Oakes Witt v. Thompson

125 S.W. 320 | Tex. App. | 1910

As finally cast by the pleadings, this was a suit by appellants to recover from appellee the sum of one thousand dollars, the alleged value of certain personal services for which appellee promised to pay in Potter County by a certain time, or to execute therefor promissory notes payable in Potter County. Appellee resided in Erath County and the court sustained his plea of privilege to be sued in the county of his residence.

Appellants insist that the District Court of Potter County had jurisdiction under the seventh clause of Revised Statutes, article 1194, because of their averments that appellee made the promises stated with fraudulent intent to thereby defeat appellants from any recovery. But we think this case distinguishable from the case of Hunt County Oil Co. v. Scott, 28 Texas Civ. App. 213[28 Tex. Civ. App. 213] (67 S.W. 451) and others cited by appellants, and agree with the conclusion of the trial court to the effect that mere reiterations of fraud can not alter the real nature of the suit as shown by the facts alleged, or defeat a plea of privilege otherwise well taken. See Baines v. Mensing Bros., 75 Tex. 203 [75 Tex. 203]; McLaughlin v. Shannon, 3 Texas Civ. App. 136[3 Tex. Civ. App. 136] (22 S.W. 117).

The suggestion that the judgment is not final is not available in view of the Act approved April 18, 1907 (see General Laws, 1907, page 248), which expressly declares that nothing in the Act shall preclude appeals in cases such as this.

We conclude that all assignments should be overruled and the judgment affirmed.

Affirmed.