is squarely in point upon the question before us, and should be regarded as conclusive of this issue; but to neither of those suggestions can we agree. That suit was brought in the district court for partition of the estate of a decedent, embracing certain lands and personal property; all being community property of his second marriage. | riage. Plaintiffs were the widow and son of decedent, and defendants were his child and grandchildren of a former marriage. The Court of Civil Appeals upheld the jurisdiction of the district court upon the theory that there were no outside creditors-plaintiff's suit for partition in that court amounting to a representation by them that there were no debts against the estate, and consesequently no necessity for administration through the probate court, and the allegation in the answer of the defendants being that there were no debts against the estate other than that which some of the defendants as serted in favor of themselves, which allegation of the defendants was not controverted by either pleading or evidence and also held that, having thus acquired jurisdiction over the subject-matter, and to avoid a multiplicity of suits among the parties, the trial court properly proceeded to an adjustment of the equities of the parties as among themselves as joint or common owners of all the property, and to a final partition thereof. The widow, who was the sole such constituent of decedent's family who survived him, was one of the plaintiffs, as we have seen, who filed suit for partition of the property. There was no pleading to the effect that she was entitled to, or that there existed in fact, a homestead or other exempt property. The widow did not ask to have the homestead or other property set apart to her as exempt. As to homestead and other exempt property, the Court of Civil Appeals found that "there was no evidence in regard to it, and the verdict made no finding on the subject." Such being the state of the pleading and the evidence with regard to homestead and exemptions, the Court of Civil Appeals treated as fundamental error the action of the trial court in setting apart to the widow a homestead and other property as exempt, there being no assignment of error thereon, and, in anticipation of another trial of that cause below, directed that, “if it should be alleged

The estate was likewise insolvent in each of the following cases, which arose under earlier constitutional provisions: Green v. Crow, 17 Tex. 180; Reeves v. Petty, 44 Tex. 249; Horn v. Arnold, 52 Tex. 161; Scott v. Cunningham, 60 Tex. 566; Watson v. Rainey, 69 Tex. 319, 6 S. W. 840; Gaines v. Gaines, 4 Tex. Civ. App. 408, 23 S. W. 465.

This court, in an opinion by Associate Justice Brown, now Chief Justice, affirmed that decision of the Court of Civil Appeals, but held, expressly, that by filing her said suit for partition of all of said property, including that which in this court was claimed by her as homestead, she waived her right to have the homestead and personal property exempt from forced sale set apart to her use, and all of said property thereupon became subject to partition among the heirs, and that in such partition the aforesaid equities should be adjusted as therein directed. It is true that, in deciding that case, this court said, "Upon the death of Moore his estate vested in his heirs and his surviving wife, subject to the payment of his debts;" but evidently that was said in the light of the above-mentioned facts of that case, particularly those relating to homestead and exemptions, involving absence of pleading, proof, and verdict thereon, and upon the theory that all questions as to homestead or exemptions had been practically eliminated.

There are various other Texas decisions which bear more or less upon the question which we are now considering; but diligent search has failed to reveal even a single case in this cour or in any of our eight Courts of Civil Appeals, in which the point here involved is shown to have been squarely presented by reason of the solvency of the estate, or expressly decided.

It is therefore necessary, in determining the issue in this case, to briefly consider, anew, various provisions of our existing state Constitution and statutes which bear upon it, in doing which we will be aided greatly by numerous former decisions construing them in cases of insolvent estates, and in some degree by decisions construing earlier statutes under previous Constitutions, as applied to insolvent estates.

By sections 50, 51, and 52 of article 16 of the present Constitution of Texas of 1876, the homestead of a family is defined; it is

ti