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ANDERSON, CLAYTON & CO. v. TERRY. (No. 5362.)
(Court of Civil Appeals of Texas. Austin. May 13, 1914.)
1. PLEADING (§ 104*) - CHANGE OF VENUEPLEA OF PRIVILEGE-REQUISITES.
Rev. St. 1911, art. 1903, provides that a plea of privilege shall state that none of the exceptions to exclusive venue in the county of one's residence, mentioned in Rev. St. arts. 1830 or 2308, exist in the case. Held, that a plea of privilege, stating that none of the exceptions to exclusive venue in the county of one's residence, mentioned "in articles 1194, 1585, of the Revised Statutes," exist in the case, which articles did not relate to venue, was insufficient.
[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 213-217; Dec. Dig. § 104.*] 2. PLEADING (§ 8*)—CHANGE OF VENUE-PLEA OF PRIVILEGE.
An allegation in a plea of privilege that the suit did not come within any of the exceptions provided by law in such cases, authorizing suit to be brought or maintained in the county of Milam or elsewhere outside the county of Harris, was a mere conclusion of law, and ineffective.
[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 12-282, 68; Dec. Dig. § 8.*]
Appeal from Milam County Court; John Watson, Judge.
Action by C. H. Terry against Anderson, Clayton & Co. Judgment for plaintiff, and defendants appeal. Affirmed.
R. E. Goree, of Houston, and Henderson, Kidd & Gillis, of Cameron, for appellants.
KEY, C. J. C. H. Terry brought this suit against Anderson, Clayton & Co. and certain other defendants, and, from a judgment rendered in his favor against Anderson, Clayton & Co. the latter have appealed.
ferred to point out the exceptions to the stat-
That statement contained a conclusion of law in the mind of the person who prepared the plea. The statute does not require or authorize the making of such general statement; nor do we feel justified in holding that such statement will supply the omission to state that which the statute requires.
No error has been shown, and the judgment is affirmed. Affirmed.
NOBLE et al. v. BROAD. (No. 5335.)
JUSTICES OF THE PEACE (§ 72*)—JURISDICTION
 Appellants filed a plea of privilege to be sued in another county, and the only question presented by this appeal is the action of Under Rev. St. 1911, art. 2308, requiring the trial court in refusing to submit that suits before a justice of the peace to be complea to the jury. Article 1903 of the Revised menced in the county in which the defendants, Statutes requires, among other things, that or one of them, reside, except in certain cases, among which is a suit upon a contract in writsuch a plea of privilege shall state "that none ing promising performance at a particular place, of the exceptions to exclusive venue in the which may be brought in that county, where a county of one's residence mentioned in arti- suit was begun on a promissory note, payable cle 1830 or article 2308 of the Revised Stat-mortgage, against the maker of the note and at a certain place, and secured by a chattel utes exist in said cause." The articles re-the subsequent purchasers of the mortgaged
For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
property, none of whom resided in the county in which the suit was brought, the defendants
other than the maker of the note are entitled to have the suit against them transferred to the county of their residence, since they were not parties to the agreement to pay at the particular place.
[Ed. Note. For other cases, see Justices of the Peace, Cent. Dig. §§ 56, 143-145, 235; Dec. Dig. 72.*]
Jenkins, J., dissenting.
Appeal from Coleman County Court; F. M. Bowen, Judge.
Action by William Broad against T. B. Noble and others. On appeal from a justice of the peace to the county court, judgment
which judgment Noble and McGregor have appealed to this court, urging that the court erred in overruling their pleas of privilege, as well as rendering judgment against them foreclosing said mortgage lien.
None of the defendants resided in Coleman
county at the time the suit was brought, or process issued, or judgment rendered, nor did any of them have possession of the property in question against which the foreclosure was sought, nor were any of them claiming any interest therein; but it appeared that Leroy Vaughan had, prior thereto, removed the property out of the state. Appellants'
was rendered for the plaintiff, and defend-pleas of privilege were in due form and sup
ants appeal. Reversed, with instructions.
Critz & Woodward, of Coleman, for appellants. Snodgrass, Dibrell & Snodgrass, of Coleman, for appellee.
RICE, J. While living in Coleman county, J. R. Hager became indebted to appellee in the sum of $125, and on December 3, 1909, gave him his note therefor, payable on the 1st of March, 1911, at Coleman, Tex., bearing 10 per cent. interest and 10 per cent. attorney's fees, secured by a chattel mortgage on two mares, which was duly filed and registered in said county. Afterwards he removed from Coleman to Clay county, taking said animals with him, without the knowledge or consent of appellee, and there mortgaged the same to T. B. Noble and H. L. McGregor to secure a debt due them, who, when the same matured, brought suit to enforce collection thereof, with foreclosure of said mortgage lien, and purchased said property at their foreclosure sale, crediting the amount paid therefor on their judgment against Hager. They subsequently sold said property to Leroy Vaughan, who paid value therefor. This suit was brought June 14, 1912, by appellee in justice court precinct No. 1, Coleman county, against Hager on said note, and against all of the other parties above named, praying for judgment for the debt against Hager, and for foreclosure of his mortgage lien as against said other parties. Hager answered; but each of the others filed pleas of personal privilege to be sued in the counties of their residences, to wit, Clay and Wichita. On July 28, 1913, judgment went against Hager on the debt, with foreclosure of the mortgage as prayed for, but in favor of Noble, McGregor, and Vaughan on their pleas of privilege, transferring the case to the justice's court of precinct No. 4, Clay county. An appeal was taken to the county court, where the case was tried before the court, without a jury, and resulted in a judgment on the 30th of October, 1913, in favor of appellee against Hager for his debt and foreclosure of the mortgage lien, and against all of the other parties thereto on their pleas of privilege, and for foreclosure of the mortgage lien, as well as for costs of suit, from
ported by the facts, showing that neither of them came within any of the exceptions to exclusive venue mentioned in articles 1830 or 2308 of the Revised Civil Statutes of 1911, and, in view of this, it is urged that since none of the defendants lived in Coleman county, and appellants were not parties to the note sued on, that they were improperly joined in a suit by the payee against the maker of the note, notwithstanding the fact that no personal judgment was asked against them, but only a foreclosure of the mortgage
Article 2308 of the Revised Statutes provides that every suit in the court of a justice of the peace shall be commenced in the county and precinct in which the defendant, or one or more of the several defendants, resides, except in the following cases, and such other cases as are or may be provided by law, etc. Exception 4 provides that suits formance at any particular place may be upon a contract in writing promising perbrought in the county and precinct in which such contract was to be performed, and this exception is relied upon by appellee as authorizing the suit against appellants in this instance.
In the case of Behrens Drug Co. v. Hamil
ton & McCarty, 92 Tex. 284, 48 S. W. 5, the plaintiff brought suit in McLennan county in Comanche county, and against the First against Hamilton & McCarty, who resided National Bank of Comanche. As stated by the court:
Hamilton & McCarty the sum of $1,269.50, with "The object of the suit was to recover against interest, the value of certain merchandise sold to them by the drug company, for which they had agreed in writing to make payment in Mctional Bank of Comanche the value of certain Lennan county, and to recover of the First Nabook accounts and choses in action, alleged to have been transferred and assigned to the plaintiff by Hamilton & McCarty to secure their indebtedness to the plaintiff, and after that transfer Hamilton & McCarty had pretended to transfer the same to the First National Bank of Comanche, and said bank had wrongfully seiz ed and converted them to its own use."
The bank having pleaded the privilege to be sued in Comanche, the county of its residence, it was held that it could not be joined in the suit in McLennan county, on the