265 S.W. 1097 | Tex. App. | 1924
Lead Opinion
We think the contention of Hale and Aycock, that the trial court erred when he overruled their "plea of privilege" and refused to transfer the case to Collin county for trial, should be sustained.
The statute provides that, except in cases it specifies, "no person who is an inhabitant of this state shall be sued out of the county in which he has his domicile." Article 1830, Vernon's Statutes. One of the excepted cases is "where there are two or more defendants residing in different counties, in which case," it is declared, "the suit may be brought in any county where any one of the defendants resides." Subdivision 4 of said article. Evidently the trial court regarded this case as within the excepted class, because Caughan, one of the defendants, resided in Hunt county. But it is held that the defendant residing in the county where the suit is brought must be "a real defendant, and one against whom the plaintiff has a cause of action." Gambrell v. Tatum (Tex.Civ.App.)
The judgment will be reversed, and the cause will be remanded to the court below, with instructions to transfer same to Collin county for trial, as provided by the statute. Article 1833, Vernon's Statutes.
Addendum
I cannot agree to the reversal of this judgment, on the ground that the plea of privilege should have been sustained. In the plaintiffs' petition a good cause of action was stated against the defendant, who resided in Hunt county, where the suit was filed. If that defendant made no answer, a valid judgment might have been rendered against him by default. If, on a trial, the plaintiff had proved the facts he alleged, a similar judgment might have been rendered against the defendant on the evidence. It also appears from the cause of action stated by the plaintiffs that the resident defendant was properly joined in a suit against the nonresident defendants. The liability as pleaded was both joint and several. It is true that the right of a plaintiff to join a nonresident defendant with one residing in the county where the suit is filed, for the purpose of conferring jurisdiction in that county, is not to be determined by the averments of the plaintiff in stating his cause of action. The nonresident defendant may deny the plaintiff's averments, stating the place of residence of any or all of the defendants; or he may admit the residence as alleged, and plead that the resident defendant was not a proper party to the suit, or that he was made a party defendant for the purpose of giving jurisdiction to a court in the county where the suit is filed. The issues thus raised must be tried as any other questions of fact involved in the controversy. If the plea of privilege is properly verified, it is, under the present statute, prima facie proof of what the denial implies. If not controverted by the plaintiff both by pleading and proof, the plea is sufficient to require the trial court to transfer the case. In this case the plea of privilege was merely in the statutory form. It alleged nothing by way of confession and avoidance. *1099
The question upon which I differ with the majority is: What did that plea put in issue? My associates hold that it put in issue not only the fact that Caughan, one of the defendants, resided in Hunt county, but was tantamount to an averment that he was not a proper party to the suit, and, further that he was made a party defendant for the purpose of conferring jurisdiction on a court in the county where the suit was filed. My view of the law is that it put in issue only the averment of the plaintiff that Caughan resided in Hunt county, where the suit was filed. If the nonresident defendants desired to question the propriety of the joinder of Caughan in the suit, and wished to prove that he was joined for the purpose of conferring jurisdiction on the county court of Hunt county, they should have specifically pleaded those facts by way of confession and avoidance. That view of the law is, I think, sustained by the following cases: Pearce v. Wallis, Landes Co.,