4 Tex. 61 | Tex. | 1849
The only question presented by the record is that raised by the first exception, as to the necessity of an averment in the petition of the presence of the defendant in the county at the time of the commencement of the suit.
The act to regulate proceedings in the District Courts (Acts of 1S4G, p. 363, sec. 1) provides that “ no person who is an inhabitant of this Shite shall be “sued out of the county where he has his domicile,” with certain exceptions, of which the second is, “in case the defendant is a transient person, in “which case he may be sued in whatever county he may be found.” The 5th section of the act requires that the petition shall state the residence of the parties, if known. In the absence of this.provision, it would not be necessary, in general, to state the residence of the defendant; but if sued out of the'eounty of his residence, that would be matter of defense; and the requirement does not apply to a case like the present, and cannot, therefore, furnish the rule for the government of this ease. By the common law, in a transitory action like the present, the plaintiff might lay tile venue in any county; and it was optional with him where he would bring his suit. The first section of the act above cited prescribes a different rule where the defendant is an inhabitant of the State; that is, that ho shall not be sued out of the county where lie has Ins domicile. But the exception cited takes the case of the defendant, who is a transient person, out of the general rule prescribed by the statute, and makes him liable to be sued wherever found. Where the defendant has a residence, the statute requires it to be stated in the petition; hut where he has none, there is no statute which requires a statement of tiie place where he is or may be found. . And we are aware of no rule or principle of law which requires that statement. His case does not come within the statutory rule requiring the statement of his residence; and by the common law it was not necessary. There was no necessity for that statement in the present case. It was enough that the petition alleged in effect that the defendant was a transient person, having no domicile, and that the return upon the citation showed that he was found by the sheriff in the county where the suit was brought. If in truth, as stated in the plea in abatement, he had a residence in a county other than that in which lie was sued, the proof of that fact will defeat the action; but the objection was not well taken by exception to the ■petition, and it was error to dismiss the case upon that exception. The judgment must therefore be reversed and the cause remanded for further proceedings.
Judgment reversed.
